"Why Don't You Care About What Happened?"

Our friend and neighbor was involved in an auto accident in Canton recently. This morning I spoke to her husband while walking my awesome "Heinz 57" mixed mutt Shepard. Sarcastically, he asked me why I didn't seem to care what happened to his wife. "We're getting all kinds of letters and DVD's from accident attorneys all over Ohio who are really concerned and want justice for us and we got nothing from you, so I suppose you don't really care about us!"

After we laughed about that, it confirms what I've known to be true for a long time after over twenty years of representing personal injury clients in Ohio: most people are offended by the barrage of solicitation letters they receive after an auto accident. Whether it's a fender bender or a tragedy involving serious injury or death, within days of a crash their mailbox is stuffed like a sausage casing about ready to split. This observation is usually followed by the usual remarks about us being "ambulance chasers" or "parasites" (I could go on with other perjorative phrases but I'll stop there).

Why do firms do this? Because it works well enough to sustain them continuing to do it. And it's cheaper than TV or radio I guess.

So put me in the category of one of those accident attorneys who "don't care" enough to send that stuff. But that's OK. Our phone still rings. And I sleep well at night (except when the dog decides to lap about a half a gallon of water from his special "night" bowl in the bathroom...)

SPECIAL REPORT: AUTO INSURANCE POLICIES TO AVOID IN OHIO

To quote musical icon Neil Young, “You pay for this, but they give you that.” This adage seems to be the recent trend with auto insurance companies who sell policies in Ohio. Lurking in the fine print (that you never see until AFTER you write your premium check) are numerous traps, exclusions and limitations that render your “full coverage” policy worthless after a crash.

Here are a few examples of some recent policies we’ve seen that are infecting the marketplace and leaving injured Ohio auto accident victims on the side of the road.

1. 21st Century Insurance and Its “Opt Out” Underinsured (UIM) Coverage.

Almost all insurance companies sell uninsured motorists’ coverage (known as “UM”) and underinsured motorists’ coverage (“UIM”) together as a package deal. Consider UM and UIM coverage like a set of twins. The “UM” twin will provide coverage for your injuries and losses caused by an “uninsured” motorist. The “UIM” twin will cover your injuries and losses caused by “underinsured” motorists who carry minimal liability insurance. Almost all insurance companies sell UM/UIM coverage together (again, think “twins”). So will 21st Century. But it will also allow you to “opt out” of purchasing underinsured motorists’ coverage in Ohio. A simple example will explain why this is an incredibly stupid option for any insurance company to offer, and why you should avoid it like a hornet’s nest at a picnic.

Let’s say you’ve been hit by an uninsured drunk driver, shattered your ankle, needed surgery with plates and screws, missed five months of work, and racked up $40,000 in medical bills and $10,000 in lost wages.

If you purchased $100,000 in uninsured motorists’ (UM) coverage with your own insurance company, you can make a claim with them for up to $100,000. If your injury claim is worth $100,000, your company has to pay it. That’s why you purchased this coverage.

But what if the drunk driver had state minimum limits of $12,500? This means that the driver was underinsured, meaning he had some insurance but not enough to compensate you for all of your losses. If you purchased 21st Century’s policy and were sold only “uninsured motorists’ coverage,” you’re out of luck. All you can collect is $12,500 from the drunk driver because you “opted out” of UIM coverage. If you had both UM and UIM coverage, you could collect $12,500 from the drunk driver’s insurance company and $87,500 from your own company, for a total of $100,000.

A recent Ohio law change allows insurance companies to separate out UM from UIM coverage. But almost all insurance companies (except 21st Century) still sell it as a package deal, and it makes absolutely no sense to “split the twins” and sell UM but not UIM coverage.

Lesson: Your UIM coverage is just as valuable as your UM coverage. In fact, there are probably more underinsured drivers (with very little liability insurance) than those who are driving uninsured! For not spending $50.00 per year or less on UIM coverage, you are now out $87,500. Do the math – this is a no brainer. Avoid ANY company that tries to sell you UM and not UIM and vice versa!

2. First Acceptance Insurance.

All insurance companies will offer “med pay” coverage which will pay your auto accident medical bills up to the limits of your coverage, whether its $1,000 or $5,000 or whatever amount you purchase. Here’s how it normally works with almost every company but First Acceptance: you simply turn in the bill to your insurance company and they will pay it as long as it’s related to the crash.

Not First Acceptance. Their med pay coverage is a “reimbursement only” policy. Definition: you, as the injured person, have to pay for the bill out of your own pocket first and then First Acceptance will reimburse you!

Here’s the fallacy of this “coverage”: many folks who purchase First Acceptance policies are financially strapped to begin with. Most can’t afford to shell out $1,000 or $5,000 to pay medical bills out of their pocket.

Therefore, despite paying a separate premium for this coverage, you can’t access it unless you first pay your bills out of your own pocket. So what good is this coverage? Not much at all.

And there’s one other item of fine print in First Acceptance’s med pay “coverage”: there’s NO coverage for chiropractic care. Almost all other insurance companies’ medical payments coverage will pay for chiropractic care.

3. Conclusion.

Here’s the common denominator of these policies: purchasers of insurance do not know what questions to ask, and many are sold over the phone. As you can see, how these policies really work in reality can be complicated stuff. Unfortunately, insurance is sold on one guiding principle: price. Just turn on your TV and you’ll hear all about “saving you 15%,” “keeping you legal for less,” and other “discounts.”

The old saying that “you get what you pay for” really does not fit here. The real problem with buying car insurance is that you really don’t know what you’re buying (or better yet what you’ve been sold) until after you’ve been put in the ditch by an irresponsible driver.

Can A Text Messager Be Liable For Sending Texts To Driver?

Nobody would argue that people who text and drive and cause a collision are negligent and should be held accountable for the injuries they cause. In fact, I have argued that to text and drive may well be reckless conduct that could warrant punitive damages against the offending driver.

But should the person who is texting the driver also be held legally liable if the "texter" knows the "textee" is operating the vehicle? A New Jersey lawsuit will examine this issue.  My guess is that this lawsuit will be thrown out and it should be, in my opinion, despite my sympathy for the motorcyclist and passenger who both lost a leg as a result of the crash.

Every driver under Ohio law and the law of every other state is obligated to use "reasonable care" under the circumstances. If you don't use reasonable care while driving, you are negligent. But you are legally liable for harm only if that negligence directly causes injury. Certainly, it is foreseeable that texting while driving will increase the liklihood of a crash because of the distracting nature of texting.

I'm sure the victims' attorney will argue that it was equally foreseeable to the texter that to continue to send messages to a driver also increases the same liklihood of a crash. But here's where the parallel ends.  What distinguishes the texter from the driver in this case is the element of control, or better yet the lack of control over the vehicle or the driver. Nothing prohibits the driver from turning off the damn phone, ignoring the text, or pulling over to respond. By consciously choosing to ignore safety and continuing to respond to messages while driving, it is the driver's actions that have directly caused the injuries, rather than the texter's.

At least that is how I see it. Sometimes you gotta "call em as you see em," even if it means the insurance companies will prevail on this one.  

The Vexing Problem Of Retained Instruments After Surgery

A medical technology company is developing radio frequency identification technology to assist surgical teams in detecting surgical sponges. At first blush this is not breaking news, but it illustrates a much bigger reality about our medical system.

For years, surgical items like sponges, towels, clamps, foreceps, gauze, and countless other items have been left in patients. Although estimates of this occuring varies, the larger point is obvious: despite all the best hospital protocols, rules, and policies requiring accurate counting of surgical instruments, "stuff" left inside patients' bodies continues to happen, as evidenced by continuing efforts to develop technology to overcome human error. But as safety technology is evolving, the obvious question is: WHY does this continue to happen?

After all, aren't hospitals accredited by organizations who scrutinze their patient safety? Of course. And don't they grant privileges to only the best surgeons who are vetted by the hospital credentialing committees? Presumeably. So how do retained surgical objects continue to happen in "Groundhog Day" fashion and fuel the ongoing need for new technological breakthroughs?

