Monday, December 2, 2013

Can You Get The Other Driver's Cell Phone/Text Records After A Crash?

If you've been in a crash and you suspect the other driver was distracted/texting, there are ways to obtain the negligent driver's cell records, but there are some hoops to jump through. First, you can be sure that you cannot simply get those records on your own even if you knew the person's cell phone provider.

There is really only one magic ticket to obtaining cell phone records after a collision: a subpoena. And in order for someone to issue a subpoena, there must be an active criminal or civil case pending. For example, if the investigating officer is considering bringing more serious charges against the negligent driver (say reckless operation instead of a simple failure to yield, for example), you may wish to follow up with the officer or the prosecutor as to whether they are willing to subpoena the driver's cell phone records.

But what if law enforcement is unwilling to subpoena the records in the criminal/traffic case against the driver who hit you? You do have an option: you can file a civil negligence lawsuit against the offending driver. But there's an important catch: each cell phone/text provider has varying retention periods for storing and maintaining these records. As you can see from the handy chart, if you wait too long, you won't be able to retrieve the data even if you have a valid subpoena.

And there's another catch: you'll need to hire an attorney who is competent in personal injury litigation to sue the negligent driver. No lawsuit, no subpoena, at least in Ohio. Your attorney will need to send written questions and requests for production of documents, known as "discovery," to the negligent driver. This will ferret out the identity of the cell phone provider, for purposes of sending a properly worded subpoena to the provider.

Bottom line: if you suspect that the offending driver was texting, you need to act quickly if you want to obtain valuable cell phone records.      

Friday, November 15, 2013

Why It Pays Not To Exaggerate Your Personal Injury Claim

"They are offering more money than they normally do because your client is likeable, honest, and didn't overinflate or exaggerate her injury claim."

That's what the insurance adjuster recently told me on a auto accident claim I recently settled shortly before trial. At first blush, it sounds counterintuitive. But once you understand the mindset of an insurance company, this makes perfect sense.

Allow me to explain. After 25 years of handling Ohio personal injury claims, I have come across a few universal truths. I don't claim to be "the holder of the key" or the only person to stumble upon them, but they are true. Truth No 1: every insurance company believes that anyone making a personal injury claim is a fraud, a liar, a cheat, an exaggerator, or looking to "milk it" or pad their losses---until proven otherwise.

Now, this does not make insurance companies or the adjusters who evaluate claims mean spirited or evil. But that is their default position. In their world, nothing is taken at face value and everything must be documented and proven. Nothing wrong with that concept. But even when documentation of  an injured person's losses is provided, it is viewed with skepticism, or subject to an insurance company's "internal review process."

You provided your client's medical bills and doctors' records, but did she overtreat with her doctor or chiropractor? Was she complaining a bit too much for the injuries she sustained, making her a potential "malingerer?" Did she wait too long to return to work, perhaps because she is using the collision as an excuse to stay off work? Like oxygen is to the lungs, insurance companies will automatically ask these questions, and will frequently make these arguments.

In essence, your claim is viewed through the lens of skepticism and cynicism. Part of this is justified, because there are people who will look to pad their losses in an injury claim. But in my opinion, malingerers are far and few between. Most injured folks are decent hard working people who have never been injured in a car crash before and just want to be treated fairly. Most call our office out of a sense of frustration, after having gotten nowhere with the negligent driver's insurance company.

This circles back to Universal Truth No 2:  it is ALWAYS the insurance company's goal to pay as little as possible on every single claim. So how do you or your attorney get them to move off of their default position and make a more fair offer? You build your credibility. And you do so by never exaggerating or padding your losses. You do everything you can to try to get back to normal, and your let your doctors know what you can and can't do after a crash. You make sure you attend all of your therapy appointments or promptly re-schedule them if you have to cancel.

That's exactly what my recent client did. She worked her tail off with her therapists to try to get better. She went back to work earlier than her doctors were recommending because she had no choice.  At her deposition, she accurately recounted all the problems she had experienced (and they were many), but also acknowledged which ones had gotten better over time.  She wasn't a whiner.

Insurance companies love whiners. It's what they want you to do, and it plays right into their skeptical hands.

Wednesday, November 13, 2013

Brain Injuries After An Auto Collision--And The Value Of Neuropsychological Testing

A car crash can often be a like a tsunami. Suddenly, without much warning, it subjects occupants to high speed collisions, rotating or rolling vehicles, and sudden changes in velocity (known as deltaV).

As a result, one of the most vulnerable organs can be damaged: the brain. Frequently, brain injuries after auto accidents are immediately apparent, in the form of a hematoma or bleed in the brain. They usually present rather acute clinical symptoms, like confusion, or inability to speak or speak properly. And, often, they will appear on a CT Scan.

If the bleed is bad enough, a surgery known as a craniotomy may be necessary to temporarily remove part of the skull and evacuate the bleed. But some bleeds that don't require evacuation can nevertheless be equally troubling. Like real estate, location of brain trauma can be important. If the bleed is in the frontal lobe, it can often affect a person's memory, emotions, and higher thinking or "executive" functions of the brain.

What's more, a person can sustain a "closed head" injury to the brain that doesn't involve a brain bleed or some other obvious evidence of direct trauma to the brain. A serious concussion, where the brain may swell due to forces acted upon it, is a classic example of a closed head injury. In many cases of closed head injuries, a CT Scan will be "normal."

After the tsunami of possible immediate medical treatment, hospitalization, and rehabilitation is over, traumatic brain injury patients and their families are left to wait...and see if all the ripple effects from the tsunami have subsided. Unfortunately with brain injuries, some very subtle effects can remain, even months or years down the road.

It's all too common to hear family members say things like this after a crash:

  • "He flies off the handle for no reason now at the smallest things and we don't know why"
  • "She can't get the right words out any more and it embarrasses her"
  • "He used to work the hardest crossword and sudoku puzzles and now he just stares at the pages" 
  • "The doctors have all cleared her and it's been close to a year now so why is she so emotional and depressed and still somewhat forgetful?"

These are just a few symptoms of the lingering effects of traumatic brain injury. In situations like this, a neuropsychological evaluation can be extremely valuable in assessing the ongoing effects of brain injury. A neuropsychologist can run a series of tests to determine if cognitive or behavioral problems remain after a brain injury.  

