Thursday, July 24, 2014

This Was Not A Seven Figure Settlement....But Satisfying Nevertheless...

Law firms and lawyers love to brag on websites about a lot of things.

Much of it is useless fluff ("experienced" or "aggressive"attorneys, whatever the hell that means) and some of it can even be quite misleading. Many of those "seven figure settlements" or verdicts a firm lists are not even the product of their own work or expertise. Many firms refer those cases out to another attorney or firm.

All that aside, today was not one of those "seven figure" days for me. In fact, today was a freebie for an elderly couple. Weeks ago their car got hit by a real gem of a nice guy who fled the scene. They weren't hurt but their car was totaled.

The driver was driving someone else's car, so there was a delay of a few weeks in getting the owner's insurance company to appraise the car and investigate the claim. In the meantime, the storage fees on the car exceeded $1,000, through no fault of the elderly couple.

This particular insurance company, who I have had consistently HORRIBLE dealings with, tells these nice folks: "we're only paying half of the storage bill since it's too much." They offered him $1200 on his car, and told him he could pay the rest of the storage bill out of the $1,200 offer.

They did this for one reason: they could. They figured they could strong arm these folks into caving in, because no lawyer would take their case over a $500 storage bill dispute.

They called me after an Internet search, and I told them to come in after hearing their story. I had an idea. I told them that if I call the adjuster on their behalf, it would probably go nowhere because the first thing out of his mouth would be "it's company policy," followed by "go ahead and sue if you want," figuring that no lawyer would do that over such a small amount.

So here's what I told them: "Go down to the local municipal court, take out a small claims petition, and bring it back. I'll help you fill it out and then take it back and file it. THEN I'll call the adjuster and my guess is that it will get worked out, since now they'll have to send a lawyer and an insurance rep to the hearing."

Almost a week later, I finally get a return call from a new adjuster. After haggling over a few facts, I told him that my clients sued their insured and if they did not want to pay the storage they could tell the magistrate at the hearing why a nice elderly couple should have to incur any storage fees for a hit and run driver and a delayed insurance investigation that led to the high storage bill.

And I told them I would be at the hearing representing these folks for free.

Next day, it's the adjuster on the phone: "we'll pay the storage bill."

Happy ending. Clients got what they wanted, and weren't out anything in the process.

I made no fee but made new friends. I guess it's a good sign that after 25 years, what happened to some nice folks still ticks me off enough to help with a practical solution to the problem. No burnout yet. Still like what I do.

It's certainly not headline grabbing. And it won't pay any overhead. But it sure is satisfying as hell. Call it a "zero figure settlement." Now there's some real bragging.....

Wednesday, July 9, 2014

Bulges, Herniations, and Extrusions, Oh My! Injured Spinal Discs After A Car Crash (And What It All Means)

  By Brian R Wilson, Esq.

 Car collisions can frequently cause injuries to the lumbar and cervical spine. When the spinal discs or "shock absorbers" of the spine are injured, it can mean pain, immobility, numbness down a limb, and even require therapy and surgery. Anyone who's ever had some sort of spinal disc injury can attest to the pain they can cause.

But what's the difference between a bulging, herniated, extruded, or torn spinal disc? In a recent trial I had in an auto collision case, a local chiropractor did an excellent job of explaining the difference between the various forms of injuries to spinal discs, which you can read below:                                                                

16   Okay.  Thank you.  So have we covered all  

17         the fractures then?                                

18   A.    I believe so.                                      

19   Q.    All right.  Let's move to other injuries or        

20         conditions that you discovered in  ______'s  

21         spine.                                            

22   A.    Okay.  The --                                      

23   Q.    Go ahead.                                          

24   A.    We did a standard orthopaedic neurological        

25         examination when she first entered our office.    

 1         This examination is designed to allow me to provide

 2         a working diagnosis, which is what the problem is,

 3         what's generating the pain, what's the pain        

 4         generator.  And on this examination we saw greatly

 5         decreased range of motion in the lumbar spine and  

 6         in the cervical spine, pain on motion, orthopaedic

 7         tests, which were designed to let me know, again,  

 8         how severe the injury is, is it just a pulled      

 9         muscle, a strain/sprain, a pinched nerve.  Some of

10         them were -- she was in too much pain to perform  

11         them.  There were two orthopaedic tests that led me

12         to believe that she may have a herniated disc in  

13         her lumbar spine.  Specifically Kemp's test and    

14         Valsalva's test.                                  

15                 Along with that, she was experiencing      

16         radiating leg pain.  Because of those findings, I  

17         ordered immediately the MRI, and the MRI did show,

18         along with the pelvis fracture, it showed herniated

19         discs in the lumbar spine level.  The herniated    

20         discs were classified as extruded in nature and    

21         they were at L3/L4, L4/L5 and L5/S1.              