Simple. The practice of medicine is a volume business. Time is money, and patients are frequently a cog in a wheel of a continuing production schedule where medical decisions are often influenced by issues extraneous to what is best for the patient---like having the time to count objects. This is no great revelation to patients. As an analogy, just ask anyone who experienced a loved one discharged too early because of "reimbursement issues," despite what they were told by the medical team.  When something as simple as counting what goes in and what leaves the body is subject to repeated error, it is symptomatic of a larger problem.

We hear over and over that we have the best medical delivery system in the world and this is largely true. But leaving anything behind is 100% preventable and should never happen--no exceptions. In a time where politicians and the medical profession decries medical malpractice lawsuits, it is time to recognize that cases involving retained surgical objects prove an unassailable truth: a major cause of malpractice lawsuits is malpractice. And the easiest way to prevent these lawsuits is to decrease malpractice.

Negotiating With The Adjuster On Your Personal Injury Claim--Don't Do This

     It's one of many traps you can fall into when dealing with an insurance company on your own after an auto acccident. But this one is particularly easy to set and spring on you.

EXAMPLE

Potential client calls. Her statute of limitations is about to expire in 4 days. She's been dealing with the at fault driver's insurance company for almost two years now. After considerable delay, she finally speaks with the adjuster. The adjuster asks the magic question, the one learned at adjuster training 101: "What is it going to take to settle your case?"

A LOSE-LOSE QUESTION FOR YOU

In fact, it is more than magic--it is the PERFECT question to ask an unsuspecting auto accident victim because it is a win-win for the adjuster for two reasons. First, the adjuster is getting a commitment from you without ever revealing the insurance company's hand. Second, no matter what your response is, 99.99% of the time their response will be: "We can't pay that kind of money, so what are you REALLY looking at to resolve your auto claim?" At which point, most folks will reveal exactly what that figure is...

Bottom line: in the course of a few minutes, you've bid against yourself and revealed your bottom line and the adjuster hasn't given you anything in return. It's the equivalent of taking a hammer and whacking yourself with it a couple times. After going round and round with the adjuster, the potential client finally blurted out a money demand that was artificially high but at least gave her enough room to negotiate. Thankfully, she did not reveal her bottom line. But she got nowhere near what she should have been offered, and now I'll be handling her claim through a lawsuit.

But others fare less well. Sometimes the injured person makes so many negotiating mistakes that I can't unspring the trap.

Who Is Responsible For A Sponge Or Towel Left In A Patient After Surgery--The Surgeon Or The Hospital?

Answer: it depends, and sometimes both are legally liable. Every hospital has written procedures and protocols for the correct counting and inventory of any products utilized during surgery like sponges, gauze, towels, forceps, clamps, needles--you name it. In fact, one or more members of the surgical team usually documents at the end of the procedure that "all sponge/needle counts are correct."

Despite this "documentation," hundreds if not thousands of "foreign objects" are left in patients every year in this country. In a case I co-counseled a few years ago, a surgeon left a large towel inside a patient's chest cavity and, sure enough, the count of objects used during surgery was "correct" in the surgery record.

If the surgeon is an employee of the hospital, the hospital is liable anyway and it really doesn't matter if the surgeon or surgical team was responsible for dropping the ball (or perhaps dropping the sponge is a more accurate phrase).

But what if the surgeon is not employed by the hospital? As pointed out here, some states impose on the surgeon an independent legal duty to verify a correct count at the end of the procedure. If this is the case, both the surgeon and the hospital can be jointly liable for negligence.

In other states, the surgeon is considered the "captain of the ship" and can under certain circumstances be held solely liable. In Ohio, one or both can be held liable, and this makes sense given the fact that hospitals can and should have procedures in place for their surgical team-employees to mandate an accurate count.

But one thing is clear: when something like this happens, you can expect some finger pointing between the surgical team and the surgeon, with each claiming the other messed up the count. It reminds me of an old Bill Cosby comedy album (yes, an album and not a CD, so I'm dating myself) I used to own where he joked that he had re-named his kids "I don't know" and "not me" because that was their standard response when grilled by him after something got broken....

Consumers Turning To Social Media To Make Companies Listen

I love my clients--they come up with some of the greatest ideas! Just recently, I met with a really nice guy who was involved in a collision with a company truck owned by a "national telecommunications company" (we'll leave their name out of it). He's a disabled vet with a rebuilt knee that took a shrapnel hit in Vietnam.

He drives a large pickup because it is much easier on his crippled knee to get in and out of a truck or SUV than a regular passenger car. His truck is seriously mangled in the crash and it needs to be repaired. What's worse, he and his siblings are taking care of their gravely ill mother with 24/7 care at her home, so he needs a vehicle for his shift.

Enter the "national telecommunications company's" insurance company.

Long story short, there is considerable delay in getting his car appraised. After the appraisal, the adjuster refuses his request for a pickup truck or SUV as a rental vehicle. He is told "I see no need for allowing this" or words to that effect and is offered a small passenger car. He calls the "national telecommunications company" and relays this to them, and is promised that they'll "look into it," but after almost one month the truck is still not fixed and he's still without a car that suits his specific medical needs.

What he does next is brilliant.

He calls both the "national telecommunications company" and the insurance company and tells them that unless he gets the pickup truck or SUV he's been asking for, he is going to go on YouTube and post a video detailing how both companies treated a disabled war veteran after making a modest request for a different vehicle in an accident that was not his fault.

One hour later, the phone rings. It's...you guessed it...the rental car company. "We have an SUV for you, sir."

What's the message here? Social media, with the power of a few keystrokes or a smartphone video camera, can be a real equalizer when you're working your way through an endless maze of red tape, rigid "policies and procedures," and folks who may not be inclined to care about your plight or help you. I'm not suggesting that hopping online and posting a video or scathing comments is the answer to every corporate dead end you run into. You have to pick and choose your battles, and you have to be smart about it. You could easily cross the line and get yourself in a legal mess if you're not careful (you might want to brush up on your state's defamation and libel laws before turning on any video camera).

It used to be that you wrote a scathing letter and that was about it. Corporate America has always had quite a few weapons at its disposal, some legit and some sketchy, to deal with complaints. But with the advent of Twitter, Facebook, and numerous consumer complaint websites, one thing scares the hell out of them, and it's something they can't really control at the home office: VIRAL COMPLAINTS.

Thanks to social media, sometimes the little guys and gals can occasionally claim "scoreboard" too.

What Happens To Your Ohio Auto Claim If You Are Partially At Fault In The Crash?

"The adjuster claims I am partially at fault in the accident and he won't offer me full value on my (car)(injury claim)." I occasionally hear this when clients call me after hanging up the phone with the adjuster.

WHAT IS CONRTIBUTORY NEGLIGENCE AND WHY DOES IT MATTER?

"Contributory" or "comparative" negligence in Ohio are terms that mean the same thing: that you contributed to the collision due to your own negligence. Typical scenario: someone ran a stop sign and clobbered you and there is some evidence to suggest that you may have been speeding (more about that below). Some simple examples will help explain this concept and how it affects your claim.

Let's assume your $10,000 car was totalled in an accident and you were 20% at fault in the collision. In Ohio, the insurance company for the driver who was 80% responsible would owe you only $8,000 ( the value of your $10,000 car minus your 20% fault in the collision). If you and the other driver were deemed 50% responsible, the insurer for the other driver would owe you $5,000.

But if you were deemed 51% at fault, the insurer for the other driver would owe you nothing under Ohio law. Bottom line: your claim can be reduced by the percentage portion of your own contributory negligence, and it can be eliminated altogether if your negligence exceeds 50%.

THE IMPORTANCE OF COLLISION COVERAGE WITH YOUR OWN INSURANCE COMPANY

Because of Ohio's comparative negligence laws, it behooves you to carry collision insurance with your own insurance company. The reason is simple: IT'S NO FAULT COVERAGE AND NOT SUBJECT TO "COMPARATIVE" NEGLIGENCE!! So, in that 80/20% collision I referred to above (where you were 20% negligent), you can make a claim against your own insurance's collision coverage for the entire value of your $10,000 car. They'll pay you 10K, and get back 8K from the at fault party's insurance company (this is known as subrogation).

But if you don't have collision coverage, you are at the mercy of the 80% at fault driver's insurance company's argument that they only owe you $8,000 on your totalled car.