But here's the real value of neuropsychological testing: brain injury victims, and their families, are no longer left to wonder why their loved one is "still not right," long after the CT Scan is clean of trauma, and the primary doctors are out of the picture. Neuropsychological testing provides some contours and measuring sticks of what ripples remain, and when they can be expected to hopefully subside.   

Many of my clients after neuropsych testing had a much greater understanding of how and why they were still struggling with getting back to normal. And the good news is that the neuropsychologist can often prescribe a treatment plan or regimen that can help traumatic brain injury victims get their lives back together. 

Thursday, November 7, 2013

Why We May Not Be The Right Personal Injury Firm For You...

If you don't mind your cell phone--or worse yet--your minor child's--being blown up within 24 hours after an auto accident with annoying text/solicitation messages from lawyers, chiropractors, and "injury help centers," we may not be for you, because we don't engage in that nonsense.

If within 24-48 hours after a crash you enjoy 16 solicitation packets filled with DVD's about lawyers bragging and talking about themselves, refrigerator magnets, pens, etc jamming your mailbox, or worse yet someone hanging a package on your front door, we may not be the personal injury firm for you. You'll never receive such junk from us.

If you're looking for one of those "TV lawyers" or firms to call after a collision, you won't find us there either. Nor will you hear any slick little catch phrase or jingle about us on the radio. We're not opposed to all TV and radio ads, but most are embarrassing and in poor taste (no names please!!)

I am asked all the time: "How can a small firm like yours compete with all this advertising and ambulance chasing?"  Really, we're no different than any other profession or service. In a sea of plumbers or roofers or auto mechanics, what are most people are inclined to do initially if in need of help? Ask a relative, friend, or colleague for someone they can trust. After that, they will do some homework to confirm for themselves that the name they were given appears to have the competence and expertise they're looking for.

For example, a good informational website that educates consumers and teaches, as opposed to an egocentric one that brags about how wonderful the person/company is, is helpful and often produces a call to us.

And when we meet with prospective clients, there's no high pressure selling or requirement that they sign a contract at the initial meeting.

Do we lose potential clients to all the high pressure sales and solicitation tactics? Sure do. That garbage works with some people, and to each their own. But we have made a conscious decision that we would rather do something else for a living than stoop to chasing down Ohio auto accident victims, even if it means less clients as a result. And frequently, more is not always better.

By the way, the example above--the law firm that texted a minor child's cellphone after an auto accident--actually happened.  That's a really sad state of affairs for our profession. I don't know who said it but it is so true: "sometimes money costs too much."

Tuesday, October 29, 2013

Your Auto Insurance Umbrella Policy: Protection After A Crash---Or Full Of Holes?

An automobile "Umbrella Policy" can provide your family with HUGE protection after an auto or motorcycle collision, but there are a few things you need to understand first, and a couple of possible holes in the umbrella you need to look out for.

But first things first--here's how an umbrella policy works. Simply, it is a policy you buy in addition to your underlying auto policy. Example: you have "100/300" liability and uninsured/underinsured (UM/UIM) coverage with your insurance company. If you purchase a $1 million umbrella, you now have a minimum of $1.1 million in both liability and UM/UIM coverage.

So let's say your headed for church for an evening meeting and you and your spouse are hit by a drunk driver. Both of you sustain serious injuries and require surgeries, rehab, lost time from work, home health care, etc. If the drunk driver had only $100,000 total worth of coverage, and not nearly enough to  compensate you for your medical bills, physical pain, and future problems, you could bring an underinsured motorists' claim against your own insurance company, and could recover potentially up to an additional $1 million.

(Little known fact: umbrella policies are incredibly cheap for the protection they provide. In a recent case I handled, the clients bought a $1 million policy for an additional $235 per year. A no brainer if you can afford it).

But there are two things you need to check out before you buy an umbrella. First and foremost, MAKE SURE THE UMBRELLA POLICY INCLUDES UNINSURED AND UNDERINSURED MOTORISTS' COVERAGE. DON'T BUY IT IF IT DOES NOT INCLUDE THIS COVERAGE!!! Why is this important? UM/UIM coverage is the MOST IMPORTANT part of your policy. It protects you and your family if some texting or other irresponsible driver injures you.

I have discovered quite a few umbrella policies over the years that did not include this protection. The clients thought they had "full coverage," only to find out after a bad crash that their umbrella did not include UM/UIM coverage. In my opinion, it is both wrong, and borderline fraud, to sell an umbrella policy that does not include valuable protection for your family.

How do you shore up this potential gaping hole in your umbrella? Ask your agent, in writing, whether the umbrella includes UM/UIM coverage, and GET THE ANSWER IN WRITING!

Second, ask whether the $1 million umbrella, that now includes UM/UIM because you're now an educated insurance consumer, is limited to $1 million no matter how many family members are injured? Some umbrella policies are written as "occurrence policies," meaning that the most the insurance company will pay is $1 million TOTAL, no matter how many family members were injured.

In the example above, what if husband's and wife's claims exceed the $1 million umbrella limits due to the severity of their injuries? They'd be out of luck and limited to $1 million with an "occurrence" policy.

Umbrellas are supposed to protect you when it rains. And we all know what it's like to get soaked from a cheap one when you're watching your kids' ballgame or walking from point A to B. That's nothing compared to the drenching you'll get if you have a hole filled umbrella policy--or worse yet, none at all.

Tuesday, October 8, 2013

Can A "Black Box" In The Operating Room Reduce Surgical Malpractice?

Yes, according to a Canadian surgeon who has developed aviation "black box" type technology for use in the operating room.

Most everyone is familiar with the "black box" that is retrieved from the remnants of the plane after a crash to study data at the time of the crash with an eye towards getting to the root cause and preventing future crashes. According to inventor and surgeon Teodor Grantcharov, MD,  the "OR black box works in similar fashion: it records video, audio, vital signs, the data from the anesthesia monitor, and lots of other important data that can be studied.

His purpose in developing this breakthrough software? Enhancing patient safety. The idea is that surgical mistakes can be studied in real time and used as a teaching tool to reduce or eliminate adverse errors and patient harms.

But how will the medical profession react to this newfound technology? Will it be welcomed with open arms, or will they fight it tooth and nail because it will be objective evidence of what happened in the operating room, making it less likely or impossible to "sanitize" what happened if a true medical mistake occurs?

