Monday, December 19, 2011

What Will Your 6 Minute Video Look Like?

One of the most difficult and heart wrenching parts of my job in representing families in wrongful death cases is watching the video compilation/tribute of the deceased person. We've all seen some form of these, as typically the funeral home will take selected family photos and put them to music on a DVD.

The irony of my task is that I'm trying to get to know a person I've never met and never will. And I have to know that person in order to convey what has been taken away from the family. After all, how can you represent a family for the loss of a loved one if you know little about the person who was taken away from them?

Personal contact with your clients is a must. Many times the best place to talk is not in the office, but in their home, where they can open up and share all the wonderful stories about their loved ones--what they enjoyed, made, constructed, or their favorite spot to relax or toil--essentially what made them "them." Often times the stories are wonderful and uplifting even if the tears flow while they're recounting them. It's on their terms and in their comfort zone this is exactly where these stories need to be shared.

But the video tribute always gets to me. It's a series of snapshots in happier times where you're given a small window to peek into the lives of others. You see the progression of a family from childhood to youth to marriage and children and beyond. You feel the enormity of the family's loss as best you can as an outsider, and it is a huge reminder of the enormity of the task placed squarely on your shoulders as their attorney.

And, I have to confess, it is a stark reminder of my mortality. A lifetime reduced to a six minute presentation. It often makes me wonder: what will my six minutes look like? What will any of ours look like? And then it's back to work, and the grind of more immediate and weighty matters, the things you can't compile in a video. Things like justice and accountability.

Thursday, December 1, 2011

One Good "Legal" Reason For Not Eating At Chik-Fil-A

Nobody likes bullies, whatever form they come in. Chik-Fil-A has apparently unleashed its legal bullies from the coop and is threatening a Vermont artist for selling "Eat More Kale" T-shirts and apparel. Their legal theory? The "Eat More Kale" slogan infringes on its "Eat More Chikin" and is in violation of trademark laws. According to a recent news account:
Muller-Moore, who describes himself as a folk artist who earns a living working as a foster parent for an adult with special needs, said he started using the phrase "eat more kale" in 2000. A farmer friend who grows kale, a leafy vegetable that grows well in Vermont and is known for its nutritional value, asked Muller-Moore to make three T-shirts containing the phrase for his family for $10 each.

A few weeks later, the friend told Muller-Moore that people kept asking for the shirts. The phrase helped him get his silkscreen business going, which he later expanded through the Internet. Now, he prints "eat more kale" on hooded sweatshirts too. And he has the words printed on bumper stickers that are common throughout central Vermont.

Chick fil-A lawyers have threatened to sue him if he does not stop printing the shirts and have demanded that he turn over his website to them. This is yet another example of of corporate legal bullying at a time when the corporate world is lobbying endlessly for "legal reform" and limiting consumer and injury lawsuits against them.

Tastes like hypocrisy rather than chicken to me. Don't these companies have anything to do rather than go after a small time artist promoting green leafy vegetables? I have my own phrase that I will donate to Chik Fil A that they can trademark free of charge. "Uz Less Lwyerz...And Fry More Chikin."

Tuesday, November 15, 2011

"Roaches On A Plane" Lawsuit Is Raunchy.

"Snakes On A Plane"--move over. We have a new plot for an action thriller thanks to a Charlotte attorney who's launched a lawsuit against an airline because some cockroaches were roaming around in the plane during a short flight. He's suing for damages in excess of $100,000 for "emotional distress" and other associated psychological ills.

As they say on ESPN, "C'mon, man!" Really? As a personal injury attorney, I want to say thanks to this colleague. Thanks for adding to the list of goofball lawsuits that make it into the media, and feed into all the negative stereotypes about our legal system. You know, the ones people ask me about at a party or bring up when I am picking a jury during a trial where my client has LEGITIMATE injuries. It's funny how miscreants like drunk drivers can wallop people over and over again, I'll file a lawsuit, the claim is either settled fairly or tried to a jury, and the media never reports it. That's not newsworthy. But a $100,000+ lawsuit THAT WILL GO NOWHERE is now plastered all over the media.

I'm reasonably sure "roaches on a plane" will make the list as a topic of discussion the next time I'm in court. And thanks too for giving The Chamber Of Commerce's militant "Institute For Legal Reform" more fodder/propaganda for its mission: to wipe out or limit YOUR INDIVIDUAL right to access the courts, unless you're a corporation, and then you can sue the pants off of anyone without restriction.

If this lawsuit even survives a motion to dismiss, if I were a judge I would award damages of a few extra bags of complimentary peanuts for his next flight. He could use them as a repellent. After all, cockroaches don't like peanuts. I've heard that if they eat them they will blow up and die.

OK, maybe that's an urban myth, like Juicy Fruit gum and moles and Alka Seltzer and seagulls. Add this lawsuit to the list of "urban myths" about our legal system. No matter what The Chamber of Commerce says in their latest "e-mail alerts," these cases are the exception, not the rule.

Friday, November 4, 2011

An Overlooked Element Of Damages/Losses In Personal Injury Claims

The accident scenario is a typical one: the client is creamed in a collision. After the initial bevy of acute care treatment in the hospital or ER, the client then begins the long, arduous journey of a series of diagnostic tests, stints of physical therapy, surgery, all the post surgery rehab (usually more therapy), and follow up appointments with their medical provider of choice.

What we as personal injury attorneys frequently overlook is all the time and effort it takes for clients to schedule around and attend all the appointments with therapists, etc. Quite simply, it is a huge hassle just to make all these appointments. And expensive too. With the cost of gas at over $3 a gallon, it all adds up.

Recently we calculated all the miles a client (who was broadsided by a drunk driver) travelled for numerous trips to therapy, doctors appointments, rehab after surgery, etc. It was staggering--over 1,000 miles of local driving. A few minutes on Google Maps makes this task simple and easy.

Do insurance companies recognize these losses in settlement negotiations? Usually not. If they do recognize them, they typically don't reimburse these losses on a dollar for dollar basis.

But that's not a reason to forego claiming mileage and the cost of gas and other inconveniences during settlement negotiations. Where is the REAL value in pointing out all these losses? At trial. Even the most skeptical juries can appreciate these losses, even if they struggle with how much an auto accident victim's "pain and suffering" is worth. In fact, this evidence can actually help a jury when calculating a pain and suffering amount when deliberating on a verdict.

After all, it's hard enough to deal with physical pain and disability associated with an auto or trucing collision. It's even harder when you have to make arrangements to leave work early, get in your car, show up early for your appointment, go through the rigors of physical therapy, and drive home and deal with the ordinary aspects of life like preparing meals, laundry, helping the kids with homework, etc.

Sometimes taking a step back and looking at all the ripple effects of an injury can help us see the bigger wave or picture in terms of our client's damages and everything they've gone through. The old adage of "walking a mile in the other person's shoes" applies here...

Tuesday, November 1, 2011

Surgical Fires In The Operating Room

Today while working out at the local YMCA I saw a report on The Today Show about the problem of patients catching fire during routine operations. The crowd gathering around the TV was shocked to learn that this can happen. Actually, it has been occurring for quite some time, as I have written about here and here.

It even happens at world renowned institutions like The Cleveland Clinic. In fact, it is estimated that 500-600 surgical fires are reported every year. Since not all states are required to report surgical fires, the number might be higher.

Every hospital should have training protocols in place to educate the surgical team on how to prevent these fires, because they are absolutely preventable. So ask your surgeon if he or she has experienced any fires during surgery, and also ask about any training the staff has undergone. It's a reasonable question that any patient deserves an answer to before going under anesthesia...

Friday, October 21, 2011

What Auto Coverage Do You REALLY Have if You're Injured While Driving A Company Car?

If you are driving a company car, you may have NO uninsured or underinsured insurance coverage (known as "UM/UIM") to protect you and your family if you're involved in a serious crash. This can happen even if you're told by your employer that your company car has "full coverage." Here’s what can happen and what you need to know in order to avoid a “no coverage” gap.

The scenario: You were told by someone in your company that the company car has “full coverage.” Or, perhaps you simply assumed it. Months or years later, you are seriously injured in a crash by an uninsured motorist (no liability coverage) or an underinsured motorist (someone with low liability limits). You miss months or years of 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 did not include uninsured/underinsured motorists coverage because your company declined the coverage (perfectly legal in Ohio and other states). Problem: nobody ever explained that to you before the crash...

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 at the time of the crash?

How do you avoid huge monetary losses and possibly bankruptcy over a collision that was not your fault while driving a car you were told had "full coverage?" There are basically two things you can do to find out whether your employer has purchased any UM/UIM coverage at all, or enough 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 personal auto agent who insures your family vehicle(s) 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 more 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.” And if your company car is “made available for your regular use,” bingo – the exclusion applies, and you’ve now got no coverage.

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.

These simple steps will close this potential “no coverage” gap on your company car.

Wednesday, October 19, 2011

What To Do If "The Insurance Adjuster Is Coming To My House To Offer Me A Settlement."

Dallas, Texas Attorney Jeff Rasansky hit the nail on the head recently in his post about insurance companies' recent amped up tactics to immediately cash out auto accident victims' injury claims with "offers" of settlements within days of a crash.

This tactic is not limited to Texas and has infiltrated into Ohio for quite some time now. In fact, let me share a similar experience on an Ohio auto collision/personal injury case I am handling that proves this is becoming an all too familiar tactic.