COMPARATIVE NEGLIGENCE CAN ALSO REDUCE THE VALUE OF YOUR PERSONAL INJURY CLAIM

The same rules apply to your personal injury claim in Ohio. How are these percentages determined? It can be as arbitrary and unscientific as an adjuster stating "we believe your client was 25% negligent for not wearing his seatbelt." This is not necessarily true under Ohio law as there are many exceptions to this rule, but it doesn't stop an insurance company from arguing it to an injured person "going it alone" without an attorney who is unaware of the limitations of R.C. 4513.263(F)(2)--or worse yet a clueless attorney representing an injured client who is unaware of this law.

Another common tactic is to claim that the injured person was speeding and was therefore contributorily negligent. In many situations, speed has no direct bearing on the cause of a collision. Example: you're going 58 mph in a 55 mph zone and someone blows a red light and T-bones you. That collision would have happened if you were going 55 or 57 or 58 mph, so the fact that you were 3 miles over the limit is irrelevant.

But none of this stops insurance companies from occasionally making these arguments in an effort to save a few thousand bucks. The key is to know how to smoke out any suspect contributory negligence arguments from the occasional legitimate ones.

Chiropractors Calling After An Auto Accident--Avoid The Machine

Machines can be dangerous. If you've been in an auto accident, you'll soon be introduced to a machine of sorts.

Within a day or two of a crash, the phone rings. It's usually from some innocently sounding "help center" or "injury hot line." They get your name from accident reports, which are public records. Many times these calls are from out of state phone numbers. Why, you ask? Because many states prohibit chiropractors (and attorneys) from calling car crash victims directly (hence the out of state "wellness center" to get around this "technicality").

The "pitch" takes various forms:

"The insurance company wanted me to check and see if you were hurt."

"I'm calling to check on your injuries" without identifying who they are. If pressed, they identify some "help" or "wellness" center.

If you deny being hurt in the collision, a standard scripted response might be "we need to have that medically documented and we can refer you to a provider in your area for a free exam."

This happened to a client recently. He responded to such a call and took his son in with him (both were involved in the accident). First initial visit: over $500 for each of them due to countless x-rays and other "modalities." Suspicious, he left that office, called me, and eventually went to his family doctor and got hooked up with a reputable chiropractor of his choosing (there are many out there, by the way).

But before he abandonned the previous chiropractor's office, he signed a paper agreeing that any settlement money is now the chiropractor's property to the extent of the outstanding bill.

And, the fired chiropractor is now refusing to turn over all the x-ray reports to the new chiropractor.

Look, insurance companies know all about these business practices and scrutinize the hell out of them and the attorneys who routinely "pop up" time and time again with the same chiropractic office on countless auto accident claims.

In this maze of confusion, here's a big clue as to what to do after an accident. If they're coming after you within just a few days after an accident, as opposed to you doing your own homework, it's a huge red flag. Avoid the callers from help centers and the fancy DVD's and slick mail brochures that practically tilt your mailbox. Otherwise, you're about to step into a well orchestrated, sophisticated machine that I referred to above. In my opinion, it's a machine that was not designed and speced on what's in your best interests.

Medical Malpractice Tort Reform Opponents Make For Strange Bedfellows

Congress is currently debating (again, for the umpteenth time) a bill that would "federalize" medical malpractice law and impose a one size fits all cap of $250,000 for patients who are injured or maimed due to a physician's or hospital's negligence. We trial lawyers have always opposed caps because they shred the 7th Amendment of The U.S. Constitution's right to trial by jury by stripping the jury's right to determine malpractice victims' damages and losses on a case by case basis. What's more, they violate an injured patient's right to due process of law under the 14th Amendment.

But these stalwarts of The Constitution are mere "technicalities" for most Republicans pushing for the bill at the bidding of the medical and insurance industry and The Chamber Of Commerce (most Democrats oppose it). These pols and their lobbying groups apparently liken The Constitution to a trip to the buffet, where they are free to "pick" the constitutional entrees they like, i.e. the 2nd Amendment right to bear arms (think steak or prime rib) and bypass some of those nasty side dishes like trial by jury and due process (think lima beans, or the cottage cheese at the salad station that you discover was inadvertantly infused with purple beet juice--ick).

That's why it was suprising and somewhat refreshing to learn that many conservatives are vehemently opposing this legislation. Who might you ask? No other than many Tea Party groups and The Heritage Foundation.

This from The Heritage Foundation:

The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5's reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims.

And this from the Tea Party Nation founder Judson Phillips:

The 10th Amendment means what it says. It is not a campaign slogan that we throw out when it is convenient and ignore the rest of the time. The 10th Amendment is one of the best defenses we have against tyranny.

We supported Republicans in 2010 because we believed them. We did not elect them because we thought they were hypocrites.

We in the Tea Party do not insist in ideological purity but we insist that the candidates we support, support the Constitution. That means all of it.

Not just the parts we find convenient.

Almost three years ago I argued that any attempt to nationalize medical malpractice laws not only wouldn't lower health care costs, but was blatant socialism.

I'm pretty sure that socialism and "a la carte constitutionalism" are ideas these conservative groups could probably relate to. They deserve credit for pointing out the incongruity of the mixed message of rejecting ObamaCare and "federalizing" malpractice laws at the same time.

Unnecessary Prostate Removal Surgery Proves The Folly Of "Evidence Based Medicine" Malpractice Immunity

"Evidence based medicine" is the newest shiny object on the mantle of the medical/insurance industry's never ending lobbying effort to eventually kill all medical malpractice lawsuits in this country. The premise: if doctors follow recognized guidelines or protocols in treating a patient, they should be immune from a lawsuit if the patient suffers medical harm.

Like other tort reform buzzwords such as "defensive medicine," it passes the "bumper sticker worthy" test, meaning it is overly simplistic and can be repeated over and over for maximum effect with an unsuspecting public and friendly lawmakers. But just how does "evidence based medicine immunity" square with the poor guy who had cancer surgery to remove his prostate when it turned out he didn't have cancer after all because his biopsy results got switched with another patient's?

This case was so secretive that the patient's name, the clinic, the lab, the doctors, and even the venue (the location where the malpractice and lawsuit took place) were confidential. But here's what happened to poor "George" as we'll call him.

After having a biopsy at a clinic to confirm or rule out prostate cancer, George's sample was sent to a pathology lab. Here's what happened after that:

The lab then determined the patient had prostate cancer and the patient underwent a robotic prostatectomy. But a sample taken from him after surgery showed he had no cancer at all. It was discovered that the original tissue sample had been switched with that of another patient who thought he was cancer-free. Exactly how the switch took place, however, was never cleared up.

After he sued both the clinic and the lab for wrongfully removing his prostate, things got more interesting in the lawsuit:

...both the clinic and the lab denied responsibility for the error. A nurse at the clinic insisted she labeled the sample correctly and followed protocol to make sure the requisition form matched the specimen. The pathologist at the lab reported matching the name on the requisition form with the name on the specimen, and lab technicians and pathologists followed all protocols during analysis.

Therein lies the problem with an "evidence based medicine" defense. How can everybody in the medical chain be following all protocols and this poor guy has unnecessary surgery for a non-cancerous prostate gland that's been removed as a result?

Evidence based medicine isn't so black and white after all when real world medical errors like this happen. At the end of the day, "best practices" and "protocols" are nothing more than aspirational pieces of paper. They're not worth squat if the team can't execute the playbook, and it's even worse when medical providers swear under oath that they followed the playbook, even in the face of an obvious medical mistake proving otherwise.

What Does "100/300,000" Auto Coverage Mean?

Not what you think it probably means. In fact, it is kind of misleading.

1. 100/300 Liability Coverage

This means your policy will pay up to $100,000 to ANY ONE PERSON who you injure in a collision that is your fault. If you seriously injure that person and he or she has a claim for injuries greater than $100,000 (say $300,000 for example), your liability insurance coverage will only pay $100,000. You're on the hook out of your pocketbook and assets for the remaining $200,000. So much for the "300" part. Your policy looks a bit thin now.