My guess is that the initial reaction of surgeons and hospitals will be: "forget it!" They may well argue that black box technology will increase the chances of a medical malpractice lawsuit because patients (and their greedy lawyers) will try to get their hands on the data if a patient suspects that medical negligence occurred.

But I believe it may well have the opposite effect. Technology like this will ultimately serve a laudable goal of reducing the true incidence of operating room malpractice, which will in turn reduce even further the number of malpractice lawsuits. And a reduction of both is a good thing.

As it stands right now, the surgeon's dictated operative report is often the official paper version of what happened in the operating room, whether it consists of the truth, the partial truth, or a whitewashed version of the truth. Frequently, it is not representative of what actually transpired, and in cases where malpractice is suspected, the OR report can sometimes be unraveled in the face of later, objective data that tends to cast doubt on the surgeon's description of events.

And, sometimes, it stands as the truth even if it is a lie, because of the attorney's inability to prove that it was shaded or sanitized.

Black box technology is a potential game changer because of its objectivity. We hear all the time that patient safety is goal number one of any medical institution. As the technology progresses, it will be interesting to monitor the medical profession's position on its use, and how serious it is about patient safety.

After all, almost 400,000 people a year needlessly die in hospitals every year due to preventable medical mistakes. By comparison, less than 100 passengers on average die every year in the U.S. due to plane crashes. And when the plane crashes, we demand an immediate investigation and retrieve the black box, since a single plane crashing is unacceptable in our society.

Simple math--and protection of life--seem to make this decision a no brainer with respect to hospitals embracing the black box.



Monday, October 7, 2013

Injured By A Hit An Run Driver? The One Thing You Must Do IMMEDIATELY!

Unfortunately it's an all too frequent scenario. Out of the blue, you're sideswiped or rear ended.  Or you've been run off the road, forcing your car to crash. The responsible (or better yet the IRRESPONSIBLE) driver either doesn't stop or leaves the scene.

If you have Uninsured/Underinsured Motorists' (UM/UIM) Coverage with your own insurance company, you can make a claim with them for your losses like medical bills, lost wages, physical pain and disability, etc. As our book "Fully Exposed: How Your Insurance Company Is Stripping Your Policy" (available for FREE on our website), UM/UIM coverage can be a life raft if hit by a hit and run driver.

All Ohio insurance policies require you to have "corroborative evidence" (something objective like physical evidence or witnesses) that the hit and run driver caused the collision, as I have written about here. That post will explain what you or your attorney must do to gather your "corroborative evidence" in order to proceed with your uninsured motorists' claim.

But there's a real trap door lurking in your policy that you need to know about to stop your insurance company from weaseling out of your uninsured motorists' claim. It's this little clause, buried in the fine print of your policy (hell, it's all fine print if you think about it):

The person making the claim, under the uninsured motor vehicle coverage, must report a 'hit and run' accident to the police within 24 hours and to us within 30 days. 

It's real simple: run off the road or crashed by an idiot hit and run driver? CALL THE POLICE IMMEDIATELY! They'll file a report, and it will be on record. And then call your insurance company. Otherwise, you'll eventually get a letter from you own insurance company denying your claim for failure to notify the police, along with how much they value you as a customer and of course wish you the best with that leg fracture and surgery...

The takeaway? These insurance policies are set up to give your own company numerous opportunities to wash your claim down the drain. They know full well that most people don't read all this fine print.
I bet they hate Google and blogs like this...

Wednesday, September 11, 2013

What Happens If Two Drivers Injured Me?

An example will hopefully show how Ohio law allocates responsibility when more than one party is responsible for an auto accident. A driver is on her way to work when she’s rear ended by another motorist (let’s call him negligent driver No 1). She pulls her car over to the side of the road and safely exits her car.

Unbeknownst to her, a second motorist (negligent driver No 2) traveling in the same direction is not paying attention and hits her off the road, in the berm.

How responsibility among the two negligent drivers is allocated depends upon the injured motorist’s injuries. If her injuries are “indivisible,” meaning that it cannot be determined which negligent driver caused which injuries, then under Ohio law both negligent drivers are presumed to be liable for all of her injuries. The negligent drivers would then have the burden to prove which of those injuries they caused or didn’t cause.

On the other hand, if the injuries were “divisible,” meaning that each negligent driver caused separate and distinct injuries, both could be “jointly and severally” liable to the injured driver, but with a twist. Each negligent driver would be 100% responsible for the driver’s “economic damages.” These are what I call “calculator damages,” such as past and future medical bills, lost wages, and anything else that can be tabulated.

However, as to damages for physical pain, suffering, and future pain and suffering, inability to enjoy activities and hobbies, etc, the negligent parties are only liable for their percentage share of those damages.

How would this work? If a jury determines that negligent driver No 1 is 70% responsible for the crash, and negligent driver No 2 is 30% responsible, they are liable for 70% and 30% of the injured person’s physical pain and disabilities.

As you can imagine, this whole area can get dicey or confusing, and takes effort to ferret out who caused what injuries. But at least the law accounts for both possibilities.

Tuesday, September 3, 2013

Docs Attach Patient's Intestine To Her Vagina--And Get Case Tossed!

I'm sure we all remember that childhood anatomy song, a snippet of which goes something like "well, the hip bone's connected to the thigh bone, the thigh bone's connected to the________" and so on and so on.

Recently, two surgeons in North Carolina mistakenly attached a woman's intestine to her vagina during a hysterectomy. As the song goes, the intestine is connected to the rectum, not the vagina. Or at least that's how the song SHOULD have been sung.

Needless to say, the patient, probably also familiar with that tune, sued the surgeons for medical negligence (also known as medical malpractice) for the botched surgery. You can read about it here.

Now here's where it gets weird. The trial judge actually threw out the case!! Why? Apparently, the patient's attorneys filed the lawsuit without a medical expert giving the opinion that a woman's intestines should not be attached to her vagina under any circumstances.

The surgeons' attorney apparently argued that, hey, this is a malpractice case and you need an expert to say that it's not OK to suture an intestine to a vagina, and since you don't have an expert, case dismissed.

