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.