When does the "$300,000" part kick in? If you negligently injure more than one person in the same car accident. Example: your driving negligence injures 3 occupants. Assume that:

Occupant No 1 has a claim for $300,000;

Occupant No. 2 has a claim for $100,000;

Occupant No. 3 has a claim for $50,000


Result? The most your insurance company will pay TOTAL is $300,000. Occupant No 1 will probably not get all $300,000, and as a result, occupants 2 and 3 may not receive the total value of their claims either. They may all have to share "pro rata" or proportionally in the division of the $300,000 total proceeds available.
Again, so much for your policy protecting you. Your personal assets are exposed in this example too since the total of all occupants' claims ($450,000) exceeds your liability insurance limits by $150,000.

2. 100/300 Uninsured and Underinsured (UM/UIM) Motorists' Coverage

This is the MOST IMPORTANT PART OF YOUR INSURANCE POLICY. Why? Because it protects YOU AND YOUR FAMILY if an uninsured driver (he's got no insurance) or an underinsured driver (he's got minimal or low liability limits) creams you in a crash. Yet, the same "sleight of hand" rules apply.

The $100,000 portion of your UM/UIM is the most your insurance company will pay to any one person insured under your policy. If you're injured by an uninsured drunk driver and have a claim worth $200,000, your insurance company owes you $100,000. By purchasing this coverage, you only get %50 of what your claim is worth.

The $300,000 portion of your coverage? Your getting the picture here, right? You got it: it's the most your company will pay no matter how many family members are injured. If some underinsured driver goes left of center and seriously injures all four members of your family, the most they will pay is $300,000 total, and no more than $100,000 to any individual family member.

When this coverage is fully explained, it's easy to see why "100/300" coverage is so lousy. Yet, we continue to see this coverage over and over, whether it's the negligent driver who injures our clients, or our clients with their own policies.

Although "100/300" coverage is fairly common, it has become outdated like the mullet, untied high top basketball shoes, Lover Boy (which I never listened to by the way) and Members Only jackets (I confess to briefly owning one of these). In any serious crash, a standard $100,000 recovery can be quickly eaten away your health insurance company's "subrogation" rights. If your health insurance company paid $70,000 for your medical bills, in some instances it can get every penny back.

Unfortunately, most agents don't realize this when they convince you to buy a "standard" 100/300 policy. And you don't realize any of this stuff until it's too late.

Hey insurance agents: 1982 is calling. It wants its "100/300" policy back.

Sugarland Lawyers: You Fans Assumed The Risk Of Injury So It's Your Fault

Nice to know that if you go to a concert and the stage collapses it's your fault as a fan, eh? This, according to lawyers for the band Sugarland, is one of their defenses in an official answer to numerous lawsuits filed against the band and other companies arising out of the August 13, 2011 tragedy that killed seven and injured fifty eight:

Calling the powerful winds that toppled the stage on Aug. 13 an "act of God," Sugarland's attorneys said fair officials and Mid-America Sound Corp. were responsible for the stage setup, and that the fans voluntarily assumed risk by attending the show.

Some or all of the plaintiffs' claimed injuries resulted from their own fault," according to the response. Sugarland attorney James H. Milstone would not elaborate Tuesday on whether that statement included those killed as well as the injured

.

This "defense" is known as "assumption of the risk." It is usually reserved for activities that are by nature dangerous or hazardous, like skydiving, ziplining, parasailing--you get the picture. And even then, sometimes the waiver you sign informing you that you are assuming the risk of injury does not necessarily excuse the host from liability if negligent in some manner.

That aside, I am reasonably sure that watching a concert in a pavillion at a state fair (with the possible exception of the mosh pit) is not by nature a hazardous activity where you "assume the risk" of a tragedy like this.

That is, unless, you're an insurance company lawyer, where every "kitchen sink" legal defense is thrown into the mix, no matter how stupid or inane. And this defense is inane. It will go nowhere and every lawyer involved in this ligigation knows it.

Ohio personal injury attorneys like me see this defense raised every day in run of the mill cases, even in clear liability situations, like when our client is rear ended ("the plaintiff assumed the risk of all injuries in the collision"). They allege it, and it dies on the vine without so much as a whimper. No big deal.

But I've never understood why insurance companies make allegations like this in high publicity lawsuits like these ones. All it does is make a bad PR situation worse. Now the band Sugarland has to respond to this issue when my guess is that they probably knew nothing of what the official lawsuit "defenses" would be. It's like asking for more egg on your face, and I can also guess it's not helping innocent victims of this tragedy heal.

Ohio Supreme Court Decision Protects Drunk Drivers And Other Miscreants In Lawsuits

The world is full of miscreants. Hopefully most of us will not cross their paths, but it's a long (and growing) list: pharmaceutical companies and product manufacturers who market and sell dangerous drugs and products and who are slow to recall them even though they know they are harmful. Nursing homes that injure or kill elderly patients and then alter records in an effort to bury their mistakes. Trucking companies who hire incompetent drivers with extensive criminal or accident histories in order to put a body in an idle truck. More commonly, every day drunk, impaired, and distracted drivers maim or kill innocent Ohioans.

Every one of these bad actors and their insurance companies were just cut a huge break by our Ohio Supreme Court with a recent decision. This week, The Ohio Supreme Court upheld a "tort reform" law passed by The Ohio Legislature in 2005 that prohibits introducing evidence of a defendant's willful or bad conduct during the initial phase of a lawsuit. How does this decision work in the real world and why should you care?

Imagine being creamed by a drunk driver. He puts you in the hospital, and you're left with long term injuries, surgeries, therapy lasting months or years, lost wages, and a life that is now not normal. After getting jerked around for months on your own by his insurance company, they make you an insulting offer.

You hire a competent personal injury lawyer who files a lawsuit on your behalf. The insurance company lawyer files an answer denying that their driver was drunk. Time and money is spent in litigation proving that the driver was in fact drunk. The insurance company continues to take a hard line stand, and the case goes to trial.

On the day of trial, the insurance company lawyer admits the driver was at fault but makes no mention of the fact that his client was drunk. Common sense, logic, and simple fairness would dictate that you can introduce evidence of the driver's intoxication for the jury's consideration in determining your damages, right?

Wrong. Not in Ohio. Not any more. According to this recent decision, your trial is now chopped up or "bifurcated" into two parts. In the first phase, the jury hears no evidence of the driver's intoxication. For all the jury knows, the driver was a responsible citizen heading home from church or the grocery store. They're not allowed to hear that the driver had consumed 8 beers and had bought another 12 pack when he left the store. And they're not shown the police videotape of him staggering and falling down on the berm of the road, or the toxicology report showing that he was two times over the legal limit.

After the jury determines your damages in the now sterile and non-transparent initial phase of the trial, only then can you introduce evidence of his intoxication, in order to determine "punitive" damages against him.

This is a HUGE victory for insurance companies who pushed for this law, as I wrote about here. Even more egregious, it gives a big break to drunk drivers, who can now sit at trial smugly, knowing that their awful choice to drive drunk will never see the light of day for most of the trial.

Imagine being a drunk driving victim and sitting in trial listening to an untrue and sterile version of the facts of your case. It's a slap in the face to all drunk driving victims, and it's no wonder I hear people frequently rail that our justice system makes no sense.

And this law and decision makes no sense. The Supreme Court passed on an opportunity to strike the law as unconstitutional as in conflict with Pre-2005 Rules Of Procedure that gave judges discretion to simply allow one trial and let all the evidence in at once, including evidence of intoxication.

Instead, The Supreme Court rubber stamped the law and essentially sent the message that "whatever The Ohio Legislature passes is fine with us." So much for The Constitution. Did they intend to protect these bad actors with this ruling? No. But this is the practical reality of their decision.

So how's all this "tort reform" working for you now that our system has seen fit to give a legal break to drunk drivers, medical institutions that alter records, a lot of other bad actors, and their insurance companies' bottom lines? Sorry but this one is hard to swallow. So much for fairness and a level playing field when you walk into court.

In the near future, I'll be getting a call from another drunk driving victim. Perhaps someone who was in favor of "tort reform" and "cracking down on all those frivolous lawsuits." And then I will try to explain this gem to them. And the reaction will be typical: "Well, that's not fair. My life has been changed by a drunk driver and these laws give a break to the drunk who hit me? How is that justice?"

My response is always the same. "It's not, but this is what you voted for." You know the old saying "Be careful what you wish for--you might just get it?" Well, you just got it.