A few moths ago, a client calls me. She is a mother of three children, including a nine month old child. She's taking her two children to elementary school, along with two neighbor kids and her nine month old child. She's rear ended at a high rate of speed while attempting to turn into the school lot. All the children are taken to the ER to be evaluated. She declines treatment because she's concerned about getting all the kids evaluated (imagine the chaos of having your three kids in the ER along with the neighbor kids).

The next day, an adjuster shows up at Mom's house and writes checks for $250 for each kid and her. She leaves some "releases" for Mom to sign, meaning that by accepting the checks and signing the releasee, the claim will be over and closed. She eventually cashes the checks, but does not sign the releases. In the meantime, she starts to develop neck and back pain and calls a chiropractor to get checked out.

She informs the adjuster the next that she's seeing a chiropractor to be evaluated. The adjuster informs her that her claim is over and therefore they will not honor or pay for any medical bills. Mom tells friendly adjuster that she did not even have a chance to be seen for her injuries in the ER and that she did not sign any release. Too bad, says the adjuster: claim over since Mom cashed the checks. Mom returns the checks and writes a letter to the adjuster indicating that she had no intention of closing out her claim. The letter is ignored.

After hiring me, I write the friendly adjuster and ask that the claim be re-opened. I'm told in no uncertain terms to pound salt. The next day, a lawsuit is filed. Eventually, I get a call from an attorney for the insurance company, informing me that the insurance company is now backing off and honoring the claim.

It took a lawsuit to expose and nullify this strong arm tactic. Here's the insurance company's playbook: get to auto accident victims as soon as possible, throw an immediate, small amount of money at these folks in a bad economy, and play the "you settled your claim" card if the person seeks medical treatment even a few days after the collision. This tactic is a well organized scheme to pray on folks who are vulnerable or innocently ignorant about how the claims process works.

So what's the solution here? Simple. Decline the friendly adjuster's invitation to come to the house and "talk" about your claim. You should tell them that if they want to send somebody to appraise your car, that's OK, but you should never discuss any potential personal injury claim with them immediately after the collision. It's simply not in your best interests to do so. Between these shenanigans and all the other "routine paperwork" thay may ask you to sign (like a blank medical authorization giving them a license to fish around in your medical history), you may well sign your rights away and be stuck down the road if you develop a medical problem down the road.

Bottom line: they are not coming to your house to be "fair" to you. They're coming to cash you out and cut off their potential losses and liability. That's all you really need to remember...

Wednesday, October 12, 2011

Read On If You Think You Have A "Full Coverage" Policy On Your Motorcycle Or Scooter

Client is T-boned at an intersection while on a scooter. Bad injuries--they usually are when scooter or motorcycle meets car. Ankle fracture and two shoulder surgeries for a total of 3 surgeries. Lots of physical therapy lasting well over a year and medical bills approaching $40,000.

The negligent driver who caused the collision? He had only $100,000 liability limits. Not nearly enough to compensate the injured person for all of her injuries. Before the crash, she was sold a "full coverage" policy that included $25,000 in Uninsured/Underinsured Motorists' (UM/UIM) coverage.

Under Ohio law, this policy provides NOT A PENNY of coverage for her. It is a totally useless policy because in order for her to collect a penny of coverage, she has to have more in UM/UIM coverage than the negligent driver had in liability coverage--in this case, more than $100,000. The result? She paid for $25,000 in coverage and gets nothing from her own insurance company. She is limited to the $100,000 liability limits under the negligent driver's policy.

The agent who sold this worthless policy has committed "agent malpractice" in my opinion. Why on earth would an agent sell her such a low policy amount on a scooter or motorcycle knowing that (1) she can't collect any money under her UM/UIM coverage unless she has more in UM/UIM coverage than the liability limits of the negligent driver; and (2) anyone operating a motorcycle or scooter who's on the receiving end of a collision with an automobile is probably going to sustain some serious injuries as a result?

None of this was explained to her when the agent "recommended" this policy. And, by the way, she has to repay her health insurance company out of her settlement for the $40,000 it shelled out for her hospital, surgery, and rehab bills.

Not a good deal at all. All of this could have been avoided if the agent had sold her a policy that included at least a minimum of $250,000 in UM/UIM coverage (I personally would recommend a minimum of $500,000 if not more). Here's the kicker: she probably could have bought $250,000 in coverage for about $100 more per year.

Unfortunately I've seen this scenario over and over and over again. So all of you motorcyclists and scooter riders, do yourself a favor: call your agent and increase your coverage. You'll be glad you did if some irresponsible motorist turns left in front of you or runs a red light...

Tuesday, September 13, 2011

Does Tort Reform Create Jobs?

For those unfamiliar, tort reform is politicians passing laws limiting your right to bring a lawsuit and limiting what you can recover due to someone else's negligence. Standing directly behind these politicians, like a hand on a shoulder, are special interest groups who "lobby" (I use that term lightly--think $$$$) for passage of these laws. The players? Liability, medical malpractice, and health insurance companies, medical groups, The Chamber of Commerce, and about 287 other well heeled (think $$$ again) groups. Their premise? Cutting down your individual rights is good for you, and good for all of us, because it creates jobs.

It's a simple mantra: less lawsuits means more jobs. Nice and "bumper stickery." The other day I found this link searching the "Internets" where the Governor of Mississippi is claiming that after tort reform measures passed there, 41,000 jobs were created. How he specifically tied this to passage of tort reform laws is unclear. It's like saying that Captain Crunch makes the sun shine because I ate it for breakfast three days in a row and then the sun came out, but let's take The Governor at his word and accept it as true.

Well who cares about Mississippi? What about Ohio? Let's review. In 2003, Ohio pols passed "medical malpractice reform" and now we have caps on damages ranging from $250-500,000 for people who win their case and prove in court they've been injured due to medical negligence (Note: there IS no cap for wrongful death medical claims because The Ohio Constitution forbids it).

Not to ignore the "lobbying" of other corporations who got in line after the 2003 reforms, in 2005 Ohio pols passed "general tort reform" for ALL types of Ohio personal injury claims. Those caps range from $250-350,000, with exceptions for certain catastrophic injuries.

We've had almost a decade now of a burlap sac of "legal reforms" in Ohio. And we're not alone with just our like minded Miss. friends. Over 32 states now have "caps" on damages that limit what those maimed and injured can recover in a lawsuit.

So where are all the Ohio jobs that were supposed to flood into our state after these reforms? Where are all the decreased health insurance premuims in Ohio? Where are the lowered health care costs and lower medical bills?

If the "tort reform means more jobs" premise is true, the economies of 32 states should be booming right now with an explosion of jobs and low unemployment rates, right?

How is this "let's trade your rights for jobs" premise working? Anyone? Pass the Captain Crunch please. It's getting cloudy here in The Buckeye State.....

Thursday, September 1, 2011

Anatomy Of A Lawsuit (Part 2): The Investigation

“Do I have a case?” It’s a common question in any initial client meeting. The answer really depends on what happened to you, and this in turn will determine both the timing and extent of investigation needed to answer this question.


By and large, many auto accidents are straightforward. If you were rear ended or broadsided at an intersection, usually this is documented in a police report, the at fault driver is cited, and frequently that person’s insurance company will acknowledge responsibility for the collision (responsibility for all of your medical bills, lost wages and injuries is another matter—don’t expect the insurance company to roll over on those issues). These situations many times obviate the need to launch a detailed investigation. However, there are many exceptions to this rule.


In these situations, many times it is a good idea to hire an accident reconstruction expert to review any forensic evidence such as skid and yaw marks left at the scene, any of the vehicles involved, or any other physical evidence. Occasionally, law enforcement accident reports miss or fail to document critical evidence, making it necessary to conduct a scene investigation with the accident reconstructionist, who can prepare a full scale diagram of the accident specifics.

Large truck collisions present especially unique concerns as I have written about here and here. Time is frequently of the essence and the trucking company must be put on immediate notice of a potential lawsuit in order to preserve a slew of internal documents that may shed light on how and why the collision occurred.


The timing of any medical malpractice investigation depends on a whole host of factors, and there are many traps lurking here. The starting point of any medical malpractice investigation is obtaining the medical records in issue. However, It is not uncommon for a malpractice victim to still be in the throes of medical treatment weeks or months after the initial acts of malpractice. If records are requested while you are still receiving treatment from the physicians who “inherited” your treatment, they may get wind of your request, and this may impact your medical treatment (think “white coat of silence” and this will make more sense). Since your main goal is to get the best treatment you can, the last thing you want to do with a premature request for records is tip off your new physicians that you may be looking into a potential investigation of the doctor who may have committed malpractice.
On the other hand, since Ohio’s statute of limitations is so short (in many cases one year), there may be no choice but to request the records immediately due to time constraints. However, all these things must be balanced when any investigation is launched.

In other cases, particularly wrongful death cases, sadly many records are not complete until weeks after the incident. You should allow a reasonable amount of time to pass to ensure that the records are complete before you request them.

As you can see, each situation is unique, and timing is everything. Only an experienced personal injury can guide you through some of these minefields in a way that will allow for a thorough investigation before answering your legitimate question: “Do I have a case?”

Wednesday, August 17, 2011

Hot Dog Legal Wars: Who's The Biggest (Wiener?) (Whiner?)

Hot dog companies suing the casings off each other. Seriously? You bet, according to a recent news article. With apologies to Bruce Buffer, the ever present UFC announcer, in one corner is Kraft Foods, home of the Oscar Mayer Wiener. Their corner team consists of a paltry four attorneys. In the opposite corner is Sara Lee and the Ball Park Frank, which has "mustered" (ooh, pardon the bun..err...pun) an entourage of five lawyers.