And apparently the judge agreed, tossing the case. As you might expect, this one got appealed, and, thankfully, common sense re-entered the picture. The Court Of Appeals, perhaps aware of the words of Bob Dylan that "you don't need a weatherman to know which way the wind blows," adroitly noted that it’s "common knowledge and experience that intestines are meant to connect with the anus, not the vagina, even following a surgical procedure to correct a bowel problem."

But here’s the real teaching point about the difficulties, complexities, and unfairness of our medical malpractice laws. There are certain results in medicine that are just inherently wrong and preventable: the clamp left in the abdomen, the sponge or towel left under the lung, operating on the wrong limb, removing a non-cancerous breast by mistake. The list goes on, and I think it’s safe to add attaching intestines to a woman’s vagina to that list.

Yet, this case got thrown out and had to be appealed to be re-instated. Point? Many of our “tort reform” malpractice laws bend over backwards to make it increasingly more difficult for legitimate cases to make it through the legal system.

And if any medical person would respond by saying, “well, not so fast, these things can and do happen,” my response is I’m waiting for the scholarly medical article that touts the benefits or efficacy of attaching intestines to vaginas. Waiting patiently….right next to Linus in the pumpkin patch….

Monday, July 29, 2013


Frequently, we need the services of experts who can assist us in auto, truck, or motorcycle accident collisions. They can often tell us how fast vehicles were travelling before impact, the change in speed or velocity of the vehicles due to the crash (known as the delta-V), the angle/configuration of the impact, rotations and resting positions of the vehicles, and other valuable data.

These experts are also invaluable in measuring and pinpointing physical evidence like skid and yaw marks.

A recent case proves why it is generally a good idea to bring your expert to the scene.

In an intersection crash one of the issues was the speed of (let’s call him) driver A’s vehicle when he crashed into my clients’ car. He left a lengthy skid mark that was documented in the crash report. It roughly correlated to a speed of (let’s call it) X MPH at the time of braking…

All well and good. However, the investigating officer did not note in the crash report that the street where driver A was traveling had an uphill grade. When my expert examined the scene, he measured the degree of incline in the road. Because of the incline, it meant that driver A was actually going faster than what was originally thought, due to the fact that the skid mark was imparted on an uphill grade.

If the expert had not gone to the scene, this nuance would have been lost. In an intersection collision, a difference of a few MPH may make all the difference in establishing whether the collision was inevitable, or could have been avoided.

Another advantage that bringing your expert to the scene allows is the ability to create an actual scale drawing of the collision scene, if appropriate measurements are taken. This, along with the fact that your expert has thoroughly examined the scene, makes that expert more credible at trial.

It may cost a bit more to bring your expert to the scene, but it’s worth it, and it also sends a message to the insurance company that you’re taking the case seriously.

Wednesday, July 24, 2013

"I Was Injured By A Driver From Another State--How Will This Affect My Personal Injury Claim?"

Good question—glad you asked! It may have a major effect on your claim in certain circumstances. It’s what I call the “absent defendant” scenario.

Recently I resolved an auto accident claim for a client hit head on by a worker imported to our area from many states away. It was a bad crash, and the client’s treatment after the crash was reasonable, but there were no serious or permanent injuries.

As is customary, I tried to negotiate a settlement without filing a lawsuit. Eventually I was rewarded with a ridiculously low offer from the insurance company. But I knew (and so did the insurance company) that, if I filed a lawsuit, the at fault driver’s geographic distance/being out of state would translate into leverage for the client, and eventually a better offer.

Here’s why. In every case, the insurance company makes economic decisions as to how to proceed in defense of the case. In many cases, it would be cost prohibitive for them to locate and eventually bring their insured/negligent driver back to Ohio to be present at trial.

In fact, I learned early on in the case that the insurance company could not even locate the driver (so they said), so I knew that if we went to trial, there would be an “empty chair” at the trial table. This is usually not an optimal situation for the insurance company for obvious reasons—“out of state driver smashes local citizen and fails to show up for trial.” You get the picture.

As it turned out, weeks before trial, the offers were increased and the case got resolved.

In cases where the collision caused more serious injuries, the insurance company may well decide to pay for the expenses of bringing the driver to trial.

Bottom line: lawsuits are about leverage. In many cases, the “absent defendant” offers leverage that can translate into a better offer or verdict. More often than not, however, it requires filing a lawsuit to bring that leverage to bear.

Saturday, July 13, 2013


I hear this threat all too often, and it really ticks me off.

Scenario: client is involved in a crash that’s not his fault. His car needs to be repaired, but he hasn’t heard squat from the at fault party’s insurance company yet. So he calls his insurance company (in this case, Allstate).

The adjuster tells him (before he hires me): if you go through us to get your car fixed, your rates may go up, so it’s better that you go through the at fault party’s insurance company.

This is hogwash. What the adjuster didn’t tell the client is that in Ohio (and the majority of other states), if your insurance company pays for your car repairs, they have a right of subrogation against the at fault party’s insurance company.

Subrogation is a fancy legal term for reimbursement. Here’s how it would work. Your insurance company pays for your repairs. They notify the at fault party’s insurance company of the amount of repairs, and collect back every penny they paid.

And if you had a $500 or $1000 deductible, your insurance company will actually collect or capture that deductible for you, and send you a check in the amount of the deductible.

So if you’re not at fault, and the insurance company gets back every penny, how on earth can they raise your rates in this situation?

In my opinion, they can’t. More likely, this is a scare tactic designed to deter you from using your own insurance company to pay for your losses. Less paperwork for them, more hassle for you in many situations.

And if it IS true that they can raise your rates, all the more reason to drop them like Lance Armstrong at a truth convention and shop around.

Monday, July 8, 2013

Recent Law Changes Allow Insurance Companies To Delay Your Claim

A frequent question we're often asked is: "How does an insurance company evaluate my injury claim?"

One basic element is what I call "calculator” damages, for hard numbers that can be added like medical bills, lost wages, etc. These are tallied and then are included with what I refer to loosely as "general” damages, such as physical pain and disability, inability to enjoy activities of life and hobbies, and more important things like that (in my opinion, those are way more important than “calculator” damages…). From those basic factors, an insurance company will make an offer, recognizing that there is no magic formula for evaluating a personal injury case. And that’s because each case is unique (the subject of another post, so stay tuned…)

Until recently, insurance companies were not allowed to factor into the "calculator damages" the amount of medical bills actually paid by the injured person's insurance company. Example: a drunk driver broadsides you and you incur $10,000 in bills. Your health or auto insurance company pays $7,500 of those bills as "payment in full."