The Insurance Company's New "Doctor" Denying Payment Of Your Auto Accident Medical Bills

My client called, exasperated, and told me: "my auto insurance company called and told me they will not pay any of my auto accident bills after six weeks." Mind you, this was no fender bender. This was a broadside collision. The client was hit on the driver's side door and dragged through an intersection. The client had purchased $5000 of medical payments coverage with his "full coverage" auto policy and had paid a separate premium for that coverage.

But it was no doctor on the phone telling the client he should be "all better" after 6 weeks. It was an adjuster. She was not attempting to cut off the payment of bills to be mean or spiteful. Rather, it was simply their "company policy."

How can an insurance company magically devine that anyone in a crash who hasn't broken any bones should be fully recovered after 6 weeks? Simple. Spend millions on sophisticated software programs that input certain diagnosis "codes" and feed them into the fancy software algorithims. Voila. Out comes "data" that tells the adjuster how long their own insured should be treating with their medical providers for their injuries.

Why did many auto insurance companies sign on for sophisticated medical auditing software? Think $$$$. By creating and imposing artificial limits on medical payments coverage, they can save $350 or $700 or $1129 or whatever per claim. Now multiply that by millions of claims for medical payments and you get the point.

Never mind the fact that each person is different when it comes to recovering from muscle, ligament, tendon, and other "soft tissue" injuries. One person may not need even four weeks of treatment or therapy. Others, because of their health history, may need 10 or 12 or 14 weeks of treatment. One would think that someone--oh, I don't know, perhaps a PHYSICIAN comes to mind--should have a say so, maybe, in what treatment is necessary for that person's recovery?

That's what customarily happened before all the algorithims. Welcome to the new normal. Thankfully, many of these same companies will back down from their "policies" and re-evaluate their original position, but not without a fight from me and a threat to sue them for insurance "bad faith" in unreasonably delaying or denying payment of my client's bills.

They should give their computer program a name. Allstate's is called Colussus. I would propose Dr. Al. Al Gorithim.

Small Business Owners And Consumers: Beware Of The "Self Renewing" Contract

Mark Twain once said that "a cat, having sat upon a hot stove lid, will not sit upon a hot stove lid again. But he won't sit upon a cold stove lid, either." A "self renewing" contract is like the proverbial hot stove waiting to burn you when you sign up for any service contract, whether you're a consumer or a small business owner.

Definition: a contract provision that AUTOMATICALLY renews for another term unless you give notice (usually written) weeks or even months in advance. It's one of the most sneaky and one sided provisions you'll see in a standard contract, usually buried in the middle of the fine print.

Here's an example of a "pants on fire" self-renewing contract. Say you own a small restaurant or body shop. You sign a uniform rental contract with a large rental company for a two year term. Unbeknownst to you, the contract has a renewal clause for a second term of 48 months, if you do not give written notice 6 months prior to end of first term (or 18 months)! By not knowing about this little dirty bomb in your contract, or even if you're aware of it but forget to calendar it and send a timely notice of cancellation, you might be without recourse. Result: you just unwittingly "signed up" for another two year term. At a minumum, you'll have to "lawyer up" to see if the contract is enforceable (we welcome the work, of course, but the whole point of this post is to teach you how to avoid us if you can!).

Imagine having to pay for a service you no longer want for 2 more years because of this nonsense. And it is nonsense for businesses and service providers to sneak these provisions into a contract and hope you are ignorant or asleep. Unfortunately, they are becoming more prevalent, even with standard consumer or residential contracts like a home security service, for example. I would seriously consider not doing business with any group that includes such a provision in their contract or insists on enforcing it if you object to it before signing.

This kind of crap is becoming the norm. Be on the watch for it. In this current climate of these clauses, and even one sided arbitration clauses buried in form contracts," now more than ever the burden is being shifted to you, the consumer, to presume that the stove lid is hot.

Some Good Reasons To NEVER Sign Nursing Home Papers For A Loved One At The Nursing Home

A colleague recently reported a situation where a family member (a son) signed numerous papers at the nursing home in order to begin the process of admitting his mother to the home. The son had a "power of attorney" (POA) to sign the admission papers on his mother's behalf.

Buried in the stack of "standard paperwork" was a "guarantee of payment" for his Mom's nursing home bill. The problem: he signed so many papers that day that he failed to sign it as POA for his mom. Instead, he inadvertantly signed it in his own name. You can guess what happens from here: Mom dies, there is an outstanding nursing home bill, and now the nursing home is threatening to sue him unless he pays the outstanding balance for his Mom's care!!

WHAT PAPERS ARE YOU EXPECTED TO SIGN FOR ADMISSION TO A NURSING HOME OR ASSISTED LIVING CENTER?

Let's set aside the legalities of enforcing this "guarantee of payment" for the moment. The real problem here is the dizzying amount of paperwork that nursing homes and assisted living centers require the resident or legal representative to sign before admission. Some of it is standard, but there are many other documents that are one sided, and even strip the resident of important legal rights.

Some of the standard paperwork includes:

Medicare Secondary Payor Questionnaires;

HIPAA Privacy Notices;

Resident Handbook;

Facility Admission Agreement; and

Numerous other financial papers and documents regarding payment.

In a recent Ohio case I litigated, the "Resident's Handbook" was twenty pages long, and the "Facility Admission Agreement" was a whopping fifty pages! Now let's put all this paperwork into context. Mom or Dad are going to the nursing home for a reason: they're either sick or frail and traditional treatment or livng at home is no longer an option. The decision to place a loved one in a home or center can be an emotionally wrenching one. Frequently, time is of the essence because of arbitrary hospital discharge rules or the limited availibility of nursing home beds.

So in the rush to get Mom or Dad in a nursing home (if you're even lucky enough to have the luxury to investigate more than one home), what exactly are you signing? In the case I handled, buried in the "Facility Admission Agreement was a "Limitation Of Liability Agreement." In this "agreement," the resident agreed to give up the right to sue in court if injured, and also agreed to waive the right to a jury trial. Also included was a mandatory arbitration agreement, and here's the real kicker: the resident agreed to a compensation cap of $100,000 for any injuries, and a waiver of any potential punitive damages.

The resident in this case was injured by nurses aides who eventually were charged with criminal patient neglect. We ignored the "agreement" and sued anyway and were able to resolve the case (note, however, that The Ohio Supreme Court has upheld these one sided "agreements" under certain circumstances).

The family member who signed all these papers gave a familiar answer:

"We were asked to sign all these papers and nobody went over them with us.

"We were told we had to sign them right away so Dad could be admitted."

"They had me sign so many papers I have no idea what I signed."

This is frequently the "business model" nursing homes employ to get residents into beds AND chop down the resident's legal rights. It is a model that takes advantage of vulnerable families making painful and often sad decisions.

PROTECTING YOUR LOVED ONE (AND POSSIBLY YOURSELF)IN THE MAZE OF PAPERWORK

There is one sure way to protect yourself from all this mess. Ask the facility for some time to take the paperwork home and digest all the information. Twenty four to forty eight hours time to read paperwork, often in excess of a hundred pages, without the pressure of "sign this as soon as possible"--is a reasonable request. After all, if the nursing home/assisted living center is above board, what should they have to hide? If they won't allow this simple request, it may be a sign of things to come: that they value their "business model" above all else--including patient care.

Regarding the "guarantee of payment" the son signed, it is of doubtful validity in Ohio, and I do not think the nursing home will be able to enforce it. But he is now probably looking at hiring an attorney to defend him in a lawsuit if the nursing home sues him for the debt. All the more reason to proceed methodically and take the time to know what your signing...or giving away.

A Great Trial Argument To Make When They Attack Your "Non-Academic" Expert

Occasionally you run across an expert who has tons of real world experience and technical experience but a thin CV (a cirriculum vitae or "resume") in terms of educational experience. If the other side hires an "academic" expert with a CV the size of a big city phone book, you often face the argument at trial that your expert is deficient and has less credibility because he or she doesn't have the necessary "pedigree" to offer expert opinions.

That's why an obituary buried in the back of our local paper this week caught my eye. Lowell Randall died early this week at the age of 96. Who was Lowell Randall? Only a premier rocket scientist who was part of a team who developed rocket engines that paved the way for spaceflight that eventually sent U.S. astronauts to the moon. He later led a team of scientists that developed The Titan I intercontinental ballistic missile.