A reporter for The Naperville (Ill.) Sun aptly summarized this lawsuit lunacy when he noted:

In a development that proves we are entering the dog days of summer, as well apparently as the fact that large corporations have to find some way to justify all the money they spend on lawyers, two of the Chicago area’s biggest companies went to trial Monday over whether they have been making false advertising claims about their hot dogs

Really? Two huge companies seeking to spend probably millions in legal fees grilling and roasting each other over claims and counterclaims of false advertising and unfair "taste tests?" To me, that sounds like a whole lotta bun and no dog, or at least a colossal waste of judicial resources and time (no word on whether the late great U.S Supreme Court Justice Felix Frankfurter will return from the heavens to preside over the case).

But here's what really skewers me. The Chamber Of Commerce and its militant wing, "The Institute For Legal Reform," is famous for sending out alerts and e-mail blasts about the latest "frivolous lawsuits" that supposedly cost us jobs, drag down the economy, and raise the price of consumer goods. According to The Chamber, frivolous personal injury lawsuits are as Un-American as a tofu hot dog served at a VFW picnic on the 4th of July.

But when it comes to two colossal corporations using the legal system in no holds barred, dog eat dog fashion, this is perfectly OK to The Chamber. Wouldn't millions in corporate legal fees conceiveably drive up the cost of Oscar Meyer wieners and Ball Park franks? Yet, you won't see any "e-mail alerts" or railing on this ridiculous lawsuit because corporations' full access to the legal system is "The American Way" and should be cherished. To do so would step on a few corporate toes, and The Chamber will have nothing of that.

Why the double standard? Because they don't care about your individual access to the legal system if you get maimed or screwed. In fact, they spend millions each year lobbying for laws that make it as hard as possible for you to sue corporate America even for LEGITIMATE claims and injuries.

There's two sides to the bad lawsuit coin, folks. But you'll hardly hear about legal laughers like these corporate "wiener wars" unless you dig really hard or stumble upon websites like this one.

All this talk about hot dogs is making me hungry. I think I'll go grill some Nathan's dogs (my preference anyway). I'm sure The Chamber of Commerce will recommend that I wash them down with some McDonald's hot coffee...

Tuesday, August 2, 2011

The Anatomy of A Personal Injury Lawsuit (Part 1)--The Initial Meeting

Almost all of our Ohio personal injury clients have had no dealings with lawsuits or the legal system. Their only "experience" may have been what they've heard from others or what surfaces in the media. Consequently, they understandably have no frame of reference for the day to day workings of our civil justice system. When this truism is mixed with the LOADS of misinformation floating around about our legal system (hatched by interest groups too lengthy to mention here), it can be a prescription for a lot of confusion.


This is often the first opportunity we have to educate our clients about what is involved in the life cycle of a personal injury claim. But before this occurs, the best thing we can do is simply listen. Clients have understandable concerns and questions like:

Who's going to pay for my medical bills?
Will my lost wages be covered?
How long will my claim take?
Will a lawsuit be necessary?
What is my claim worth?

Many of these questions can be answered at the initial meeting. In fact, our free book, "Your Ohio Accident: Sorting Through The Insurance Maze," addresses many of these questions. One question that CANNOT be answered at the initial meeting is the value of the claim. There are too many variables that come into play that make that question pure guesswork until more information is learned from the accident report, witnesses, the medical treatment, what's contained in the medical records, and whether the client's injuries are permanent or merely temporary in nature.

But for certain, the initial meeting should not be a 15 minute revolving door one, and it should not be a high pressure "sign the contract right now for us to get started." Anything else is a red flag that should send you right out the revolving door to someone else...

Thursday, July 21, 2011

Preserving Evidence In An Ohio Truck Accident--And The Most Important Thing To Do After An Accident

When it comes to semi or large truck accident cases, The Rolling Stones were wrong. Time is not on your side. As the clock ticks on your truck collision claim, here's what you need to know.

There is a little secret known to some (but not all) attorneys who routinely handle trucking accident cases in Ohio or any other state for that matter. This gem packs a powerful punch, and is an absolute must do for any attorney who represents truck crash victims. Properly done, it can set the table for cementing a solid liability case against a negligent truck driver and his or her employer. It can even be crucial in exposing a trucking company to a claim for punitive damages.

It is a "spoliation letter." A spoliation letter is a detailed letter sent to the proper entities that demands that a truckload (pardon the pun) of information and documents be immediately preserved and not "spoliated" (legalese for destroyed) in the event of possible future litigation against the trucking company.

Why is a spoliation letter so important? A thumbnail sketch of the anatomy of a trucking accident and lawsuit will shed some light. Reduced to its essence, any trucking accident involves a relationship between 3 crucial elements: the driver, the truck, and the trucking company.

There are a myriad of possibilities that cause a truck accident. Was it driver error? Was the truck overloaded or the cargo not properly secured? Was the driver fatigued or over his federally mandated hours of service driving requirements? Did improper maintenance contribute to the crash? Was the truck properly inspected at the necessary intervals? Or, did the driver have no business being behind the wheel due to a poor accident history or a shoddy background check?

Trucking companies are required to keep detailed records on all these issues as mandated by The Federal Motor Carrier Safety Administration (FMCSR) Regulations and, in Ohio, through the PUCO. But here's the rub: many of these records are subject to a retention period of as little as six months.

A thorough spoliation letter sent immediately after a trucking accident, which details a request for all these records, coupled a request to preserve them, is essential to avoid a lawsuit defense down the road of, "gee, we got rid of those records after _____ months in compliance with federal regulations."

Example: recently I represented a dock worker injured in a loading dock accident when the truck driver failed to set the brakes, and the truck drifted during loading. The driver had a standard "accident kit" (per his company's written policy) that included a disposable camera. A spoliation letter was immediately sent, which included a request that all accident photos be preserved. The trucking company denied liability, and a lawsuit was filed.

Sure enough, the trucking company denied that it had any photographs of the accident scene. One small problem: the driver was eventually located, and he claimed that not only did he take pictures, he turned them into the Safety Director (who denied all of this under oath).

Armed with this "photos--what photos?" defense, and our initial spoliation letter, we filed a motion to include a claim for punitive damages against the trucking company for "spoliation of evidence." There is ample law that allows a claim for punitive damages when a trucking company is on notice of possible litigation, and allegedly destroys or loses evidence. After the judge granted our motion, the case settled just before trial.

So here's the takeway: what's a surefire way for crucial evidence in your trucking accident injury case to be forever missing like the infamous Watergate tapes? Simply wait on insurance companies' promises to "treat you fairly" after an accident, eventually receive a crappy settlement offer, finally decide to call an attorney, and then let him or her tell you that crucial evidence is now missing due to a long lapse of time.

Tuesday, July 19, 2011

How Do You Select A Competent Ohio Malpractice Attorney?

Choice can be a good thing when it comes to hiring any professional. But when it comes to hiring an Ohio malpractice attorney, how do you sort through the seemingly endless maze of phone book and TV ads, and a dizzying array of Internet websites? Here are some tips that will hopefully make your choice easier.


I've never been a fan of circuses. Too many clowns for my liking--in fact, one clown is one too many in my opinion. And the food is downright awful. The standard fare cotton candy and circus peanuts not only lack any nutritional value, but give me a sugar buzz, splitting headache as well. In many ways, a circus is a good metaphor for the majority of websites designed to "help" you select a medical malpractice attorney.

For example, some websites are "generic" sites that do not identify a specific malpractice law firm or attorney. Many are nothing more than "clearinghouses" and are actually out of state firms that attempt to "sign you up," then refer you to an attorney in your local area. The catch? The "referring" firm takes a cut of the potential recovery in your case, and you have no choice over the local attorney whom you're referred to. If you like the idea of a roundabout, "forced marriage," feel free to go this route.

Yet other websites merely list firms in local areas who claim to provide legal services like "malpractice attorneys." Take, for example. If you click on "ohio" and "personal injury" and then hit the link for "Canton," you're given a listing of various firms from all over Northeast Ohio who claim to litigate Ohio malpractice claims. The problem? Many of these firms actually represent doctors and hospitals in defending malpractice claims! Obviously, if you're a malpractice victim looking for an attorney to represent you against a doctor or hospital, you have no way of identifying which of these firms represent malpractice victims or defend those claims--unless you visit countless firm websites and/or make numerous phone calls.


As you fine tooth comb numerous law firm websites, ask yourself this question: how many firms and attorneys devote countless website text and video talking about themselves? How do adjectives like "experienced, "tough," "committed," "aggressive" help you select a competent firm when most firms are touting these superlatives? If you think about it, have you ever viewed a law firm website that says: "We're not all that experienced, tough, compassionate, or competent but we would like to represent you?" The point is this: "bragging" websites are a lot like that circus cotton candy: airy, doesn't last long, and seriously lacks any real substance.

The same holds true for all those TV ads. Does this mean that these firms are not competent to handle your malpractice claim? Of course not. But it does mean that you have to dig deeper to cut through all the cookie cutter claims of "greatness" that exist on the airways or on the Net.

There is a better way to hack through this forest. The absolute best way to start any search for an attorney is to ask friends, neighbors, or those connected with the legal system, for a recommendation or two. Second, look for websites that actually give you useful information that may answer some questions you may have before you ever pick up the phone or send an e-mail inquiry. Third, an in person interview is a must. You should expect not to be "pressured' to sign anything during your initial interview. And be on the lookout for any attorney or firm that tells you that they "are the only one" that can adequately represent you. No lawyers should feel the need to blow out some other lawyer's candle in order to light their own.

