Wednesday, September 9, 2015

How Secret Insurance Company Databases Are Used (And Misused) Against Personal Injury Victims...And The Key That Allows Them Access

Just the other day I was negotiating an auto accident claim with an insurance company adjuster. The conversation went something like this:
     Adjuster (Adj): Your client had a previous injury to his foot.

     Me: No he didn't.

     Adj: Says right here in our ISO database that he had some sort of injury or claim involving his foot before the crash.

     Me: I'm pretty sure I'm right but if it's true I need to know about it. What info do you have in your database? What date are you referring to?

     Adj: (gives date of "previous foot injury").

     Me: Ah, well that date was ONE DAY AFTER THE CRASH WITH YOUR INSURED, so it's wrong! There was no prior injury to his foot!

     Adj: OK, well, I'll make a note that there was no previous injury.

And there lies the problem. Insurance companies have access to gigantic databases of information that they love to scour in an effort to see if auto accident victims have made any sort of previous claims of injury in past auto accidents, falls, or even workers' comp claims. In theory, no problem: if you've had a previous injury or problem with a body part that's been injured in a crash, that's fair game for everyone--your lawyer and the insurance company--to know.

But who knows what garbage is entered into those databases? In my client's case, the information in the database shared by the adjuster over the phone was dead wrong. What's more, insurance companies can access your credit and debt history, including any bankruptcies. Unless your Donald Trump, insurance companies view your past bankruptcy as a stain on your character, and more likely to file an exaggerated or "trumped up" (pardon the pun) claim.

What's the key that unlocks their access to this database? Your Social Security Number. In my client's case, he dealt with the insurance company on his own before he hired me. He disclosed his SS No to them as part of their "routine procedures" early on in the claims process.

Do NOT give the at fault driver's insurance company your Social Security Number! Despite what they may tell you at the outset of your claim, they do not have to have your SS Number to process your claim. I NEVER give out my clients' SS Numbers, even when told by the adjuster that "we have to have it." No, they don't. They may need it when the claim settles in order to verify whether the claimant was receiving Medicare benefits, but that can be done after a settlement is reached.

But they do WANT it as soon as possible--to make a trip to their database to snoop and sniff. It can often influence their settlement offer, and in a bad way. And as my recent experience points out, who knows if the data is correct or garbage.


Wednesday, August 12, 2015

Insurance Companies And Motorcycle Accidents: Looking For Blame In All The Wrong Places

Insurance companies will stop at nothing to find ways to blame motorcyclists in car-motorcycle crashes. A recent case I settled on behalf of an injured motorcyclist illustrates this point.

Scenario: my client-motorcyclist entered the intersection with the right of way traveling the speed limit (25 mph). The negligent driver rolled through the stop sign and entered the intersection. Realizing that a crash was imminent, and with nowhere else to go, the motorcyclist laid the bike down to avoid being smashed by the car, and was injured in the process. 

The driver of the car was cited in the crash.

The insurance company for the at fault driver took his recorded statement, and he confirmed that he was going the speed limit. There was little to no damage to the motorcycle, and there were no skid marks. In other words, there was no physical evidence whatsoever that the motorcyclist was speeding.

Months later, the adjuster sent my client a letter (before he hired me) claiming that he was 30% at fault, because (1) he "panicked"; (2) he had ample time to stop; and (3) the driver of the car thought he may have been going 30 mph and was therefore speeding.

Thinking this was b.s., he hired me. How did the adjuster come up with his "you were 30% negligent" figure? He pulled it out of thin air. Why did he take this position? Because he could, and because of the usual tactic taken by insurance companies in many motorcycle-car collision cases: blame the motorcyclist because of the bias and prejudice against motorcycle riders.

After I reviewed the case, I concluded that the motorcyclist did nothing wrong, and reacted in split second fashion to an oncoming 3,000 pound bullet the only way he could have: avoid a T-bone crash by laying the bike down, the only real option he had.

