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.