So shop around. And make your choice carefully and methodically.

Friday, July 1, 2011

Reason No 72 For Ohio Drivers To Buy High Amounts Of Uninsured/Underinsured Motorists' Coverage

You may get creamed by a negligent Ohio driver with this language lurking in an auto policy:


How does this language find its way into an auto policy? Simple. Let's say a family has a family member with a horrible driving history. Typically, this involves a young driver who lives in the family household. He may have numerous speeding tickets, DUI's, and/or prior accidents. one of two things happens. The insurance company issuing the policy may conclude that the bad driver is too much of a liability risk, and demand that the driver is not covered under any policy issued to the household or the vehicles insured under the policy.

Secondly, the family itself might request that the family member be excluded because they don't want to pay the increase premiums for the driver, in order to obtain a cheaper insurance quote. Under either scenario, this exclusion will find its way into the policy. Translation? If this horrible driver creams you and puts you in the hospital, there's no coverage and no obligation for the insurance company to pay for your medical bills, lost wages, and injuries.

Ouch. In fact, double ouch. How do you avoid this mess? The only way you can protect yourself is to purchase ample amounts of "Uninsured/Underinsured Motorists' Coverage (known as "UM/UIM") FROM YOUR OWN INSURANCE COMPANY. If the bad driver is considered "uninsured" because of this exclusion, you can make a claim against your own insurance company for all of your losses. How much coverage should you carry? At least $500,000. The good news is that this coverage is CHEAP. I have had many clients bump their UM/UIM coverage from a standard (and insufficient) $100,000 to $500,000 for just over $100 per year!

We explain this in our FREE book: "Fully Exposed: How Auto Insurance Companies Are Stripping Your Auto Policy. You can order it by going to our website ( and clicking on the book.

Thursday, June 23, 2011

Can An Insurance Co. Deduct Taxes From Your Ohio Auto Accident Lost Wage Claim?

So you want to handle your own personal injury case with the at fault party's insurance company? If you were injured in an Ohio auto collision and missed considerable time from work, it stands to reason that you have a right to recover for your lost wages. But what is the measure of your lost wage claim: your gross lost wages, or your net lost wages after taxes are withheld?

Insurance companies are famous for arguing that they are only obligated to pay your net lost wages, which of course means a 30% discount in many instances.

Insurance companies are dead wrong on this issue. Under Ohio law, a jury is instructed to consider the gross income of the injured person or decedent (in the event of a wrongful death) and not the net income after taxes and deductions.

That has been the law of Ohio for years now. But that does not stop insurance companies and adjusters from insisting, time and time again, that they are only responsible for paying an injured person's net wages. Why do they argue this in the face of clear Ohio law prohibiting this argument? Because they can, particularly if they are dealing with a person (or even an attorney) who is ignorant of Ohio law.

Remember, their goal is not "fairness" to you as the injured person. Instead, their goal is to close your claim as soon as possible and pay as little as they can get away with paying. Doesn't make them evil, but it doesn't mean you have to roll over and take it because they spout this nonsense or tell you that their "company policy" prohibits paying the gross amount...

Sunday, June 12, 2011

Online Criticisms Of Physicians...Lawsuits Are Not The Answer

It's a brave new Internet world. There are scads of online ratings services that now allow you to rate and discuss your interactions with professionals, including doctors. One Minnesota doctor, who did not appreciate a scathing summary of his interaction with a patient, took the drastic step of suing the reviewer (the patient's son) for defamation.

A Minnesota judge who heard the case tossed it out, however, ruling that the reviewer's comments were opinions that were protected by the constitutional right of free speech:

In modern society, there needs to be some give and take, some ability for parties to air their differences. Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this kind any more or less defamatory.

First Amendment free speech considerations aside, as a practical matter, all this lawsuit did was bring more attention and negative publicity to the online review, and now this physician may be seen as someone who is not opposed to suing his own patients. The old adage "if you're in a hole, stop digging it deeper" applies here to playing the lawsuit card.

Because of the advent of online rating services and reviews, a cottage industry of "web defamation prevention" companies have sprung up. These companies offer "online management" strategies and "agreements" that patients sign promising not to post any review or comment about the physician. This raises the issue of whether positive online reviews of a physician can even be trusted as genuine, or are part of a strategy to elicit only favorable comments.

One the one hand, I can sympathize with any professional who is the target of a scathing, anonymous, online review. It may well be unwarrented, or done for vindictive purposes. But what is worse: resorting to a public lawsuit, or forcing patients to sign gag agreements as a pre-condition to receiving medical treatment? What kind of distrust does that foster in the physician-patient before you as a patient ever make it into the examining room?

On the other hand, a negative review might serve as a reality check if the professional's bedside manner or client communication skills are suspect or lacking. Lawsuits and secrecy agreements aside, the best antibiotic against a bad online review is an old prescription: take the time to be pleasant and thorough with patients or clients, and show some empathy for their worries at a difficult time. Treating people the way you'd want to be treated if you were in their shoes is the best any professional can do. And if a bad online review surfaces that does not accurately portray who you are as a professional, it seems to me that many satisfied patients or clients will agree in a heartbeat to post their positive exeriences with you.

In a world full of comment boxes and tweets, sometimes we make things way too complicated than they need to be.

Wednesday, June 1, 2011

What Happens After An Ohio Wrongful Death Verdict Or Settlement?

Short answer: a lot of oversight from the local Probate Court. Here's the deal: an Ohio personal injury attorney who brings a wrongful death lawsuit on behalf of the family of a deceased loved one actually represents the estate of the deceased person. The estate consists of the "next of kin," which means the spouse, children, siblings, and even more distant relatives as well. If there is a settlement of a wrongful death claim, it is for the estate, and not for any one person.

What happens next? Usually, the next of kin/beneficiaries will attempt to agree amongst themselves as to how any settlement proceeds will be distributed/divided. But even if all beneficiaries agree, it is not etched in stone.

Enter The Probate Court. Ohio's probate courts have jurisdiction over the estate of a deceased person, and this includes any wrongful death settlement. The Probate Court will review (1) the amount, and the fairness of, the settlement; (2) the appropriateness of any attorneys fees and expenses; and (3) whether the proposed amount of the settlement to each next of kin or beneficiary is fair and equitable. The Court has the authority to adjust or modify any distribution proposed by the family. A few examples might be helpful here.


For example, if there is a wrongful death settlement of a deceased spouse/parent, who left a surviving spouse and minor children, The Probate Court will closely review how the proposed settlement is to be distributed to ensure that the minor child's monetary needs are taken care of, maintained, and preserved until (and even after) the child reaches 18 years of age. If any proposed individual amount is unfair to the minor, The Court has the power to adjust or modify the proposed distribution on behalf of the minor.


Same example, but let's assume that a jury returns a $1 million dollar verdict. In that case, the jury has the option to simply return a global or gross amount on behalf of the estate of the deceased person, or break it down individually between the surviving spouse and any children. Even in cases where the jury arrives at an individual breakdown of the $1 million verdct, The Probate Court still retains jurisdiction to approve or modify the final amounts to each beneficiary.

Why all this oversight? Ensuring a sense of fairness to all beneficiaries, especially in the case of minor children, adds an extra layer of protection to the process. And our fees and expenses should be subject to scrutiny as well, for the protection of the client.

Overall, Ohio wrongful death verdicts and settlements are highly regulated. And that's the way it should be.

Sunday, May 15, 2011

Attorney Advertising Gone Bad...And A Lesson For Legal Consumers

The next time you see yet another attorney sales pitch on TV, think: Roni Deutch. Over the last few years, she was all over the airwaves, promoting herself as a tough, experienced "tax attorney" who was going to fight the IRS and save you lots of money.

Not anymore. According to this article, Deutch is closing her law office and surrendering her license. What's more, The California Attorney General's office has filed a $34 million lawsuit against her, claiming she ripped off clients and shredded over 2 million client documents.

The lesson here, if these allegations are true, is that attorney advertising talk sometimes doesn't match the walk and the puffery. Even more disturbing is that there is no way to measure an attorney's competence or trustworthiness from self laudatory, promotional ads.

It's easy to produce a bunch of slick ads if you have enough money. Just witness the explosion of personal injury attorney ads that flood the airwaves. If that's the route injury victims wish to choose, just dial the "1-800-money-for you" number and roll the dice. Or, you can do your homework, and ask for references and examples of an attorney's actual work product.

There's still room for an old school approach to selecting an attorney who will competently handle your legal claim.

Wednesday, May 4, 2011

Records? What Records? One Good Reason To Contact An Ohio Trucking Accident Attorney ASAP After An Accident

They're just a phone call away. A whole team of professionals--accident reconstruction experts, adjusters, and insurance company attorneys. When there is a serious large truck collision, frequently this team is on the scene within minutes or hours. Their purpose? Gathering physical evidence, taking measurements and photos/videos of skid and yaw marks, and plotting diagrams of the accident scene. Sometimes they arrive at an accident scene even before local law enforcement.

Often referred to as "rapid response teams," they've been assembled by trucking insurance companies in order to investigate collisions involving their insured commercial trucks. But the real reason these teams are deployed is simple: to minimize their risk and liability.