Until a few years ago, insurance companies had to accept the higher or gross amount of your bills instead of the discounted amount. However, The Ohio Supreme Court ruled that insurance companies and juries were permitted to take into consideration the discounted amounts paid.

So here’s what insurance companies are doing with this judicial gift. They are DEMANDING that you, the injured person, produce all the information on what any insurance company paid for your medical bills. Keep in mind that all the Ohio Supreme Court said was that they are allowed to consider these discounted amounts.

Well, the discounted amounts are now gospel and they have totally ignored the gross amount of the bills as an evaluation tool. Almost all of them will now claim that they “can’t evaluate the claim” even if you’ve provided a tally of all of your bills…unless they include the discounted amounts paid for those bills.

Baloney. It’s a ruse to ramrod a lesser offer down the throats of injured accident victims, and it also conveniently allows insurance companies to sit on your claim and delay an offer.

For the twenty five years I’ve been a personal injury attorney in Ohio, insurance companies and I managed to evaluate and settle hundreds of personal injury claims without all this attention to discounted medical bills.

Now, these multibillion dollar companies are just helpless and can’t begin to evaluate the claim unless you or we produce the discounts.

Discounts and delays. It’s good to be an insurance company.

Wednesday, June 5, 2013

How Do Lawyers And Chiropractors Get Your Name After An Auto Accident?

One day, you're rear ended or broadsided in an automobile, motorcycle, or truck accident. As if that trauma is not enough, within 24 hours of the crash your phone starts ringing. If you have a cell or smart phone, in addition to phone calls you are bombarded with numerous text messages.

When you go to your mailbox, you have well over a dozen mailings, with fancy DVD's, refrigerator magnets, glossy brochures--and a copy of your accident report!  And, perhaps, someone has even dropped off and hung some materials on your front door knob.

Creepy, isn't it? Many of my clients ask: "how in the hell did these (people) (vultures) (sharks) get my name and info so fast?

Here's what's going on. There are companies who system gather information about  accidents by monitoring hundreds of local news, radio, and television sites across any given state. They provide accident report summaries and mailing addresses for accident victims. They typically charge a fee per accident.

It's a sophisticated network for sure to process this information to attorneys and chiropractors and eventually start bombarding you before you've even had a chance to catch your breath and clear your head.

Personally, this feeding frenzy of solicitations is one of the worst things that has ever happened to our profession. I hate it and wish it would stop, but that's just my personal opinion.  I have no statistics to bear this out, but I would estimate that well over 90% of all Ohio personal injury attorneys do not engage in this practice. Unfortunately, however, we who don't engage in these practices are lumped in and tarred with the same brush as those attorneys and firms who solicit victims in this manner.

Thankfully, many collision victims still hire us the old fashioned way: asking around, and word of mouth.

Monday, June 3, 2013

In What County Can You File An Ohio Personal Injury Lawsuit?

In most cases, a lawsuit is filed in the county where the auto/motorcycle/truck accident occurred. But it does not HAVE to be limited to that county.

A common example will bring this into focus. Let's say you and your significant other are on a leisurely motorcycle stroll and a driver of a company car, drunk while on the job, turns left in front of you (the most common cause of an injury to a motorcyclist, by the way) and seriously injures both of you. His employer's place of business is in Cuyahoga County, he lives in Summit County, and the collision occurred in Stark County, Ohio. So which county is the proper one for bringing a lawsuit?

Answer: you can bring a lawsuit in any one of those three counties. The legal term which governs where a lawsuit is brought is called venue.  You've probably even use of part of that term on the TV news when a criminal defendant asks for a "change of venue."

Under Ohio venue rules, a lawsuit can be brought in the county where: (1) a defendant has its principal place of business, OR (2) the defendant resides, OR (3) the accident occurred. There is no pecking order or priority given to one location or another.

So, in the example above, the lawsuit can possibly be brought in Cuyahoga County since an employer can be liable for an employee who injures someone in the course and scope of his or her employment. It can also be brought in Summit County because the employee/drunk driver resides there. And, finally, it is also proper in Stark County because that's where the collision occurred.

The decision of the best place strategically to bring an Ohio auto or motorcycle accident claim depends upon many unique factors, and each county would have its plusses and minuses, all of which should be discussed with the client before a lawsuit is filed.

Tuesday, May 14, 2013

Sounding The Alarms...Of Malpractice

Hospitals employees are suffering from "alarm fatigue," according to a recent study from the Joint Commision on Accredidation of Health Care Organizations (JCAHO), which sets standards for and accredits hospitals.

The problem? Too much beeping and alarming, apparently. Staff is becoming immune or turning off the very device alarms which are supposed to protect patient safety. How big is the scope of the problem? The JCAHO estimates that at least 80 deaths have been attributable to alarm fatigue over the last three years. And this  problem is probably low because hospitals are not even required to report "alarm related" deaths.

This is astonishing. It is a sad commentary on our medical system when people are dying in hospitals not from serious disease or trauma complications, but a patient safety alarm that's ignored or turned off. To be sure, some of the problem stems from staff confusion due to a lack of standardization amongst device manufacturers. As the article cogently points out, some devices alarm or beep when functioning normally, whereas others alarm if the patient's medical status changes.

However, doesn't this sound like a problem that is correctible in this day and age? We hear time and time again that the U.S. has "the best medical system in the world." In many respects, this is true, but it is such an oversimplification, and this data proves that point. When the equivalent of a busload of people have died due to an unanswered or ignored alarm, and hospitals are not even required to report such inexcuseable deaths, that doesn't sound like a medical system that the rest of the world should envy or aspire to.

Reminds me of what Will Rogers once said: "Even if you're on the right track, you'll get run over if you just sit there."

Friday, April 12, 2013

Injured By A Distracted/Texting Driver? One HUGE Reason NOT To Deal With The Insurance Company

If you were injured in a car collision by a distracted or texting driver, the offending driver's cell phone provider should have a record of the driver's texting history.

Problem No 1: many of these cell phone providers keep the user's texting history for only a limited period of time. In a recent case, this was the cell phone provider's response to our subpoena seeking the driver's test messages on the day of the collision:

Text message details are kept for approximately the most recent 18 month period from the date of processing. No text message CONTENT was found. Text message CONTENT is not retrievable for any length of time. The FCC does not mandate the retention of stored content.