Ohio law is clear that if a motorist has the right of way and is not speeding, he cannot be charged with being at fault in a crash. This, however, did not stop the adjuster from taking a "you were 30% at fault" position. Why did he take this position? In this example, under Ohio law, if you are 30% responsible for your crash, you can recover only 70% of your medical bills, lost wages, and pain and suffering.

Because the adjuster would not back off of this position, we filed a lawsuit. A new adjuster was assigned to the case, and they backed off and finally made an offer that was reflective of the fact that my client did nothing wrong.

The takeway here is that motorcycle accidents are scrutinized much more than crashes involving two cars. The reason is simple: motorcycle-car crashes usually involve more serious injuries, usually to the motorcyclist. Because they have more to lose in a settlement payout or jury verdict, they often resort to nitpicking the motorcyclist's actions in an attempt to save money. Unfair? Yes. But it happens all the time. That's why our phone rings...    

Monday, April 27, 2015

A Neil Young Inspired Mediation Tactic In Personal Injury Cases

By Brian R. Wilson, Esq.

Only the most hard core Neil Young fans (that would include me) have heard of his obscure tune "Walk On" (from his mid 70's album "On The Beach"--a commercial flop but an album that more recent critics have hailed as genius). Unbeknownst to Neil, it offers a great strategy at certain mediation conferences.

For those unfamiliar, mediation is the process where parties  meet informally with a mediator to try to settle a lawsuit or dispute short of a trial. 

Most sane people would rather forego going through a trial and "settle it out of court" if at all possible. In cases of private mediation (where both sides agree voluntarily to mediation and agree upon a mediator), almost all mediators are highly skilled and like the bullpen closer, they successfully close the overwhelming majority of the cases they mediate. 

What is the recipe for a successful mediation? From the plaintiff's standpoint, her attorney's stock in trade is twofold: (1) placing a realistic settlement value on the client's case after the due diligence of fact gathering, depositions, hiring experts, etc. is complete; and (2) managing the client's expectations. There's a LOT more to this, but suffice it to say the client and her attorney need to be on the same page at mediation as to what the settlement demand will be, and what is a realistic, acceptable final offer.

The defendant/insurance company's mediation metrics consist of "risk evaluation." Definition: what is our risk of getting tagged with a verdict we won't like at trial, what are the limits of our worst case scenario verdict, and what are the remaining litigation costs and expenses going forward? In theory, the combination of all these considerations should translate into some sort of realistic mediation settlement.

This is how it's supposed to work. But not all personal injury cases settle at mediation, for many reasons, even when the plaintiff and her attorney have made a realistic settlement demand. Sometimes, insurance companies come to the mediation table with no real desire to resolve the case.

In my experience there are a few tactics that increase the chance that a case won't settle at mediation.


Many insurance companies have invested billions in fancy software programs that input all of a personal injury plaintiff's accident data (injuries, medical bills, lost wages, pain and suffering, future care needs and future pain and suffering). The program spits out a settlement figure, and that's about it.

No deviation from the algorithm. The claims representative shows up at mediation with the insurance company attorney and, marching orders in hand, convey "take it or leave it" offer with little to no deviation from that number. 

Certain insurance companies (Allstate and American Family, to name a few), are famous for this. Their message: take the case to trial and beat our offer. Makes for a short and time wasted mediation. You can't negotiate with a robot.


This tactic often surfaces in catastrophic injury cases, where the potential for a huge jury verdict is substantial. Occasionally, the insurance company will suggest "early mediation" before the lawsuit gets bogged down with too many depositions and experts.

This olive branch approach sounds good in theory, and there are times when the insurance company is sincere in the mediation offer. But it is often offered with another purpose in mind.

Take for example a young, married wage earner with children, who is killed due to a truck driver's negligence. The effects of the loss of a spouse and parent can be devastating, both emotionally and financially. The grieving family is vulnerable and must withstand this tsunami for years to come, and insurance companies realize this.