In addition to evaluating the accident scene, there is a truckload (pardon the pun) of other information and data that trucking companies gather and analyze. Things like drivers logs, bills of lading, fuel and toll recipts, dispatch, and driver computer records can yield valuable information as to driver location and violation of federal and state hours of service violations. More importantly, satellite tracking systems and GPS data can be matched and compared to paper records. Finally, ECM (Electronic Control Module) data contained in the tractor can often reveal vehicle speed, starts and stops, and the timing and type of any mechanical failures.

As you can see, the paper and electronic trail involving the operation of large trucks can be complex. The problem? Some of this information is subject to limits on how long a trucking company is required to maintain and keep it. For example:

Driver's record of duty status (logs) for day of and day after and thirty preceding days before the crash.

Retention period -6 months 49CFR 395.8

Messages to and from driver and vehicle for day before, day of and day alter the crash from satellite or cellular communications system and ten days preceding the crash:

Retention period -6 months 49 CFR 395.8

Dispatch or computer records for driver involved for day of crash and preceding thirty days - showing pick-up and delivery points and appointments:

Retention period - 6 months 49CFR395.8

Dispatch records - IFTA & IRP 4 yrs.

Driver payroll records or owner operators settlement for week of and week after crash and the preceding thirty days:

Retention period - one year

Fuel receipts and fuel filling records, toll receipts, maintenance receipts for equipment vehicle(s) involved in the crash for day of the crash and preceding thirty days:

Retention period - six months 49 CFR 395.8

Maintenance files and records:

6 months after vehicle leaves control of motor carrier 49 CFR 396.3

Lesson: trucking companies have the upper hand if you're the victim of a crash with a large truck. Don't expect them to do the right thing and preserve any incriminating evidence, particularly if you delay in seeking an experienced Ohio truck accident attorney or firm to represent you. After all, their motivation in dispatching a response team is not necessarily to document and preserve the truth.

Monday, April 18, 2011

Ohio Drunk Driving Case...And How Insurance Company Tries To Hang EVERYBODY Out To Dry

A recent Ohio car accident case (Caraman v. Bailey) really drives home how some insurance companies will stop at nothing to protect their money.


A Progressive insured driver smashes into and injures another motorist, injuring her. He is intoxicated and leaves the scene. It's his fourth DUI and Progressive is aware of this. The injured driver (known as the "plaintiff") brings a lawsuit against the drunk driver,and includes a claim against him for punitive damages. Under Ohio law, punitive damages can be returned against an intoxicated motorist in addition to damages for the injured person's medical bills, lost wages, and physical injuries (the latter damages are known as "compensatory damages"). Punitive damages are designed to punish a wrongdoer for malicious or reckless behavior (like drunk driving), and are usually not covered in a standard Ohio auto insurance policy.

In other words, if you drive while intoxicated in Ohio and are sued, your insurance company may cover the injured person's "compensatory damages," but you are on the hook personally for any punitive damages a jury returns against you.

So how did Progressive handle the claim and the lawsuit? First, it ignored the plaintiff's attorney's offer early on to settle the case for the drunk driver's policy limits--which were a paltry $15,000. Second, Progressive evaluated the claim by using a software program known as "COA" (read on to learn what this really stands for), which did not include or allow for the plaintiff's herniated disc and spinal cord compression as recognized injuries. However, it did apparantly "recommend" that the plaintiff's claim exceeded the value of their drunk driver/insured's policy.

Third, Progressive even ignored the pleas of the drunk driver's personal lawyer. He advised Progressive that their failure to offer the $15,000 limits was exposing the drunk driver--their own insured--to personal exposure in the form of a punitive damages verdict.


The case eventually marches to trial, and the jury returns a verdict of $20,000 in compensatory damages and $50,000 in punitive damages, thus exposing the drunk driver to $55,000 out of his pocket, when the claim could have resolved for the $15,000 limits.

The judge ruled after the verdict that Progressive failed to make a good faith offer to settle the case, tacked on interest to the verdict, and upheld the punitive damages verdict.


This case never should have seen the inside of a courtroom, and should have been settled well before it ever got to trial. Progressive essentially ignored everybody in this case--The Plaintiff's attorney, its own insured, and even its own "software evaluation system." It even left its own insured hanging out to dry by refusing to resolve the case and exposing him to huge personal liability.

Progressive dragged this out for one reason, in my opinion: to attempt to save a few thousand bucks. And now Progressive may be facing a lawsuit by its own insured for "bad faith insurance practices" for not resolving the claim and exposing him to losing his personal assets due to the punitive damage verdict he got tagged with.

We hear a lot about "frivolous lawsuits." Yet, when insurance companies take unreasonable positions in indefensible cases, you won't read about it in the local paper. I don't know what Progressive's "COA" injury evaluation software stands for, but I think I can guess: "Cover Our A___." In defense of Progressive, however, this conduct is not all that uncommon, unfortunately. There's plenty of COA to go around.

Thursday, April 14, 2011

Texting While Driving--You Might As Well Be Driving With A Bag On Your Head

Much has been written lately about the dangers of texting while driving. My good friend and blogger extrordinaire Robert Mues has an excellent synopsis of the scope of the problem, and what states are trying to do to curb it, over at The Ohio Family Law Blog.

The numbers of crashes due to texting are staggering. In fact, he coined the phrase "intextication" as a means of relaying that, in many ways, texting while driving is just as bad as driving intoxicated. Recently, I have noticed a shocking increase in the number of young drivers who are messing with cell phones way too often while driving. The other night, as I was returning from my son's lacrosse came, a driver was riding too slowly in the left lane of the highway. When I passed her in the right hand lane, she was looking down at the screen of her cellphone with both thumbs on the pad.

I see this all too often. Although I like the phrase "intextication," I describe it as follows:"you might as well be driving with a paper bag over your head."

I also suspect that the problem is underreported in many crashes for the following reason. Assume a driver runs a light at an intersection while texting and injures a fellow motorist. The investigating officer does not ask the offending driver if he was texting at the time of the collision. The insurance company for the texting driver admits liability for the crash, knowing through their own internal investigation that their driver was texting.

If the injury claim is negotiated without a lawsuit being filed, the insurance company will never reveal that its insured/negligent driver was texting at the time of the collision. Instead, they'll simply admit that "our insured was at fault" in an affort to blunt any attempt to discover whether texting was involved in the crash.

If a lawsuit is filed, this tactic will be repeated. Any attempt to discover whether texting was involved will be fought on the grounds that, "gee, this is a witchhunt and a fishing expedition because we admit liability, so there's no need to get into any of this." And if the negligent driver is deposed and admits to texting, or his cellphone records are subpoeaned and texting at the time of the crash is proven, before trial the insurance company will file a motion to exclude evidence of texting on the grounds that because liability is already admitted, evidence of texting would be irrelevant and prejudicial.

Which circles back to the idea of "intextication." In the context of intoxication, in Ohio, an impaired driver can be liable for punitive damages for being "reckless"--knowingly driving impaired when it is more likely that a crash will occur. In this case, evidence of intoxication is admissible even if the insurance company for the impaired driver admits liability.

It remains to be seen if evidence of texting while driving is comparable to driving while intoxicated, in order to support a punitive damages case against the driver and admissibility of evidence of texting at trial. In my humble opinion, there's really not much difference between the two. This is the next legal battleground in the larger legal picture as technology races ahead, with all its permutations, and the law tries to play "catch up." Unfortunately, there will be many more crashes, injuries, and deaths in the meantime. OMG.

Tuesday, April 5, 2011

Is A Towing Company Liable For Death After Releasing Vehicle To Its Drunk Owner?

Suprisingly the answer is "no," according to a recent Ohio case.


A group of four young adults head to a college town for Halloween festivities. Accompanying the group was a night of marijuana and drinking. Early in the morning, one of the group noticed that there car had been towed. They located the car in the tow yard, and after paying the bill the tow company employee returned the keys to the driver, who was noticably intoxicated.

The group headed for home. You can figure out how this story ends. The driver wrecks the car and one of the passengers is killed. The boy's parents sued the towing company, claiming that the employee should not have relinquished the keys to the driver since he was intoxicated. What's more, it was revealed in the lawsuit that the towing company:

had on previous occasions "stalled" individuals who they believed were intoxicated from obtaining their vehicle from impound. On other occasions, they allowed allegedly intoxicated persons to obtain their vehicle but subsequently contacted law enforcement to report the vehicle's make, model, license plate, and direction of travel.

The legal issue in the case was: did the towing company owe a duty to "third persons" like the deceased passenger for harm resulting from the negligent conduct of another (in this case the impaired driver)? In other words, did the towing company give "substantial assistance or encouragement" to the driver by returning his keys?

The Court concluded that the towing company did not facilitate the driver's insobriety or drug abuse. Nor did it sell or provide him with the alcohol or marijuana he voluntarily consumed. Finally, the towing company took no part in the passenger's decision to take the risk of riding in a car with an impaired driver.

Quite simply, the Court was unwilling to impose a legal duty on the towing company when it had nothing to do with the group's intoxication and decision to ride in the car when they knew the driver was impaired. I wonder if the court's decision would have been different if the facts of this case were different. What if the towing company tossed the keys to an known, intoxicated driver who then crashed into another vehicle and injured an innocent family that was heading to church or school?
After all, the towing company had withheld keys from intoxicated owners in the past, which seems to me to be good common sense and sound policy...