22   Q.    Okay.  Could you show us on the model.            

23   A.    Yes.                                              

24   Q.    And then explain to us what an extruded herniated  

25         disc is.                                          

 1   A.    Okay.  Your discs are the shock absorbers in      

 2         between each vertebrae.  They're designed for low  

 3         transfer and for support.  They're made of mostly  

 4         water.  They're soft tissue.  A herniated disc is  

 5         when enough pressure is on that, that it will want

 6         to come out.  In layman's term, a slipped disc.  A

 7         bulging disc is the beginnings of a herniated disc.

 8         The red on this picture is a herniated disc, on    

 9         this model, if you can see that.                  

10   Q.    Okay.                                              

11   A.    On this model here, this might be a better model,  

12         the red bulging out here is a herniated disc.      

13   Q.    All right.                                        

14   A.    Okay.  The danger is, it will come out really close

15         to this nerve and it will pinch.                  

16   Q.    And it will break off?                            

17   A.    It will break off.  A nerve's like overcooked      

18         spaghetti in real life.  It only takes the weight  

19         of a quarter to cause 60% nerve malfunction.  It  

20         doesn't take much weight.  So an extruded disc is a

21         disc that is bulging even further than most, and --

22         can I use my board now?                            

23   Q.    Absolutely.                                        

24   A.    This would be a good time to explain this.        

25                 MR. WILSON:  Let's go off the video.      

 1              (Off the record discussion was held)          

 2   A.    Okay.  On disc, if we have a normal disc, looking  

 3         at it from top to bottom, and that would be like  

 4         this, (Indicating).  If I'm looking at this        

 5         vertebra like this, there's the disc, this is the  

 6         disc.  A normal disc would have no type of bulge or

 7         deviation around there.  It would be nice and it  

 8         would be smooth and round.  If we have a bulge,    

 9         then we're going to start to see this right --    

10         right there, and a radiologist will measure this to

11         determine if it's a bulge or if it's actually a    

12         true herniation.  So this is a bulging disc.      

13                 Then as we get worse, we have what's called

14         a protruded disc.  Now the bulge has grown more,  

15         and there's a measurement from here to here.      

16         (Indicating).  They measure how long it is here and

17         how deep it is here, and then that measurement    

18         tells them if it's a protruded disc or not.  That's

19         the first stage of a herniated disc, okay.  You    

20         would have a nucleus in the middle, and it's      

21         wanting to come out, it's like a jelly-filled      

22         doughnut, and it's pushing, it's pushing, it's    

23         pushing out.  There's our nucleus.                

24                 Then the next disc you would have would be

25         the extruded disc, and on the extruded disc, the  

 1         nuclear material pushes out, and it actually breaks

 2         the annular fibers that holds that nucleus in      

 3         there.  There's a tear in the fibers, which her MRI

 4         report also said annular tear, so it fits right    

 5         along with an extruded disc.  So this is a        

 6         protruded disc, this is an extruded disc.  Then as

 7         it gets worse, you get a migrating disc.  That    

 8         extrusion will want to float or want to migrate up

 9         and down the spinal column, okay.  And that's      

10         nuclear material.  The nucleus, like that.        

11         (Indicating).  Then the next one, which is the    

12         worst of the worst, is you have a migrating disc  

13         that becomes a fragment.  It broke off in there.  