Let's assume that, internally, the insurance company has evaluated its risk of an adverse jury verdict in this scenario at $3-5 million. Early mediation may offer it the opportunity to make an offer of $1-1.3 million at the end of a long mediation, well below its own evaluation of risk. There is one purpose for doing so: to dangle enough money on the table to make the family think long and hard about turning down the money out of economic necessity and vulnerability.  


Dean Smith, the late great North Carolina basketball coach, was the architect of the "four corners stall." The idea is to hold the ball for as long as possible while ahead on the scoreboard in order to run out the clock, or force the opponent to gamble on defense and make a mistake. Insurance companies and certain institutional defendants, like nursing homes, will occasionally employ this tactic, with mediation acting as camouflage.

Recently, I litigated a case against a long term care facility. Numerous depositions had been taken, and the trial was close at hand. The timing of the mediation was perfect in that enough information (known as "discovery") had been exchanged that the parties had a good idea of the probable jury verdict outcome.

Yet, at mediation, the facility showed up with a realistically low settlement offer, claiming it needed "more time" to evaluate the case. Truthfully, it needed no more time, and the offer was designed to weaken my clients and make us spend more money on trial preparation. It had the opposite effect of hardening my clients' resolve to see the case through to the end.

Less than one week before the trial, the facility made an offer it should have made three months prior, and the case settled.

When any of these scenarios rear their ugly heads, often the best tactic is to invoke Neil's advice and "walk on." In the right case, it can send a powerful message to the other side that you are prepared to take the case to trial and a verdict.

But it is important to walk on in a professional, emotionless manner without burning any bridges with the other side, for one reason: good mediators will not consider the case closed when one side leaves the mediation table. Many mediators will not view walking on as a failure, but an opportunity to keep the lines of communication and negotiation open, and this will often result in a settlement days or weeks after the "face to face" mediation has concluded.

Hopefully now my parents understand why I blasted all of those Neil Young albums in the house or the car. Educational purposes only.... 





Monday, March 30, 2015

When Nursing Homes Fumble The Transfer Process...And What You Need To Know

By Brian R Wilson, Esq.

In the fairy tale movie classic " The Princess Bride," Miracle Max (played by Billy Crystal) is the medieval "pharmacist" responsible for concocting a magic potion to bring hero Wesley back to life from a "mostly dead" state. When asked to hurry the job, he snarkily replies: "You rush a miracle man, you get rotten miracles."

Such is often the case when hospital patients are transferred and become nursing home residents. The rush of the transfer process can sometimes expose nursing home residents to serious harm.


From The Hospital's Standpoint: 

When a Medicare patient is admitted to a hospital, the hospital's payment is based on the diagnosis or DRG ("diagnosis related group"), and NOT the number of days spent in the hospital. But there are special "transfer DRG's" that determine a hospital's payment for patients transferred to skilled nursing facilities like nursing homes.

It's complicated. But at the root of it is the possibility that a patient  transferred from a hospital may be due in part to payment and reimbursement rules as opposed to what is in the patient's  best medical interests.    

From The Nursing Home's Standpoint:

Any seasoned nursing home malpractice attorney is familiar with the term "census" or "census development." It refers to a nursing home's efforts to fill as many empty beds as possible. Simple math is the reason: more resident bodies in beds, more $$$. Nursing homes have departments and personnel dedicated to the recruitment and referral of patients from both hospitals and directly from the community. Their Marketing departments work directly with hospitals to stay top of mind for hospital referrals, and their Admissions departments are charged with screening admissions to make sure the nursing home can meet the residents' care needs upon admission.

That's all well and good, but in the rush to keep the census of admissions high, it can be a breeding ground for mistakes, shortcuts, and cutting corners. 

The Rushed Admission...  