Problem No 2: injured drivers often wait until shortly before the two year Ohio statute of limitations is about to expire before contacting an attorney. Many times they wait based on insurance company promises to "work with" them on a fair settlement. Frequently, "working with you" turns into you getting "worked."

If a personal injury lawsuit is eventually filed, the negligent driver's text messages will often be gone and beyond the capacity to subpoena.

Can't you just ask the insurance company to produce their driver's cell phone records early on in your dealings with the insurance company? Well, good luck with that. You'll get one of 3 responses: "We are not allowed to provide that information," "We don't have access to that information" or "We are accepting fault for the crash so there's no need to retreive that information."
Bottom line: we'll discover the existence of Bigfoot AND the Loch Ness Monster before you will EVER get that information from the insurance company. And you can't get it yourself unless you subpoena it. And you cannot subpoena it unless there is an existing lawsuit filed.

Texting and driving is more than simple negligence or inattention. It is reckless in my opinion and is akin to driving while intoxicated or impaired. If you can prove that a driver was texting at the time of the collision, that driver can be held liable for punitive damages, which exist in Ohio to punish the driver. Punitive damages in this situation can be recovered in addition to damages designed to compensate you for your lost wages, medical bills, and physical pain and disfigurement.

Lesson: you deal with the insurance company at your peril. And if you wait too long, important evidence of the driver's misconduct can be lost.

Tuesday, April 9, 2013

Untangling The Medical Malpractice Web: It's Not All About Lawsuits

In a world where it is becoming easier to be cynical and negative, the continual kindness and grace of people continues to amaze me.

Recently I was consulted on, and declined, two potential malpractice claims. In both cases, the families had LEGITIMATE complaints and concerns over the care their loved ones received. In both cases I had a strong suspicion that medical negligence was a distinct possibility, and contributed to some really serious patient harm.

But sometimes it is nevertheless difficult to PROVE from the state of the medical records that malpractice occurred, for a whole host of reasons. This is a difficult concept to explain to families  who simply want to know what  happened in the operating room or the ICU. It's not something you can generally explain in a 10 minute phone call. It often takes time, and these folks deserve the time it takes to walk them through all the medical and legal issues.

A cynic might think that these folks would be angry and spiteful at hearing the news that their case has been declined. However, in most cases, it's just the opposite. Both families were extremely greatful that somebody took the time to go through the records and provide some insight, and actually explain some of the medical issues and what the current medical literature has to say about proper treatment protocols. Their grace and understanding under difficult circumstances runs counter to the stereotype of "sue happy" people just looking to "cash in" on a lawsuit.

More than anything else, families want the truth--and some piece of mind that they at least inquired about whether a preventable medical mistake occurred.

The shame of it all is that it frequently takes a lawyer to explain what the doctors should have explained to the family months before they picked up the phone and called a lawyer.

Wednesday, March 20, 2013

How Outsourcing Medical Care In Hospitals Is Needlessly Harming Patients

Imagine having a loved one in the hospital who needs to be transferred to a rehab facility. The hospital sends standard discharge paperwork to the rehab facility, which includes necessary life saving medications the patient will need there after being transferred.

Sounds like simple, standard "stuff," right? Think again. Unbeknownst to you, your hospital has outsourced the transcription of the discharge summary to a company in India, where the discharge summary your doctor has dictated is sent electronically, transcribed into written form, and sent back to the hospital.

You might guess what happens from there. In a recent case in Alabama, a 59 year old woman was discharged to the local rehab facility with a discharge summary chock full of critical errors. The most alarming? An order for 80 units of insulin instead of 8 units--10 times the required dose. The rehab facility gave the 80 units of insulin, which caused the patient sustain a massive brain injury, which eventually took her life.

During the case it was discovered that the hospital outsourced transcription of its medical records to a company in New Dehli, India in order to save 2 cents per page on transcription costs. Even worse, the hospital did not use its own internal reviewers to review for possible errors. Apparently, that was outsourced to India as well.

An Alabama jury who heard this evidence was incensed enough to return a $140 million verdict against the hospital.

An integral part of a hospital's responsibility to its patients is to make sure the discharge instructions are correct, whether the patient is going home or transferred to another facility. Patient safety demands it. It's bad enough when there is a colossal mistake like a discharge order that orders a lethal dose of medication.

It's worse when such an important function is outsourced to save pennies per page on transcription costs. Bottom line: when medical providers are outsourcing critical aspects of patient care and safety to increase profits, that is truly a prescription for disaster.

I hope every hospital administrator at the next "administrator's conference" in some warm, sunny location hears about this case, and what a wake up call it sends to hospitals. Let's just hope the wake up call is not outsourced too. 

Thursday, February 28, 2013

Why I Like Being A Lawyer

Recently a former client whom I represented in an auto accident years ago came to me with a problem. She politely asked me if I could help her since this was not a "personal injury" case.

She worked years ago for a local institution and was eligible for a small pension. When she turned the correct age she inquired as to when she could expect to receive her benefits. She was told they had no record of her being eligible, and promised to get back to her.

Weeks went by, and she heard nothing so she inquired again. She was told they were "still looking into it" or words to that effect. Weeks turned into months, so she called me. I told her I would look into it and wrote a nice letter to the institution on her behalf. No response.

So I wrote letter no 2. Finally heard from a representative. After a few weeks, the person acknowledged that she was entitled to her benefits, with interest, and offered an amount, which was accepted.

Almost three months passed and still no payment. Yet another letter was sent and ignored, so I finally initiated the nuclear option: I drafted and sent a copy of a lawsuit and explained that I would be filing it if there was no payment in full within 7 days.

Lo and behold, the check arrived--but not without the threat of a lawsuit, and after the passage of over one year.
I have no earthly idea why it took those efforts to get a large institution do what it was obligated to do. After 25 years in this business, I've stopped trying to figure out why corporations or people do what they do. But it ticks me off that people simply trying to enforce their rights are often labelled as "sue happy" and "greedy" and nonsense like that. This nice person only came to me after getting nowhere by simply inquiring on her own and trusting that people would do the right thing. And it gives me a sense of pride to know that we can accomplish a result with some persistence and simple steps to get people to do the right thing.