14         Okay.  This is almost always surgery right here,  

15         okay.                                              

16                 So out of all these discs right in here, we

17         know through studies that this extruded disc is    

18         kind of special because it takes a trauma to cause

19         it.  Studies show that a majority of patients might

20         have a herniated disc and not know it and live    

21         asymptomatically.  That's true for a protruded    

22         disc, but for an extruded disc, when there's a    

23         annular tear, there's almost always over 90%, 95%  

24         chance that there was a trauma that happened that  

25         caused it, meaning a person will know if something

 1         happened for that to occur.  They weren't just    

 2         living with it and then all of a sudden it creeps  

 3         up and comes on when they bend or twist the wrong  

 4         way.  So these are the different types of herniated

 5         discs.  And our patient  had three of these, at

 6         L3/L4, L4/L5 and L5/S1 on the MRI.                

 7   Q.    Thank you.                                        

 8   A.    Thank you.                                        

 9   Q.    Let's return you to your seat so you don't have to

10         stand there.                                      

11              (Off the record discussion was held)          

12   Q.    Generally speaking, what kind of problems can an  

13         extruded disc create in patients?                  

14   A.    Well, it depends on how much pressure's on the    

15         nerve root.  If there's a lot of pressure on the  

16         nerve root, it could be anything from just slight  

17         numbness or tingling down a leg or down an arm, to

18         loss of bowels control, a loss of bladder control,

19         loss of leg function, loss of muscle function.  It

20         all depends on how much pressure is on that nerve.

21         It only takes the weight of a quarter of pressure  

22         to cause 60% nerve malfunction.  So it's important

23         to try to get that disc off as soon and as fast as

24         possible and to start the healing process as fast  

25         as possible to make the strongest repair, strongest

 1         scar formation, so that it won't do that.  That's  

 2         why we ordered the MRI as soon as we did.

Tuesday, July 8, 2014

Does A Misdiagnosis Mean That You Have A Viable Ohio Medical Malpractice Case?

Not necessarily.  First, let’s start with some basics.  A misdiagnosis MAY mean that a doctor was negligent.

Example:  You are involved in a single car crash.  You’re transported to the local ER, where an ER doctor performs a physical examination, and notes severe tenderness of your cervical spine.  An x-ray of your cervical spine is ordered and read by a radiologist, who reports that there are no fractures.  Her diagnosis is a “cervical sprain.”

You are released from the ER, but your pain is getting worse.  In fact, it’s to the point that you can barely move your neck.  You see a local orthopaedic surgeon two weeks later, who takes another x-ray, and, minutes later bursts into the room and says:

“You need to go to the hospital immediately.  You have a broken neck!”

The orthopaedic surgeon eventually reviews the original ER x-rays and confirms that the fracture was indeed present on the original x-ray.  It was there all along.  The radiologist misread the x-ray. 


Just as a stool has three legs, you need to prove 3 things in any medical negligence claim: (1) negligence that (2) directly caused (3) losses and harms, known as "damages." Unless you have all three, no winnable case. 

 Was the radiologist negligent in misreading the x-ray?  Yes. The 1st leg of the stool is secure. Does this mean you have a viable medical malpractice case for the misdiagnosis of your broken neck? It depends.  Let’s add to the fact pattern.  Assume that in the two week period between your discharge from the ER and the discovery of your broken neck, the fracture has become “displaced.”  Definition:  the fracture has shifted or moved from its original position, which is now potentially life-threatening because it may occlude or pinch the spinal cord.

Why did your neck fracture move or become displaced?  Because of the lack of a hard neck collar that should have been secured to your neck in the ER, which, at a minimum, is required to immobilize a broken neck.

Because your fracture is now slipped/moved/ displaced, there is only 1 option:  surgery to repair the fracture, followed by one of the most dreaded post-operative devices known to patients:  the “halo brace.”  This medieval  torture device is screwed into your head for weeks after surgery to make sure the fracture maintains proper alignment, which promotes proper healing.

The negligence and delay in properly diagnosing the neck fracture directly caused your broken neck  to deteriorate. The 2nd leg of the stool---direct causation or cause and effect--is met. The harms and losses directly caused by the negligence and delay--the surgery, halo brace, and other assorted miseries---secure the 3rd leg of the stool--damages.

Now, let’s change things a bit.and assume the same misdiagnosis and two week delay in diagnosing your neck fracture, but with a critical difference.  Instead of ordering you to the hospital, your orthopaedic doctor tells you:

“I have bad news and good news.  The bad news is that your neck is broken. The good news is that the fracture is still intact, and you can be fixed with wearing a hard neck collar.  We don’t have to operate.”

Is the first leg of the stool still present?  Of course – you were negligently discharged from the ER with a broken neck!