The turnaround on a transfer from a hospital to a nursing home can be less than 24 hours. In a recent case I litigated, the nursing home was sent medical information regarding the patient's condition and medical needs, and accepted the patient for a future transfer within hours. So far, so good, but the patient was not transferred to the nursing home until late afternoon on a Friday--some 48 hours later.  Upon arrival, there was no oxygen in the room and no special breathing equipment per the hospital physicians' orders. It was a rushed transfer and admission, and things only got worse because of a series of choices by the nursing home about when to order necessary equipment.

The nursing home had a policy of not ordering certain respiratory equipment until after the patient arrived, for fear of being charged for delivery and use of the equipment in the event the patient did not arrive at the home for whatever reason. Unfortunately in this case, the equipment did not arrive until after the patient died, approximately 12 hours after admission.

 By the time a hospital patient is transferred to a nursing home, the nursing home is supposed to be familiar with the patient's specific care needs. Federal regulations require it: 

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being, in accordance with the comprehensive assessment and the plan of care. 

In virtually every case, the hospital sends the physician's orders to the nursing home so that the nursing home can make sure the patient's specific care needs can be met. What's more, the patient typically shows up at the nursing home with a copy of the hospital physician's orders, in case they weren't transmitted before his or her arrival. Yet, despite clear orders and regulations, necessary equipment is sometimes not present when the patient arrives.

The Takeaway...

If your loved one is about to be transferred from a hospital to a nursing home, ask as many questions of the nursing home as you possibly can. Make sure you have a copy of the physicians' orders that will accompany your loved one to the nursing home, and have the hospital explain it to you and go over any abbreviations in the orders.

Make sure those orders make sense to you. And when you arrive at the nursing home, you'll have a good idea what their marching orders are, and what they should be doing to follow them. 


Monday, January 26, 2015

Large Truck Wheel Separation Accidents: What Are The Common Threads?

By Brian R. Wilson, Esq.

Imagine a rolling, 200 pound tractor trailer wheel careening toward you at 50-60 MPH when you're traveling at 65-70 MPH and have nowhere to go to swerve or avoid it. This is what can happen:

  (Actual photo of truck trailer wheel after impacting a pickup truck going in the opposite direction on a  four lane, major Interstate)

 Large truck tractor or trailer wheel separation is like a detonated dirty bomb: you never know the true path of destruction or how devastating the damage will be. And the damage is often done in a split second. But a wheel separating and the resulting injuries to motorists is rarely ever the product of a sudden, unexpected, split second event. To understand the reasons for a commercial truck wheel separation, one must first appreciate that a large truck is not a car and a large truck crash is not like a car crash.

Large trucks (defined as vehicles with a gross vehicle or gross combination wright rating as 10,001 pounds) are regulated by federal and state law. Specifically, The Federal Motor Carrier Safety Act (FMCSA) contains very specific regulations involving a myriad of situations affecting large trucks, from hiring of drivers to the operation and maintenance of trucks.

These regulations include obligations on drivers to inspect their rigs both before and after every trip and document that fact. Thus, by reconstructing the driver's activities via log book entries, fuel and other receipts, maintenance and repair records, and other documents, it can yield evidence and clues as to why a wheel separated.


A truck driver pulling a trailer on the Interstate suddenly notices that his rear dual trailer wheels have separated from his trailer. They smash into a car traveling the opposite direction, injuring occupants in the car. The truck driver tells the investigating officer that he had no notice of any problems. However...

Nine days before the incident, the truck driver undergoes a routine inspection by Department Of Transportation in a nearby state, and the inspection reveals the trailer's brakes are shoddy and leaking brake fluid, among other violations. The trailer is deemed "out of service" until the brakes can be replaced. A repair facility performs the brake repairs, and to do so has to remove and re-attach the wheels to the trailer.

So why did the dual trailer wheels suddenly disengage nine days later?

Because a lawsuit was filed, both the driver's paper trail, and the wheels themselves, were examined. The wheel holes (through which the bolts slide to accept the lug nuts) revealed a wear pattern that was consistent with a gradual loosening of the lug nuts. We claimed the physical evidence was such that a driver would have noticed a problem either through feeling a problem while driving. or through mandatory pre or post trip inspections, which include wheels and lug nuts.