But it reminded me yet again of the frequent imbalance of power in situations like this. There is a real movement afoot to chip away at our legal rights brick by brick. Most of this stuff flies under radar, and the public is largely ignorant of all of it...until it affects them. But at the end of the day, when all "nice" or informal efforts at resolving disputes fail, the lawsuit is the great equalizer. It allows the little guy or gal with little to no resources to take on someone or some entity much larger.

To be sure, there are some really stupid and frivolous lawsuits out there, and they deserve all the criticism they get. But just remember: almost every lawsuit "reform" measure proposed by astroturf  "concerned citizens groups" is seeking limits or legal shelter on even legitimate wrongs and disputes.

You know--the old saying about the baby and the bathwater. Something to think about the next time you hear some politician or group clammering for (more) legal "reforms."    

Wednesday, February 13, 2013

Two Huge Signs Of A Spleen Injury After An Auto Accident

Although injuries to the spleen are not an every day occurance after a car crash, they are not rare either. Trauma to the spleen can occur, and it does not always manifest itself immediately. In fact, sometimes the symptoms of an injury to the spleen do not become apparent until days after an accident.

From a recent case I handled: a woman is rear ended in a high speed crash. She's taken to the ER, has normal vital signs, and is in no apparent distress. She's treated and released for a neck and back sprain and goes home to recuperate from her various sprains.

The next day, she's running errands with her daughter. She starts to feel “very fidgety and uncomfortable.” She then begins to develop a radiating pain from her abdomen up through her left shoulder. She becomes nauseous and sweaty, and is taken back to the ER.

The ER doctor examines her and notes that she has a positive Kerr's Sign: abdominal and distinct left shoulder pain, two of the hallmark signs of a ruptured spleen. Why is it called a "Kerr's Sign?" Because, most likely, some dude named Dr. Kerr discovered this in 1911 or 1935 or whatever and named the test after himself. But I digress...

The ER doc immediately orders a CT Scan, which confirms a Grade III tear of the spleen. According to medical literature, spleen lacerations are graded on a scale of 1-5, and a Grade III laceration, for example, involves more than 50% of the surface area of the spleen, and a laceration of greater than 3 cm in depth.

 What does it mean to have a Grade III laceration? You're going to be hospitalized for a few days to make sure the laceration starts to heal, and if it does not, you're looking at a splenectomy (removal of the spleen). Removal or not, you're in for a lengthy convelescence and not much strenuous activity (like exercise) for months in order to avoid re-injuring it.

The takeaway? If you get a sudden onset of abdominal and shoulder pain a day or two after a motor vehicle collision, get yourself to the ER, and don't assume it's par for the course. It may save you from a serious problem down the road--a slowly bleeding spleen. I'm no doctor, but I do know that bleeding vital organs are generally not a good thing....and I didn't even stay at a Holiday Inn Express last night (as the commercial goes)...

Tuesday, February 5, 2013

Avoiding "The Race" After Your Ohio Auto Accident

Yesterday a potential client called me about an auto accident she had the day before. She found my name through a Google search. She called me only because (1) she had already been called by the adjuster for the at fault driver, who offered her $500 for her "pain and suffering (in exchange for a full release of any future liability); and (2) she was being bombarded by calls from injury "help centers," "hot lines," and chiropractors telling her she was eligible for a "free medical examination."

And in 1-2 more days, her mailbox will be stuffed with about 16 letters, brochures, and DVD's from attorneys offering their "years of experience" to get her top dollar on her claim.

Not having been through this before, she didn't know what to do, and quite frankly was tired of the whole thing. This scanario is becoming more commonplace, unfortunately.

It dawned on me that auto accident injury victims are nothing more than participants in an involuntary race of sorts. The insurance companies are racing to "cash her out" before she even knows the nature and extent of her injuries, in order to cut their losses. Included in this high speed chase are the chiropractors and attorneys  racing to sign her up for their own obvious financial reasons.

My advice: avoid the whole lot of them. Take a step back. Let some time pass to see if you need any follow up with your medical provider of YOUR choice, or if time and a few Motrin will allow you to determine if you're truly OK and in no further need of any medical treatment. I sent her a book I wrote on what to expect after an Ohio car accident, and how injury victims can get drawn into this black hole. And I told her to call me if she had any further questions.

In other words: avoid the race, or worse yet, the onslaught. She was smart enough to have the sense to take a step back and weigh her options. Others who come to see me, AFTER this "machine" runs its course, many times aren't so lucky... 

Thursday, January 24, 2013

Persistence Is The Cure For An Evasive Witness

Taking the deposition of a defendant doctor in a malpractice case can be tricky, no matter how much experience you have in medical malpractice litigation. After all, as a general rule, the doctor has the upper hand. He/she is trained in medicine and most of us are not. Even if the attorney has medical training, the doctor will always know WAY more about what happened than we ever will.

The reason for this is simple: the medical records never tell the whole story. Many times they are incomplete, fudged, sanitized, and in some cases, altered. Like a glacier that's 5% exposed to the naked eye and 95% underwater, virtually every medical malpractice case involves plunging below the surface of the medical records into the deeper abyss of what really happened. .

Because the advantages lie with the defendant doctor, there is ample opportunity to evade, "clarify," or "explain" what truly happened, no matter what the "official" records say.

Case in point: in a recent Ohio medical malpractice lawsuit, we claimed that a physician was negligent or "fell below the standard of care" for not immediately applying an Ambu Bag (a bag that manually forces air into a patient's lung when squeezed) to a patient in severe respiratory depression due to anesthesia drugs that had paralyzed the patient's breathing after an outpatient procedure. The recovery nurse did an excellent job of documenting the patient's extremely how blood pressure, heart rate, and lack of consciousness upon arrival to the recovery room or PACU.

We claimed that the rules of good medical care required the physician to take immediate action and force air into the patient's lungs with the Ambu Bag to take over breathing for the patient. The nurse had documented that four crucial minutes had gone by before the physician finally began to use the Ambu Bag to attempt to breathe for the patient.

It was our experts' opinion that allowing four minutes of not taking over breathing for an unconscious, anesthesisa drug-paralyzed patient was a clear breach of the rules of good medical care, and sadly led to her anoxic brain damage due to a lack of oxygen.