Lowell Randall never had any formal education beyond high school. Amazing. It just goes to show that lack of a formal education is not a barrier to expertise or knowledge in any field.

So the next time you're faced with the argument that your expert is inferior to the other side's flashy expert with a thick CV and scads of technical publications and achievements, tell the jury about the story of Lowell Randall. Sometimes dirty hands and a dust covered field jacket are just as valuable in terms of knowledge as someone who pontificates from the comfort and distance of the world of academia.

Why All Patients Should Request Their Medical Records

NPR recently ran an an informative piece on why patients should know what's in their medical records, and some of the blowback from the medical profession on this issue.

As a personal injury attorney one of our standard practices in any auto or other accident claim is to request our clients' complete medical chart from their primary care physician (PCP), since many injured clients frequently seek treatment from their PCP after a collision (a good idea, by the way, unless there is an immediate need to see a specialist like an orthopaedic physician). Moreover, we also need to know whether there was any history of any injuries or treatments to the body parts injured in the crash, so the PCP's records are a good place to start. As such, we read volumes of medical records.

There are two huge reasons why you need to request a complete copy of your PCP's office records.

PROTECTING YOURSELF FROM UNSCRUPULOUS HEALTH/LIFE/DIABILITY INSURANCE COMPANIES WHO ARE LOOKING FOR ANY REASON TO CANCEL YOU (AND YOUR POLICY) LIKE A STAMP...

Have you ever filled out an application for health, life, or disability insurance and attempted to answer endless questions about doctors you've seen and conditions you've had? There's a reason why they're so detailed. Your application is a possible club for them to use to cancel your policy if you get seriously ill and turn in hundreds of thousands of medical bills. It's called "recission," and insurance companies have engaged in a recent trend of hiring recission teams that scour your application for inconsistencies or ommissions, and then claim that you "misrepresented" your application. Result? Policy cancelled. And time to call an attorney...

According to Wendell Potter, former director of corporate communications for CIGNA health insurance and author of the book "Deadly Spin,"a 2006 Congressional investigation found 3 large insurers retroactively nixed nearly 20,000 policies over a 5-year period.

Life and disability insurance companies are not immune from these shady tactics either. You can read about them here.

Here is one way to blunt these tactics and bulletproof yourself against a possible recission/cancellation claim. The next time you have to fill out an application for insurance, get a copy of your doctor's office chart. Not only will you have a handy reference for all of your past medical history you're required to list on the application, consider attaching your records to it! I did this recently, along with a typewritten statement that said "because I cannot remember every medical visit/treatment I've had over the last five years, I am attaching a complete copy of my family doctor's office chart." With that degree of thoroughness, how can any insurance company argue that you "failed to disclose material medical information?" Problem solved.

YOU LEARN ABOUT YOUR DOCTOR...

Every time I read a doctor's office chart I learn something about that doctor. Many amaze me with their thoroughness and attention to detail and a genuine concern for their patients. It shows in the chart. Many times after reviewing my clients' medical chart I will call them and let them know how detailed the chart and how thorough their doctor is.

The opposite is also true as well. Some charts include all sorts of extraneous information and even the doctor's own personal opinions and musings about their patient, or their injury claim. I've also personally seen sloppy and even inaccurate or incorrect information contained in many charts. When clients discover this, they are often hurt or angry that their doctor would include such information in their chart.

Either way, you learn quite a bit about your doctor and the "on paper" state of your medical health when reading your own records. And one final point: if you discover inaccurate information, you have every right to confront your doctor and ask him or her to correct it.

After all, the chances are good that another set of eyes at a behometh insurance company will eventually be reading them. You might as well look at them first. After all, they're your records...

What Will Your 6 Minute Video Look Like?

One of the most difficult and heart wrenching parts of my job in representing families in wrongful death cases is watching the video compilation/tribute of the deceased person. We've all seen some form of these, as typically the funeral home will take selected family photos and put them to music on a DVD.

The irony of my task is that I'm trying to get to know a person I've never met and never will. And I have to know that person in order to convey what has been taken away from the family. After all, how can you represent a family for the loss of a loved one if you know little about the person who was taken away from them?

Personal contact with your clients is a must. Many times the best place to talk is not in the office, but in their home, where they can open up and share all the wonderful stories about their loved ones--what they enjoyed, made, constructed, or their favorite spot to relax or toil--essentially what made them "them." Often times the stories are wonderful and uplifting even if the tears flow while they're recounting them. It's on their terms and in their comfort zone this is exactly where these stories need to be shared.

But the video tribute always gets to me. It's a series of snapshots in happier times where you're given a small window to peek into the lives of others. You see the progression of a family from childhood to youth to marriage and children and beyond. You feel the enormity of the family's loss as best you can as an outsider, and it is a huge reminder of the enormity of the task placed squarely on your shoulders as their attorney.

And, I have to confess, it is a stark reminder of my mortality. A lifetime reduced to a six minute presentation. It often makes me wonder: what will my six minutes look like? What will any of ours look like? And then it's back to work, and the grind of more immediate and weighty matters, the things you can't compile in a video. Things like justice and accountability.

One Good "Legal" Reason For Not Eating At Chik-Fil-A

Nobody likes bullies, whatever form they come in. Chik-Fil-A has apparently unleashed its legal bullies from the coop and is threatening a Vermont artist for selling "Eat More Kale" T-shirts and apparel. Their legal theory? The "Eat More Kale" slogan infringes on its "Eat More Chikin" and is in violation of trademark laws. According to a recent news account:

Muller-Moore, who describes himself as a folk artist who earns a living working as a foster parent for an adult with special needs, said he started using the phrase "eat more kale" in 2000. A farmer friend who grows kale, a leafy vegetable that grows well in Vermont and is known for its nutritional value, asked Muller-Moore to make three T-shirts containing the phrase for his family for $10 each.

A few weeks later, the friend told Muller-Moore that people kept asking for the shirts. The phrase helped him get his silkscreen business going, which he later expanded through the Internet. Now, he prints "eat more kale" on hooded sweatshirts too. And he has the words printed on bumper stickers that are common throughout central Vermont.

Chick fil-A lawyers have threatened to sue him if he does not stop printing the shirts and have demanded that he turn over his website to them. This is yet another example of of corporate legal bullying at a time when the corporate world is lobbying endlessly for "legal reform" and limiting consumer and injury lawsuits against them.

Tastes like hypocrisy rather than chicken to me. Don't these companies have anything to do rather than go after a small time artist promoting green leafy vegetables? I have my own phrase that I will donate to Chik Fil A that they can trademark free of charge. "Uz Less Lwyerz...And Fry More Chikin."

"Roaches On A Plane" Lawsuit Is Raunchy.

"Snakes On A Plane"--move over. We have a new plot for an action thriller thanks to a Charlotte attorney who's launched a lawsuit against an airline because some cockroaches were roaming around in the plane during a short flight. He's suing for damages in excess of $100,000 for "emotional distress" and other associated psychological ills.

As they say on ESPN, "C'mon, man!" Really? As a personal injury attorney, I want to say thanks to this colleague. Thanks for adding to the list of goofball lawsuits that make it into the media, and feed into all the negative stereotypes about our legal system. You know, the ones people ask me about at a party or bring up when I am picking a jury during a trial where my client has LEGITIMATE injuries. It's funny how miscreants like drunk drivers can wallop people over and over again, I'll file a lawsuit, the claim is either settled fairly or tried to a jury, and the media never reports it. That's not newsworthy. But a $100,000+ lawsuit THAT WILL GO NOWHERE is now plastered all over the media.

I'm reasonably sure "roaches on a plane" will make the list as a topic of discussion the next time I'm in court. And thanks too for giving The Chamber Of Commerce's militant "Institute For Legal Reform" more fodder/propaganda for its mission: to wipe out or limit YOUR INDIVIDUAL right to access the courts, unless you're a corporation, and then you can sue the pants off of anyone without restriction.

If this lawsuit even survives a motion to dismiss, if I were a judge I would award damages of a few extra bags of complimentary peanuts for his next flight. He could use them as a repellent. After all, cockroaches don't like peanuts. I've heard that if they eat them they will blow up and die.