There are a couple take away lessons here. First, I doubt that the driver had high levels of liability insurance to cover any injuries caused by his drunk driving. Second, if a towing company is not legally liable, despite releasing the car to an intoxicated patron, it may leave innocent motorists injured by the driver with no legal recovery. Under these circumstances, there's only one surefire way that innocent drivers can protect themselves: purchase high levels of Uninsured/Underinsured motorists' coverage--at least $500,000 or even a million. This coverage is cheap and allows you to pursue a claim against your own insurance company in the event you are on the receiving end of a series of bad decisions that cause you harm.

Saturday, March 19, 2011

Behind The Curtain: What Insurance Companies Are Doing To Dilute Or Deny Your Auto Accident Claim

“We’ll work with you on your claim. We just need some information first.” This is the standard pitch an insurance adjuster will make to someone making a car accident personal injury claim.
How do I know this? Because many eventually become what I call “insurance company refugees”—folks who accepted in good faith the insurance company’s offer of “fairness,” only to become so frustrated that they were forced to pick up the phone and call me.

Here’s what may be happening behind the curtain while the injured person waits patiently for the insurance company to do the right thing.

1.Scouring Your Credit History

When you give the at fault driver’s insurance company your Social Security Number, it allows them to tap into many databases, including one known as CLUE. This is an insurace industry database that determines your insurance profile or "risk." If you have ever reported or file a previous insurance claim, it is probably in this database. Furthermore, if the insurace company is so inclined, they can search your credit history. What does that have to do with your injury claim? Nothing. But if your credit history is poor because you have heavy debt, it might make you vulnerable to a lesser offer.

2.Intercompany Arbitration

If your auto insurance company pays your auto accident bills, they will typically have a right of reimbursement from the at fault driver’s insurance company, known as “subrogation.” But your insurance company might secretly make a reimbursement claim against the at fault driver’s company by filing for “intercompany arbitration.” This is a private, voluntary dispute resolution mechanism set up amongst insurance companies. Unbeknownst to you, the at fault insurer may reimburse your insurance company, then turn around and argue that your injuries, and your medical bills, were not caused by the accident! A classic example of insurance companies wanting to “have their cake and eat it too.”

3.The Medical Audit

After the passage of weeks or months, the same company that has promised to “work with you” may have already sent your medical records and medical bills for a medical audit. This means that some medical group or physician (whom the insurance company hires on a regular basis) is reviewing your records to determine whether (a) your injuries were not caused by the collision; or (b) your medical treatment was excessive for your claimed injuries. If this review is favorable to the insurance company, you will be notified, about the same time you receive a low ball offer on your claim. On the rare occasion the review comes back in your favor, they will not share this information with you.

Remember these things the next time you’re bombarded with all countless insurance TV commercials touting all the fancy slogans and come ons…

Sunday, March 6, 2011

Insurance Companies Using Technicalities To Avoid Paying Auto Accident Claims

"Frivolous lawsuits," allow me to introduce you to insurance company "frivolous defenses." A recent Ohio case shows the tactics insurance companies will employ to avoid paying Ohio auto accident claims due to specious "technicalities."

Quick facts: Driver is insured with "Nationwide Mutual Insurance Company." He is injured in a crash and brings a lawsuit against "Nationwide Insurance Company." As is required by Ohio law, his attorney attaches a copy of the "Nationwide Mutual Insurance Company" policy to his complaint.

Nationwide moves to dismiss the lawsuit, claiming that the plaintiff/injured party sued the wrong party--"Nationwide Insurance Company"--instead of the proper party, "Nationwide MUTUAL Insurance Company." The trial judge dismisses the case, buying into this technical argument. Thankfully, The Court Of Appeals reinstated the lawsuit, reasoning that Nationwide was on notice of the lawsuit and was not prejudiced by plaintiff's failure to include the "Mutual" description in the complaint.

The Court Of Appeals recognized that Nationwide's legal manuverings were much to do about nothing, and now the injured party will at least get his day in court. Not a very sexy opinion that's likely to make front page news, but it illustrates the efforts insurance companies will undertake to avoid paying on a claim. And, keep in mind, this was the injured party's OWN insurance company!!!

This case proves there is another side of the coin to the whole "frivolous lawsuit" debate. It's at least worthy of mention the next time you hear someone bemoaning the infamous "hot coffee" case.

Friday, March 4, 2011

The "Mrs. Jefferson" Solution To The Tort Reform Movement

I wish I had gotten her name. For the purposes of this post I'll call her "Mrs. Jefferson." She came up to me after a presentation I gave a few years ago on our civil justice system in Ohio. Actually, it was a debate.

On the panel was a local legislator, a physician, and me. They were advocating for various medical tort reforms, particularly the hard, one size fits all government imposed limits on what malpractice victims can recover in lawsuits. From my lonely perch at the end of the table, I explained that tort reform was a bad idea that really punishes innocent victims with legitimate cases of injury, and would do nothing to bring down health care costs. I argued that the only group that would benefit from arbitrary caps on damages would be the malpractice insurance companies.

It was a lively debate and it dovetailed into a discussion of frivolous lawsuits and what should be done about them. Although I probably lost the debate, like Rocky, I went down swinging...

Anyway, as it ended and I was packing my papers into my briefcase, Mrs. Jefferson approached me. She shook my hand, thanked me for talking to their group, and had this observation:

You know, it sounds to me like they need to crack down on those goofball lawsuits and leave the legitimate ones alone, because it might just be me sittin' in the wheelchair someday due to someone else's mistake.

She said more in one sentence than we did in an hour's debate equipped with talking points and fancy charts. And she's right: why punish those seriously harmed due to a preventable medical mistake with the socialistic notion that those very same individuals need to sacrifice their recovery rights for the good of the whole?

Mrs. Jefferson got it. Unfortunately, most people learn what a bum deal tort reform is for them (and individual constitutional rights) only after they're on the receiving end of a life altering, preventable mistake. It's like what Roy Rogers once said: "You never know how sweet the water is till the well runs dry." And, believe me folks, the well is running dry on your legal rights in Ohio and all over the U.S.

Tuesday, March 1, 2011

Hey Allstate, The Real Mayhem Is (Buried) In Your Auto Policy

We've all seen Allstate's "Mayhem" commercials. Pretty clever and somewhat humerous. The message is that mayhem lurks everywhere and an Allstate policy will sweep in and protect you. Here's the problem: Ohio personal injury lawyers like me have actually had occasion to read theirs and dozens of other auto policies (about as exciting as a dental cleaning, but it comes with the territory--it's what we do).

So let's test the accuracy of their marketing premise in the real world, borrowing from their theme.

I am an Allstate auto policy. You probably purchased me after seeing all of our clever commercials (no comment on how much we spend on advertising every year). You probably called an agent, who gave you a quote, asked you to fill out some paperwork, told you that you bought a "full coverage" policy, and I arrived in the mail weeks later. You stuffed me in the drawer with all your other "important papers."

But I am full of some mayhem of my own while I am sleeping in your drawer. Call it "fine print" mayhem. Here's what my fine print says: there's no coverage under my policy for "bodily injury to any person related to an insured person by blood, marriage, or adoption and residing in that person's household."

What does this mean? If you allow your son to drive your Allstate insured vehicle while you're a passenger and he wrecks the car, seriously injuring you, there's no coverage for his driving negligence, your lost wages, and your permanent injuries.

Basically it means this: if one family member wrecks the Allstate insured car and injures other family members, all Allstate "insureds," there is no coverage for anything but medical bills up to the limits of your Allstate "medical payments" coverage ( usually $5,000,assuming you bought medical payments coverage). So, if your family's medical bills are $200,000 take our $5,000 "med pay" coverage and multiply it by the number of family members with medical bills of $5,000 or greater and that's all we owe you. My little exclusion means no compensation for the rest of your family's losses.

Now here's what all the "Mayhem" commercials won't tell you. Many Ohio insurance companies, like Nationwide, Grange, Motorists, and Central Mutual don't have this exclusion! If you had one of those policies, all of your injured family's losses would be covered either under (1) the Liability or (2) the Uninsured Motorists' portion of the policy.

Mayhem can be sneaky, can't it?

To learn more about fine print exclusions in your policy before you ever need to use your insurance policy, visit our website
or our blog home page and order our FREE book: "Fully Exposed: How Ohio Insurance Companies Are Stripping Your Auto Policy."

Thursday, February 24, 2011

Can You Make A Lost Wage Claim After An Ohio Auto Accident If You're Unemployed?

The answer at first blush might be "No." After all, a logical question might be: "How can you have a claim for lost wages if you weren't employed at the time of your crash?"


What is "earning capacity?" It is income generated if a person employs his or her assets to their full capacity. Most all adults have some capacity to earn money. For example, let's assume you've been a medical technician at a local hospital for five years. You just lost your job due to cutbacks and you're in the process of applying for a new job. Duing this interim period, you're hit at an intersection by an 18 wheel rig that runs a red light. Given your injuries, you're essentially taken out of the job hunt for 6 months.

Do you have a legitimate claim with the trucking company's insurer for lost income even though you were not employed at the time of the collision? Ohio law allows injured persons to recover for their lost earning capacity. Here is the formula Ohio courts will use:

The measure of damages for impairment of earning capacity is the difference between the amount which the injured person was capable of earning before the injury and what he/she is capable of earning after the injury.


Sounds great in theory but how do you get an insurance company to recognize/honor a claim? First, your past earnings history needs to be established as a baseline. Second, your treating physician needs to state in the medical records or in a report the time frame you would have been reasonably ordered off work due to your injuries, had you been working.

And, finally, you should make a concerted, good faith effort to find employment, whether it is related to your occupation/field or not, as soon as you are physically able. You need to show that you are doing everything possible to find work.