There was a lot more to this story, but the Ambu bag delay was one of the main issues.

When it came time for the doctor's deposition, I anticipated the defense that the Ambu bag was used "immediately" after the patient's ominous vital signs were discovered, despite what the nurse had documented to the contrary. I expected that the physician would claim that the nurse's documentation of a four minute delay was incorrect or wrong. Sure enough, that's what the doctor said at the deposition.

But one of my lines of questioning was to get the doctor to admit that if the nurse's documentation of a four minute delay WAS accurate, the doctor was negligent. Below is a portion of the transcript addressing this issue:

Q. If an Ambu bag were immediately available, okay, and if there was a 4-minute delay between ____'s ominous signs that we went over listed at 9:24 and the time an Ambu bag with positive pressure ventilation was applied, does that fall below the standard of care?

A. I would take issue with the times, and I don't know -- I ventilated the patient when I felt ____ needed it.

Q. Okay. I understand that, but my question was very specific. I'm going to repeat it. If an Ambu bag was immediately available, and if there was a 4-minute delay between ____'s ominous signs that we went over listed at 9:24 and when an Ambu bag with positive pressure ventilation was applied, does that violate the standard of care?

MR. _______: Objection; asked and answered. Go ahead, you may answer it again.

MR. WILSON: It was not answered.

MR._______: It was. Go ahead, you may answer again.

A. I ventilated the patient when my, when I felt that there was a real problem. We immediately -- a lot of things were happening. Resuscitation was started immediately on receiving these vital signs, four vital signs.

Q. With all due respect, Dr.__________, my question wasn't answered. I would like an answer to the question. If there was a 4-minute delay between ______'s signs that we went over and when an Ambu bag with positive pressure ventilation was applied, does that fall below the standard of care?

A. I guess I would have to say yes.

To be honest, extracting this admission involved no secret or "Jedi mind trick" ("These aren't the drones you're looking for"---one of my favorite Star Wars lines but I digress)--at least among Ohio medical malpractice lawyers who've been to this rodeo a time or two. To be sure, no one admission at a deposition will win the day.

But it is proof that listening closely to the question--AND persistence in a firm, respectful way-- can pay off. More importantly, it can serve to simplify or narrow the myriad of issues that a jury will ultimately decide.



Tuesday, January 8, 2013

Ohio Wrongful Death Claims And Bankruptcy

What happens if you pursue or have filed an Ohio wrongful death lawsuit on behalf of a deceased loved one, but are considering or have to file for personal bankruptcy before the lawsuit is settled or before you win the wrongful death case?

Answer: it gets complicated. Example: wife dies due to an auto accident or medical malpractice. Husband files a wrongful death lawsuit on behalf of his deceased wife and any dependent children. If husband then files for personal bankruptcy, the husband's share of wrongful death claim and any potential recovery becomes an asset of the bankruptcy estate. Translation: if the husband makes a recovery of money through a wrongful death settlement or verdict, those proceeds can potentially be reached by his bankruptcy creditors. In fact, the bankruptcy trustee ( the person appointed to represent the interests of your creditors during your bankruptcy case) has the right to hire separate counsel to pursue the wrongful death claim on behalf of the bankruptcy estate.

Can the bankruptcy trustee take 100% of the husband's wrongful death proceeds in our example? This is where state law applies. Under Ohio law, there is an exemption  for:

"a payment on account of the wrongful death of an individual of whom the person was a dependent on the date of the individual's death, to the extent reasonably necessary for the support of the person and any of the person's dependents."

This means the husband and any other dependents (children) would be albe to retain some of the wrongful death proceeds for support of himself and any of the children. The amount of this figure would probably be within the bankruptcy judge's discretion.

As to any dependent children, they would have their own separate claim in the wrongful death lawsuit for the loss of love, companionship, and affection/guidance bacause of their mother's death, and in my opinion, any wrongful death proceeds they recover would not be subject to the reach of their father's creditors in bankruptcy court.

There's more to it than this but that's the down and dirty summary. Obviously, to navigate both the wrongful death claim and any potential bankruptcy require attorneys with knowledge of how all these laws intersect.

Monday, January 7, 2013

Medical Care In Hospitals: "Copy And Paste?"

Electronic medical records (EMR's) have been hailed as the greatest thing since the X Ray in medical circles. For those unfamiliar, they are replacing the age old handwritten records with entries entered  and stored on a computer. The theory is that gone are the days of chicken scratch handwriting, and an added benefit is electronic access to a patient's medical chart from remote areas outside the hospital, for example.

The reality is not matching the hype. First, simply reading and dechpihering electronic medical records in Ohio personal injury and malpractice cases we investigate has often become the equivalent of cracking a WW II German Enigma Machine message (used for the encryption and decryption of secret messages for those interested in useless trivia).

It can be a maddening exercise, due to the fact that there is a ton of repetitive "programming" information repeated on many pages of a patient's chart. Looking for anything of substance is like finding a needle in a haystack. It may make sense to the Information Technology guys and gals who developed this software, but for anyone else it's maddening.

And now this: EMR's have begun to foster a widespread practice of medical personnel "copying and pasting" a patient's previous diagnosis or vital signs and may be affecting patient care. According to a recent medical study in Ohio, 82% of residents' notes and 74% of attending physicians' notes included 20% or more copied and pasted material from the patients' records.” The study of 135 patients' records utilized plagerism detection software to pick up on this alarming practice. In one case:

“...a patient left the ICU and was readmitted a couple of days later. The patient's medical record included so much copied and pasted information, the new team of doctors wasn't able to decipher the original diagnosis. In the end, the new team called the physicians who originally diagnosed the patient.”

So--too busy to re-check the patient's vital signs and whether he or she is getting better or worse two or three hours after a physician's order? Just copy and paste the previous vital signs into the patient's record and move on. Don't think this happens? Think again. This study is spot on with what we are seeing with our own eyes as we review electronic records in our own practice.

Simply put, this new technology is subject to being abused in a hospital or other setting where patients are being moved through a system. We need no study to know that the practice of medicine has become a volume business. New technology can be a good thing and EMR's are no different, as they bring many benefits to the table regarding patient care. But like any new technology, it is subject to abuse.

It is admirable that certain medical professionals are beginning to address a problem we already are beginning to see: "copy and paste" medical care and treatment.