OK, maybe that's an urban myth, like Juicy Fruit gum and moles and Alka Seltzer and seagulls. Add this lawsuit to the list of "urban myths" about our legal system. No matter what The Chamber of Commerce says in their latest "e-mail alerts," these cases are the exception, not the rule.

An Overlooked Element Of Damages/Losses In Personal Injury Claims

The accident scenario is a typical one: the client is creamed in a collision. After the initial bevy of acute care treatment in the hospital or ER, the client then begins the long, arduous journey of a series of diagnostic tests, stints of physical therapy, surgery, all the post surgery rehab (usually more therapy), and follow up appointments with their medical provider of choice.

What we as personal injury attorneys frequently overlook is all the time and effort it takes for clients to schedule around and attend all the appointments with therapists, etc. Quite simply, it is a huge hassle just to make all these appointments. And expensive too. With the cost of gas at over $3 a gallon, it all adds up.

Recently we calculated all the miles a client (who was broadsided by a drunk driver) travelled for numerous trips to therapy, doctors appointments, rehab after surgery, etc. It was staggering--over 1,000 miles of local driving. A few minutes on Google Maps makes this task simple and easy.

Do insurance companies recognize these losses in settlement negotiations? Usually not. If they do recognize them, they typically don't reimburse these losses on a dollar for dollar basis.

But that's not a reason to forego claiming mileage and the cost of gas and other inconveniences during settlement negotiations. Where is the REAL value in pointing out all these losses? At trial. Even the most skeptical juries can appreciate these losses, even if they struggle with how much an auto accident victim's "pain and suffering" is worth. In fact, this evidence can actually help a jury when calculating a pain and suffering amount when deliberating on a verdict.

After all, it's hard enough to deal with physical pain and disability associated with an auto or trucing collision. It's even harder when you have to make arrangements to leave work early, get in your car, show up early for your appointment, go through the rigors of physical therapy, and drive home and deal with the ordinary aspects of life like preparing meals, laundry, helping the kids with homework, etc.

Sometimes taking a step back and looking at all the ripple effects of an injury can help us see the bigger wave or picture in terms of our client's damages and everything they've gone through. The old adage of "walking a mile in the other person's shoes" applies here...

Surgical Fires In The Operating Room

Today while working out at the local YMCA I saw a report on The Today Show about the problem of patients catching fire during routine operations. The crowd gathering around the TV was shocked to learn that this can happen. Actually, it has been occurring for quite some time, as I have written about here and here.

It even happens at world renowned institutions like The Cleveland Clinic. In fact, it is estimated that 500-600 surgical fires are reported every year. Since not all states are required to report surgical fires, the number might be higher.

Every hospital should have training protocols in place to educate the surgical team on how to prevent these fires, because they are absolutely preventable. So ask your surgeon if he or she has experienced any fires during surgery, and also ask about any training the staff has undergone. It's a reasonable question that any patient deserves an answer to before going under anesthesia...

What Auto Coverage Do You REALLY Have if You're Injured While Driving A Company Car?

If you are driving a company car, you may have NO uninsured or underinsured insurance coverage (known as "UM/UIM") to protect you and your family if you're involved in a serious crash. This can happen even if you're told by your employer that your company car has "full coverage." Here’s what can happen and what you need to know in order to avoid a “no coverage” gap.

The scenario: You were told by someone in your company that the company car has “full coverage.” Or, perhaps you simply assumed it. Months or years later, you are seriously injured in a crash by an uninsured motorist (no liability coverage) or an underinsured motorist (someone with low liability limits). You miss months or years of work, or worse yet can't return to your job because of your injuries.

You come to learn that your “full coverage” on the company car did not include uninsured/underinsured motorists coverage because your company declined the coverage (perfectly legal in Ohio and other states). Problem: nobody ever explained that to you before the crash...

If you were injured on the job, workers compensation laws MIGHT cover your bills and a portion of your lost wages. But what about compensation for the rest of your wages, and your permanent injuries? Worse yet, what if you weren't on the job at the time of the crash?

How do you avoid huge monetary losses and possibly bankruptcy over a collision that was not your fault while driving a car you were told had "full coverage?" There are basically two things you can do to find out whether your employer has purchased any UM/UIM coverage at all, or enough to protect you. First, ask your HR department or someone in charge of insurance matters: “Is there UM/UIM coverage on my car and what is the amount of coverage?” Ask to see a copy of the “Declarations Sheet” for your car. But what if you are not comfortable asking this for fear of “making waves?” There is still something you can do.

Ask your personal auto agent who insures your family vehicle(s) about purchasing “Drive Other Car” coverage. This coverage basically covers you for other autos that you drive that you do not own. You may ask: “Why doesn't MY auto insurance cover me when I drive another car?”

Welcome to the world of more fine print “exclusions” in your policy. Buried in your policy is probably a “non-covered auto” exclusion. It basically says that your auto policy does not cover you when you drive another vehicle you do not own when it is made “available for your regular use.” And if your company car is “made available for your regular use,” bingo – the exclusion applies, and you’ve now got no coverage.

Here's the beauty of asking your agent about purchasing “drive other car” coverage. He or she will be able to find out from your employer whether your company car has UM/UIM coverage as a means of determining whether you even need to purchase this coverage.

These simple steps will close this potential “no coverage” gap on your company car.

What To Do If "The Insurance Adjuster Is Coming To My House To Offer Me A Settlement."

Dallas, Texas Attorney Jeff Rasansky hit the nail on the head recently in his post about insurance companies' recent amped up tactics to immediately cash out auto accident victims' injury claims with "offers" of settlements within days of a crash.

This tactic is not limited to Texas and has infiltrated into Ohio for quite some time now. In fact, let me share a similar experience on an Ohio auto collision/personal injury case I am handling that proves this is becoming an all too familiar tactic.

A few moths ago, a client calls me. She is a mother of three children, including a nine month old child. She's taking her two children to elementary school, along with two neighbor kids and her nine month old child. She's rear ended at a high rate of speed while attempting to turn into the school lot. All the children are taken to the ER to be evaluated. She declines treatment because she's concerned about getting all the kids evaluated (imagine the chaos of having your three kids in the ER along with the neighbor kids).

The next day, an adjuster shows up at Mom's house and writes checks for $250 for each kid and her. She leaves some "releases" for Mom to sign, meaning that by accepting the checks and signing the releasee, the claim will be over and closed. She eventually cashes the checks, but does not sign the releases. In the meantime, she starts to develop neck and back pain and calls a chiropractor to get checked out.

She informs the adjuster the next that she's seeing a chiropractor to be evaluated. The adjuster informs her that her claim is over and therefore they will not honor or pay for any medical bills. Mom tells friendly adjuster that she did not even have a chance to be seen for her injuries in the ER and that she did not sign any release. Too bad, says the adjuster: claim over since Mom cashed the checks. Mom returns the checks and writes a letter to the adjuster indicating that she had no intention of closing out her claim. The letter is ignored.

After hiring me, I write the friendly adjuster and ask that the claim be re-opened. I'm told in no uncertain terms to pound salt. The next day, a lawsuit is filed. Eventually, I get a call from an attorney for the insurance company, informing me that the insurance company is now backing off and honoring the claim.

It took a lawsuit to expose and nullify this strong arm tactic. Here's the insurance company's playbook: get to auto accident victims as soon as possible, throw an immediate, small amount of money at these folks in a bad economy, and play the "you settled your claim" card if the person seeks medical treatment even a few days after the collision. This tactic is a well organized scheme to pray on folks who are vulnerable or innocently ignorant about how the claims process works.

So what's the solution here? Simple. Decline the friendly adjuster's invitation to come to the house and "talk" about your claim. You should tell them that if they want to send somebody to appraise your car, that's OK, but you should never discuss any potential personal injury claim with them immediately after the collision. It's simply not in your best interests to do so. Between these shenanigans and all the other "routine paperwork" thay may ask you to sign (like a blank medical authorization giving them a license to fish around in your medical history), you may well sign your rights away and be stuck down the road if you develop a medical problem down the road.

Bottom line: they are not coming to your house to be "fair" to you. They're coming to cash you out and cut off their potential losses and liability. That's all you really need to remember...