The other problem was that the lug nuts were either under or over torqued when repairs were made (which was denied by the repair facility). The combination of these two factors led to the wheel separation, in our opinion, and took this incident out of the realm of a sudden, unexpected, "freak" occurrence.

The lawsuit was settled shortly before trial. By stepping back and re-constructing the driver's and the trailer's history before the incident, we were able to show plausible reasons for why a set of wheels could separate just nine days after they were re-attached.

One final note: many of the "retention" periods for certain aspects of a driver's paper trail under the FMCSA are as short as six months. All the more reason to contact an attorney or firm familiar with handling large truck accident cases sooner rather than later.

Sunday, January 11, 2015

Why The Lack Of A Citation Against A Nursing Home Is No Bar To A Negligence Lawsuit

By Brian R. Wilson, Esq.

Nursing homes are regulated by state and federal agencies. As part of their license, nursing homes are required to undergo an annual license certification survey. In addition, they are subject to unannounced annual inspections/surveys.

More importantly, they can be investigated after an individual complaint is filed against them. This sounds all well and good, but what is the likelihood that a preventable mistake in a nursing home will ever see the light of day in the form of a citation against the nursing home? And what effect does a citation or lack of one have on any negligence lawsuit filed against a nursing home?


Under Ohio law, nursing homes have an obligation to report incidents of abuse, neglect, and theft of residents' property to regulatory authorities. Abuse and theft appear to be obvious, but what is meant by "neglect?" Federal regulations define it as a "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness."

In a recent nursing home case I litigated, we claimed a nursing home did not timely secure physician ordered respiratory equipment, which we claimed resulted in harm to the resident. According to them, there was no legal obligation to self-report the incident as an instance of "neglect." Assuming this to be true, what does that say about the relative weakness of the obligation to self-report adverse incidents resulting in harm to residents?

Answer: it's as weak as a cup of tea brewed with an old, used tea bag. Bottom line: if they don't report it, you have to make a formal complaint about the care your loved one received to The Ohio Department Of Health.... or hope the surveyors just happen to find it on their own in the annual survey process


What is the likelihood that a random survey will catch a nursing home error or substandard care that results in harm to a resident? To start with, there are 945 nursing homes in Ohio. Assuming a conservative number of 100 residents per home, that's almost 100,000 residents per year.

State surveyors simply don't have the time and resources to go over the medical charts of every resident to scrutinize whether their care was adequate. As a result, the surveyors will examine a random, representative sample of residents' charts. According to testimony in a recent nursing home case, it was estimated that surveyors randomly sampled approximately 20% of current residents' charts, which included past residents from that same year.

Bottom line: it's hit or miss, and perhaps largely miss, that a survey will ever discover an instance of substandard care, and that assumes the surveyors have access to all charts.


Suppose you do file a complaint against a nursing home. If the appropriate agencies investigate and do not cite or fine the nursing home, does it prohibit you from pursuing a negligence lawsuit against the nursing home? Not at all. Whether or not the nursing home was cited/fined HAS ABSOLUTELY NO BEARING on your ability to sue the nursing home. Under Ohio law, the results of any survey process are inadmissible in any lawsuit. If the nursing home was not cited, it cannot stand up in court and tout that fact. Conversely, if it was cited, the patient's family cannot introduce that fact into evidence.

Why? I've seen countless cases where the nursing home was not cited, yet it knew it handled the resident's care in a substandard manner, and chose to settle the case, or a jury decided that the nursing home was negligent. And in fairness to nursing homes, juries have concluded that a nursing home was not negligent even in cases where the nursing home was cited by a state or federal agency.

All of this proves one thing: the survey and citation process has its limitations, and any jury that decides a nursing home negligence case does so independently of any survey process.  And that's a good thing.

So D.I.Y. Report the nursing home if you suspect your loved one received inadequate care, come what may of the process. Don't be the needle.....