There may be room for argument as to the amount of your claim under these circumstances, but it does not mean you're entitled to zilch, especially if your earnings history was good and the timing of the crash was bad.

If you're "going it alone" after your collision and relying upon the insurance company to "treat you fairly" in this instance, you can be sure they'll tell you: "You can't make a lost wage claim because you weren't employed at the time of the collision." Not necessarily true. But don't expect the adjuster to explain the nuances of lost earning capacity income to you. My guess is there's some section in the "insurance claims handling procedure manual" that prohibits any discussion of this.

Tuesday, February 15, 2011

Read This If You're Thinking About Handling Your Ohio Auto Accident Claim By Yourself

This is what YOUR OWN auto insurance company can do to you after you're in a crash that's not your fault. Client's son, a passenger in a car, is seriously injured in a crash due to a friend/driver's negligence. Both the driver and the son's family have the same insurance company.

As a passenger in the friend's vehicle, the boy is eligible for medical payments coverage of $10,000, the limits of the driver's medical payments coverage. The insurance company pays the $10,000 limits on the first volley of bills. The boy's bills, however, greatly exceed $10,000.

The boy's family also had $5,000 in medical payments coverage on their family auto policy with the same company, meaning that there was an additional $5,000 immediately available to pay for additional bills. Problem: the insurance company never notified the family of the availability of this additional coverage under their own policy.

The insurance company holds on to the claim for over 1 year. No offer of settlement is made, despite promising to "work with" the family on resolving the claim. In the meantime, medical bills are pouring in, and, eventually, the family is turned over to numerous collection agencies, who are hounding the family for payment.

After all the frustration and delay, they hire me, and my first question to them is: "Were you even told by your insurance company that you were eligible for an additional $5,000 in coverage to pay some of these additional bills?" "Nobody told us any of that" is the response.

I immediately fire off a letter to the insurance company asking if they notified the family of the additional coverage, and it is admitted that not only was the coverage available, but it should have been offered. The ball was dropped, pure and simple.

Or was it? This is what can happen when folks with no experience in the nuances of insurance coverage or handling their own injury claim are left to deal with an insurance company or an adjuster with hundreds of claims. Perhaps this additional coverage simply got overlooked. But here's the ultimate problem: insurance companies often view the claims process as an adversarial relationship, even with their own insureds. It is not a relationship that lends itself to them asking questions like: "How can we help this family get through this" or "How can we be fair to them?"

More likely than not, their sole question is: "How can we get rid of this claim with paying the least amount possible?" That does not make them evil; it's their business plan. And it works. Just ask yourself: how many insurance companies went belly up in the worst economic meltdown since The Depression? When suspicion and saving money on a claim are motivating factors, and when nobody is truly looking out for the injured person's best interests, things like failing to notify insureds of additional coverage(THAT THEY PAID FOR) happen. And in this case, it was inexcuseable.

If the family was properly informed of this coverage over a year ago, many of these straggler bills would have been paid, with no bad implications for their credit rating. The take away lesson here is that if you're going to "go it alone" with an insurance company, you do it at your peril...

Monday, February 7, 2011

Bratz Sues Mattel For $1 Billion Over Barbie Doll Wars...While Congress Debates A $250K Cap In Medical Malpractice Cases

I couldn't make this up if I tried. Looks like Barbie is about to be hauled back into court in the latest nauseating sequel of a never ending legal war pitting Mattel versus the maker of the rival "Bratz" doll. I wrote about the original "Barbie v. Bratz" legal skirmish ("Doll Wars") here. Round one went to Mattel/Barbie, which was awarded a $100 million jury verdict against MGA/Bratz because MGA misappropriated ideas for doll designs from Mattel.

Well, get ready for "Doll Wars II-Bratz Girls Strike Back." According to Courthouse News Service, MGA/Bratz is now suing Mattel for $1 billion, claiming violations of Antitrust laws and other evil corporate misdeeds. According to the lawsuit:

The Barbie doll was so threatened by the success of the Bratz doll that Mattel launched an abusive campaign to "Kill Bratz," violating antitrust laws and suing MGA Entertainment "to death," MGA claims in Federal Court. So virulent was the attack, MGA claims, that Mattel used industrial spies with false IDs, intimidated and threatened Bratz vendors, and "spread press releases that Bratz sexualizes girls and that Bratz dolls say the 'F' word (which they do not)."

Did I mention that nobody could really make up this stuff? What's more, MGA alleges that Mattel spent $270 MILLION in attorneys fees to destroy MGA and "kill Bratz" with a scorched earth litigation strategy.

I couldn't help but juxtapose the latest Doll Wars legal skirmish against the latest push in Congress to limit malpractice victims' recovery to $250,000. So let's juxtapose, shall we? Never ending billion dollar lawsuits, and $270 million in attorneys fees dedicated to denigrating plastic dolls that carry neat little outfits and that may or may not throw F bombs. Meanwhile, if a doctor mistakenly removes a woman's non-cancerous breast, or a hospital mistakenly overdoses a child and renders her comatose, either's lifetime of misery is liquidated to $250K.

What do we call this current state of affairs? The way things ought to be, according to The Chamber Of Commerce. After all, we need to reign in malpractice lawsuits and all those predatory lawyers, right? But when it comes to corporations hiring armies of lawyers to sue each other into oblivion, we need a robust, hands off legal system so businesses can fully enforce their contract and property rights. Sounds great if there's an "Inc." after your name. But for all you "ordinary folk" out there who fall victim to malpractice, you need to sacrifice your rights and your recovery for the collective good of society. Consider your diluted legal rights an act of patriotism that will create jobs. This is what The Chamber is selling right now with the $250K cap that Congress is considering.

No word yet on whether Barbie or any of The Bratz Girls will testify at trial. My advice is to avoid the skimpy outfits, wear muted colors, and avoid the F bombs when taking the stand. I'm sure both of them will get their days (or should I say years) in court. Malpractice victims? The line from an old Wendy's commercial comes to mind: "Step aside."

Tuesday, February 1, 2011

Finally, A Conservative Politician Speaking The Truth About Medical "Tort Reform"

Hear that sound? It is, FINALLY, the rush of fresh air clearing the room of a stale, stenchy debate over medical "tort reform" that has festered for too long. Former Senator Fred Thompson has weighed in on the fallacy of the medical/insurance industry's never ending fixation on limiting the rights of Americans through restrictive caps on damages in medical malpractice cases.

In his op ed piece, he cuts to the heart of the "medical tort reform" debate: that government imposed caps on damages are anything but a "conservative" principle:

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal

You have to wonder why hard core conservatives or Tea Partiers, who supposedly revere The Constitution and espouse "limited government," seek to impose one size fits all caps on damages in all fifty states, and trample the Seventh Amendment right to trial by jury. As a matter of conservative principles and logic, hard caps simply make no sense.

So why are Republicans making federally imposed caps the centerpiece of their health care reform? He subtly hints at the reason:

"I recognize that several other states have imposed such rules. It's understandable. The pressure to do so is very strong."

Translated, the American Medical Association, The Chamber Of Commerce, and the insurance industry have been clamoring for it for years, and they heavily support the same politicians who are currently pushing for these laws.

So much for "conservative values" or the sanctity of The Constitution. Instead of adhering to either, the "cap your rights" gang in Congress is borrowing a slogan straight out of the movie Jerry Maguire: "Show us the money...and we'll give you what you want."

Monday, January 31, 2011

Warning: Sago Palm Plant May Be Deadly To Children And Pets

If you have small children or a family pet, you may want to read this. Scary.

A colleague of mine has recently reported that a decorative indoor Sago Palm plant, purchased at a Home Depot, was responsible for liver toxicity in a dog when the dog ate some of the plant's nuts. The vet bill exceeded $10,000.

Bad enough if you have a family pet. But the real shocker is that this plant is extremely poisonous to humans as well. Just google "sago palm toxicity" and you'll find lots of information, including this:

The plant is called a Sago Palm and its highly poisonous to both pets and humans. A chemical in the plant called cycasin is toxic and often causes permanent liver damage as well as neurological damage if enough of the poison is absorbed by the body. The seeds are the most poisonous part of the plant and the effects on humans are seizures, coma and death.

Of course you and I wouldn’t just yank off a chunk of this plant and gnaw on it but the seeds are colorful so if you have kids and Sago palm in your yard educate them on the danger or get rid of the plant.

Another article suggests that dogs are strangely attracted to this plant as well.
My colleague, Ray Critchett, poses a good question: "Should companies and stores who sell this plant be required to place a warning label on them to the effect that they are poisonous to pets and children?"

Those of us who have raised small children or have pets know that both can put things in their mouths or ingest anything within reach in a split second, even if closely watched. I recall, fondly now, our childrens' attempts as toddlers to eat the dog food in the bowl on the kitchen floor.

Dog food is one thing. A plant seed or nut that can kill children and pets is quite another. And from what I've read, there are little to no warnings accompanying these plants. This is stupid and irresponsible from both a safety AND a legal standpoint.

I can't imagine losing a child or the family dog over a simple plant in the corner of the room. So spread the word.

Wednesday, January 26, 2011

Dennis Kucinich's Olive Lawsuit: Is It The Pits?

Here we go again...more fodder for the lawsuit bashers...

CNN is reporting that Dennis Kucinich has filed a $150,000 lawsuit against a cafeteria for a rogue olive pit that he bit into as he was eating a sandwich wrap. Apparently he needed some dental work and some surgery as a result of the dental trauma.