However, the two week delay in diagnosing your broken neck did not make a difference in your outcome, nor did it make matters worse.  Had they diagnosed your neck fracture in the ER and placed a hard neck collar on your neck, you’d still be in the same boat from a healing standpoint because the nature of the fracture did not change.

This is a classic case of negligence without the 2nd leg of the stool:  direct causation between the misdiagnosis/two week delay and your ultimate outcome.

Does it mean the radiologist gets a free pass for misreading your x-ray in the ER? Probably.  Fair?  Not really, but that’s Ohio law.

These two alternating scenarios prove the point that each medical malpractice claim is unique, and does not usually lend itself to easy, black and white answers.

Here's the takeaway: with  few notable exceptions (like cutting off the wrong leg or leaving a large towel inside a body cavity after surgery), any “medical malpractice attorney” who can tell you after a 10 minute phone conversation that you have “a good case” is probably smoking something. Think about that if you're scouring the Yellow Pages or The Internet for "aggressive" or "experienced" medical malpractice attorneys... 

Monday, July 7, 2014

Will You Get Full Compensation In Your Ohio Personal Injury Case For Your Permanent Injury?

Before 2005, yes. After 2005, maybe not. Why was 2005 a watershed year on this issue?

Two words: "tort reform." What's that, you say? In 2005, The Ohio Legislature passed laws or "caps on damages" to limit what you can recover in personal injury lawsuits, commonly known as "tort reform." How do these limits work? An example hopefully brings this to light.

Let's say an impaired or fatigued truck driver is in violation of the federal motor carrier hours of service rules (the 14-hour driving window limit, 11-hour driving limit, or the 60-hour/7-day and 70-hour/8-day duty limits), and he falls asleep at the wheel, crashing his 82,000 rig into the back of your car.

The good news is that you survived. The bad news is that you broke 11 ribs and your leg, in the form of a tibia-fibula fracture. You also sustained a closed head injury. You spent a month in the hospital, including placement of a metal rod in your leg in an effort to reconstruct what's left of your tibia and fibula.

You missed a year of work, lost $50,000 in wages, and incurred $200,000 in medical bills. After a year of therapy, you no longer walk with a profound limp, but you have severe pain in your leg daily with activity. Your doctor has told you that arthritis has set in and your leg function and pain is never going to improve. Your leg is so bad that you can't even exercise with it or walk on it for any lengthy period of time. All your hobbies--golf, hiking, bicycling--gone. Finished.

And you're only 40, so you have at least 30-40 more years left on a leg that is permanently injured and will never be the same.

Now let's hit the re-wind button to before 2005. Before tort reform caps were passed, you would have been entitled to recover for the permanent injuries and limitations to your leg as part of your pain and suffering with no limitations. If, for example, a jury valued your past and future pain and suffering for the rest of your life at $500,000, that is what you would have received.

After 2005, The Ohio Legislature arbitrarily capped your compensation for pain and suffering to a sliding scale of $250,000 not to exceed $350,000 maximum for ANY permanent injury unless you meet one of 3 exceptions to the cap:

  • loss of a "bodily organ system";
  • a permanent and substantial physical deformity; or
  • inability to independently care for one's self in every day activities of daily living.

In the example above, the only possible exception to the cap that MIGHT apply to your bum leg is the "permanent and substantial physical deformity." But here's what insurance companies in personal injury cases are at  mediation and before judges: that injuries like these do not rise to the level of "permanent and substantial physical deformities," and therefore the caps/limits apply.

Ultimately, a jury would have to decide whether any permanent injury meets any of the exceptions to the $250-350,000 caps on pain and suffering. But insurance companies are using the caps/limits as leverage for making lesser offers than they would otherwise be making if the Legislature in 2005 didn't hand them this uncalled for club to beat over the heads of legitimately injured Ohioans.

Why did The Ohio Legislature pass these caps? Simple. The business community, spearheaded by The Chamber of Commerce, asked for them. A simple case of ask and ye shall receive. The caps were "sold" to the public as bringing "predictability" to the legal system to keep business costs down AND create jobs, like a magic elixir. That's right--limiting what you can recover for a bum leg at the hands of an impaired or fatigued driver was supposed to create Ohio jobs...

Somebody queue in the cartoon laugh track on that one......