We all know what is going to come from this, Conan, Letterman, and Leno jokes aside. Groups like The Chamber Of Commerce will jump on this like hyenas on a carcass, like they always do, when one of these lawsuits hits the media. They'll assail it as another example of someone trying to hit the "litigation lottery" and drag the lawsuit papers around as another poster child for much needed "legal reforms."

Unfortunately, Mr. Kucinich has given them some gratuitous ammo with this lawsuit. But let's break this down as best we can from the scant information we know. First, there is a possiblity that the pit should never have been in the wrap he was eating. Let's assume it had no business being there and was a mistake.

If he did require extensive dental work due to this mistake, certainly he would be entitled to recover the cost of the procedures, and the pain and inconvenience associated with it. I think most people would agree with that. So far, so good, but...

Where this lawsuit will start to smell, however, is the claim in the complaint for $150,000. First, there was no need to ask for a specific amount of money in the complaint. His attorneys could have included a short paragraph in the complaint that requested "that he be awarded a sum of money to compensate him for the past and future costs of any necessary medical or dental expenses, and the the pain and inconvenience associated with the dental trauma and the multiple procedures" and left it at that. In fact, in many states, like Ohio, we are prohibited from asking for an amount in the complaint that exceeds $25,000.

My guess is that if a specific monetary amount was omitted from the complaint, it would not have made news on CNN's website. Or, if it did, the story would have died as soon as it surfaced.

But the demand for $150,000 will be the proverbial gas can that ignites a fire of criticism, and will become fodder or a symbol of yet another "excessive lawsuit." Totally unnecessary in my humble opinion, as the hit Mr. Kucinich will take from it, and the misperceptions of our legal system it will generate, far outweigh the utility of asking for that amount. This is especially true given the fact that the amount sued for often times is not reflective of what the case may settle for, or what a judge or jury returns in the form of a verdict.

I don't know who said "All press is good press," but with any maxim, there are usually truckloads of exceptions.

I'm sure I'll hear about the "olive pit" lawsuit, right next to the "hot coffee" case, when I pick my next jury.

Wednesday, January 12, 2011

The Chamber, Lawsuits And Jobs: If Only The Truth Mattered...

Every Superman has his kryptonite. Take, for example, the monolith known as The U.S. Chamber Of Commerce, considered to be Superman by some and a bully by others.

"Jobs, not lawsuits." This is their mantra. According to the StarChamber, our legal system kills jobs. Less lawsuits equals more jobs.

It's a simple and attractive premise. It's an easy message for The Chamber to disseminate in a never ending cycle of rinse, spin, and repeat through website videos, press releases, "reports," and e-mail alerts.

Their solution? Massive legal "reform." It's an "all you can eat" appetite for reform with a wish list as long as the Kardashian kids' Christmas list. At the top of the list are one size fits all, government imposed caps or limits on damages you can recover if you're maimed by a drunk driver, have the wrong organ or limb removed during surgery, or ingest tainted food or drugs. "Govermnent--bad. Government imposed legal reforms--good."

Now for the kryptonite. For the last decade, The Ohio Legislature has done the Chamber's bidding. It has passed lawsuit limits on all Ohio personal injury lawsuits, including nursing home, medical malpractice, and products liability cases, and even cases where Ohioans are injured by drunk drivers. We also have punitive damage limits in all cases too. A "model" of tort reform that the Chamber would be very proud of. The Ohio Supreme Court has upheld the constitutionality of virtually all of these reforms.

And now we also have some solid court statistics coming from The Supreme Court Of Ohio. And the numbers are illuminating:


Case Designation Number Filed * Percent of Total Civil Cases
Evictions/ F.E.D. (Municipal/County) 109,346 14.52%
Foreclosures 99,199 13.18%
Products Liability 263 0.03%
Professional Torts 1,705 0.23%
Civil Torts 27,666 3.67%
Workers' Comp. 8,698 1.2%
All Other Civil Cases 506,007 67.21%
Total Civil Cases 752,884 100.00%

(Sorry, but I could not get these columns to line up and gave up after 47 or so attempts)

Compare these numbers to 2002, shortly before The Ohio Legislature passed the beginning of many of The Chamber's lobbied for reforms. Notice the HUGE drop in "personal injury" type lawsuits (in bold) in 2009 as compared to the "pre-reform"
numbers in 2002:

Case Designation Number Filed * Percent of Total Civil Cases
Evictions/ F.E.D. (Municipal/County) 106,313 16.36%
Foreclosures 59,719 9.19%
Products Liability 629 0.10%
Professional Torts 3,448 0.53%
Civil Torts 45,020 6.93%
.Workers' Comp 8,707 1.34%
All Other Civil Cases 426,069 65.56%
Total Civil Cases 649,905 100.00%

So there's no confusion, here are some definitions of the types of cases shown above:

Civil Torts – Suits brought by a party to recover for personal injury or property damage. These do not include claims based on a breach of professional (e.g. medical or legal) duties by professionals, and also exclude claims for products liability, workers’ compensation, and claims for civil rights violations.
(This would be your average auto accident, slip and fall, etc type lawsuit)

Eviction/F.E.D.* – “Forcible Entry and Detainer.” A summary proceeding initiated under R.C. 1923 or 5321 for restoring possession of real property to one who is wrongfully kept out or is wrongfully deprived of possession, including suits by landlords to evict tenants.

Foreclosures – Actions involving or arising from the foreclosure of property, usually resulting from an alleged default by a homeowner on a mortgage.

Other Civil Cases* – Civil actions not included within any of the other listed categories, including contract claims, small claims suits, and suits designated at “other civil” by the county, municipal, and state courts.
(For example, one business suing another business for a breach of contract, for example)

Products Liability – Actions based on an allegation that a product with manufacturing, design, or warning defects caused personal injury or property damage.

Professional Torts – Civil tort actions based on the alleged failure of a professional to act in accordance with a professional standard of care.
(Not limited to medical malpractice cases, and would include claims against architects, engineers, accountants, attorneys, and other professionals)

What do the numbers tell us? Foreclosures, kicking people out of leased properties, and business to business lawsuits constitute about 81% of all civil lawsuits. Since the enactment of endless "reforms," all personal injury lawsuits in Ohio have decreased by approximately 50%!

Ohio's population is approximately 11 million. Yet, we had a mere 1,705 professional liability lawsuits and a paltry 263 products liability suits in 2009. Does this sound like a litigation explosion or a state bogged down with "too many lawsuits?"

Conclusion: personal injury lawsuits are trending down precipituously every year. But according to the Chamber, if lawsuits have dramatically dropped, it stands to reason that jobs should be exploding in Ohio, n'est pas?

So where are all the Ohio jobs created by tort reform? How does "less lawsuits, more jobs" sound now? Ohio's economy is reeling, unemployment has never been higher, and the dreaded "personal injury lawsuits" are dropping significantly every year.

Perhaps the Superman analogy was a bad one after all. The more I think about it, The Chamber's drivel is more akin to Linus waiting for The Great Pumpkin.

In the meantime, our legislature has traded your legal rights for this rickety promise. So put your heavy coats on as you sit in the pumpkin patch waiting for all these jobs. It gets cold here in the Fall, and from the sounds of it you're going to be there a while...

Sunday, January 9, 2011

California Insurer's 59% Rate Hike Exposes Fraud Of Proposed Malpractice "Reforms"

I think it was Mark Twain who said: "A lie can travel twice around the world before the truth can get its pants on in the morning."

In the recent health care debate, Republicans have maintained, as the centerpiece of their proposals, that enacting government imposed, one size fits all "caps" or limits on malpractice lawsuits will dramatically decrease health care costs and premiums. In broken record fashion, they have repeated this canard, as if federalizing state malpractice laws(the very government intervention they otherwise loathe at every turn), is the magic elixir that will solve our escalating health care costs.

Except that there's one major hole--better yet a crater--with this argument. Better yet, there's 32 holes to be exact. At least 32 states have already passed caps on malpractice damages that victims can recover. So we have some history and some data to test this insurance friendly hypothesis.

The biggest crater of all is California. In approximately 1975, it passed a $250,000 cap on "non-economic" or pain and suffering damages. Translation: lose your limb, an organ, or the ability to walk, talk, or function, and your lifetime of misery is reduced to an arbitrary $250,000.

California's caps are often cited as a "model" reform for politicians who seek to impose government imposed caps on all 50 states. So it stands to reason: if there is a direct relationship between capping malpractice damages and health care costs and premiums, why on earth is Blue Shield, California's largest insurer, seeking to hike premiums by 59%? Here's their official reason:

"...our individual market medical costs are rising rapidly due to higher provider prices, increased utilization, and the fact that healthier people are dropping coverage during a bad economy..."

That, plus good old fashioned greed, and friendly laws/regulations allowing such rate hikes, is probably the real motivation. But this story proves what those opposed to the magic wand of lawsuit caps have been arguing for years: the health care cost conundrum is due to a multitide of factors, the main one being that people are living longer, and therefore are utilizing health care resoures longer.

I have yet to hear one person in the media ask any politician this simple question: "If caps on damages are the answer to dramatically reducing health care costs, can you show me one state where health care costs have been reduced by one penny in the 32 states that have passed these caps?"

Anyone? Anyone? Mr.Buehler.....? Yet, this lie is repeated over and over on Sunday talk shows and on the floor of Congress as if it is a truism. Meanwhile, California consumers are about to get soaked in one of the most classic "bait and switch" tactics around right now: caps and reduced health care costs.