Read On If You Think You Have A "Full Coverage" Policy On Your Motorcycle Or Scooter

Client is T-boned at an intersection while on a scooter. Bad injuries--they usually are when scooter or motorcycle meets car. Ankle fracture and two shoulder surgeries for a total of 3 surgeries. Lots of physical therapy lasting well over a year and medical bills approaching $40,000.

The negligent driver who caused the collision? He had only $100,000 liability limits. Not nearly enough to compensate the injured person for all of her injuries. Before the crash, she was sold a "full coverage" policy that included $25,000 in Uninsured/Underinsured Motorists' (UM/UIM) coverage.

Under Ohio law, this policy provides NOT A PENNY of coverage for her. It is a totally useless policy because in order for her to collect a penny of coverage, she has to have more in UM/UIM coverage than the negligent driver had in liability coverage--in this case, more than $100,000. The result? She paid for $25,000 in coverage and gets nothing from her own insurance company. She is limited to the $100,000 liability limits under the negligent driver's policy.

The agent who sold this worthless policy has committed "agent malpractice" in my opinion. Why on earth would an agent sell her such a low policy amount on a scooter or motorcycle knowing that (1) she can't collect any money under her UM/UIM coverage unless she has more in UM/UIM coverage than the liability limits of the negligent driver; and (2) anyone operating a motorcycle or scooter who's on the receiving end of a collision with an automobile is probably going to sustain some serious injuries as a result?

None of this was explained to her when the agent "recommended" this policy. And, by the way, she has to repay her health insurance company out of her settlement for the $40,000 it shelled out for her hospital, surgery, and rehab bills.

Not a good deal at all. All of this could have been avoided if the agent had sold her a policy that included at least a minimum of $250,000 in UM/UIM coverage (I personally would recommend a minimum of $500,000 if not more). Here's the kicker: she probably could have bought $250,000 in coverage for about $100 more per year.

Unfortunately I've seen this scenario over and over and over again. So all of you motorcyclists and scooter riders, do yourself a favor: call your agent and increase your coverage. You'll be glad you did if some irresponsible motorist turns left in front of you or runs a red light...

Does Tort Reform Create Jobs?

For those unfamiliar, tort reform is politicians passing laws limiting your right to bring a lawsuit and limiting what you can recover due to someone else's negligence. Standing directly behind these politicians, like a hand on a shoulder, are special interest groups who "lobby" (I use that term lightly--think $$$$) for passage of these laws. The players? Liability, medical malpractice, and health insurance companies, medical groups, The Chamber of Commerce, and about 287 other well heeled (think $$$ again) groups. Their premise? Cutting down your individual rights is good for you, and good for all of us, because it creates jobs.

It's a simple mantra: less lawsuits means more jobs. Nice and "bumper stickery." The other day I found this link searching the "Internets" where the Governor of Mississippi is claiming that after tort reform measures passed there, 41,000 jobs were created. How he specifically tied this to passage of tort reform laws is unclear. It's like saying that Captain Crunch makes the sun shine because I ate it for breakfast three days in a row and then the sun came out, but let's take The Governor at his word and accept it as true.

Well who cares about Mississippi? What about Ohio? Let's review. In 2003, Ohio pols passed "medical malpractice reform" and now we have caps on damages ranging from $250-500,000 for people who win their case and prove in court they've been injured due to medical negligence (Note: there IS no cap for wrongful death medical claims because The Ohio Constitution forbids it).

Not to ignore the "lobbying" of other corporations who got in line after the 2003 reforms, in 2005 Ohio pols passed "general tort reform" for ALL types of Ohio personal injury claims. Those caps range from $250-350,000, with exceptions for certain catastrophic injuries.


We've had almost a decade now of a burlap sac of "legal reforms" in Ohio. And we're not alone with just our like minded Miss. friends. Over 32 states now have "caps" on damages that limit what those maimed and injured can recover in a lawsuit.

So where are all the Ohio jobs that were supposed to flood into our state after these reforms? Where are all the decreased health insurance premuims in Ohio? Where are the lowered health care costs and lower medical bills?

If the "tort reform means more jobs" premise is true, the economies of 32 states should be booming right now with an explosion of jobs and low unemployment rates, right?

How is this "let's trade your rights for jobs" premise working? Anyone? Pass the Captain Crunch please. It's getting cloudy here in The Buckeye State.....

Anatomy Of A Lawsuit (Part 2): The Investigation

“Do I have a case?” It’s a common question in any initial client meeting. The answer really depends on what happened to you, and this in turn will determine both the timing and extent of investigation needed to answer this question.

AUTO ACCIDENT CLAIMS

By and large, many auto accidents are straightforward. If you were rear ended or broadsided at an intersection, usually this is documented in a police report, the at fault driver is cited, and frequently that person’s insurance company will acknowledge responsibility for the collision (responsibility for all of your medical bills, lost wages and injuries is another matter—don’t expect the insurance company to roll over on those issues). These situations many times obviate the need to launch a detailed investigation. However, there are many exceptions to this rule.

SERIOUS AUTO AND TRUCK CRASHES/COLLISIONS

In these situations, many times it is a good idea to hire an accident reconstruction expert to review any forensic evidence such as skid and yaw marks left at the scene, any of the vehicles involved, or any other physical evidence. Occasionally, law enforcement accident reports miss or fail to document critical evidence, making it necessary to conduct a scene investigation with the accident reconstructionist, who can prepare a full scale diagram of the accident specifics.

Large truck collisions present especially unique concerns as I have written about here and here. Time is frequently of the essence and the trucking company must be put on immediate notice of a potential lawsuit in order to preserve a slew of internal documents that may shed light on how and why the collision occurred.

MEDICAL MALPRACTICE/NEGLIGENCE CLAIMS

The timing of any medical malpractice investigation depends on a whole host of factors, and there are many traps lurking here. The starting point of any medical malpractice investigation is obtaining the medical records in issue. However, It is not uncommon for a malpractice victim to still be in the throes of medical treatment weeks or months after the initial acts of malpractice. If records are requested while you are still receiving treatment from the physicians who “inherited” your treatment, they may get wind of your request, and this may impact your medical treatment (think “white coat of silence” and this will make more sense). Since your main goal is to get the best treatment you can, the last thing you want to do with a premature request for records is tip off your new physicians that you may be looking into a potential investigation of the doctor who may have committed malpractice.
On the other hand, since Ohio’s statute of limitations is so short (in many cases one year), there may be no choice but to request the records immediately due to time constraints. However, all these things must be balanced when any investigation is launched.

In other cases, particularly wrongful death cases, sadly many records are not complete until weeks after the incident. You should allow a reasonable amount of time to pass to ensure that the records are complete before you request them.

As you can see, each situation is unique, and timing is everything. Only an experienced personal injury can guide you through some of these minefields in a way that will allow for a thorough investigation before answering your legitimate question: “Do I have a case?”

Hot Dog Legal Wars: Who's The Biggest (Wiener?) (Whiner?)

Hot dog companies suing the casings off each other. Seriously? You bet, according to a recent news article. With apologies to Bruce Buffer, the ever present UFC announcer, in one corner is Kraft Foods, home of the Oscar Mayer Wiener. Their corner team consists of a paltry four attorneys. In the opposite corner is Sara Lee and the Ball Park Frank, which has "mustered" (ooh, pardon the bun..err...pun) an entourage of five lawyers.

A reporter for The Naperville (Ill.) Sun aptly summarized this lawsuit lunacy when he noted:

In a development that proves we are entering the dog days of summer, as well apparently as the fact that large corporations have to find some way to justify all the money they spend on lawyers, two of the Chicago area’s biggest companies went to trial Monday over whether they have been making false advertising claims about their hot dogs

.

Really? Two huge companies seeking to spend probably millions in legal fees grilling and roasting each other over claims and counterclaims of false advertising and unfair "taste tests?" To me, that sounds like a whole lotta bun and no dog, or at least a colossal waste of judicial resources and time (no word on whether the late great U.S Supreme Court Justice Felix Frankfurter will return from the heavens to preside over the case).

But here's what really skewers me. The Chamber Of Commerce and its militant wing, "The Institute For Legal Reform," is famous for sending out alerts and e-mail blasts about the latest "frivolous lawsuits" that supposedly cost us jobs, drag down the economy, and raise the price of consumer goods. According to The Chamber, frivolous personal injury lawsuits are as Un-American as a tofu hot dog served at a VFW picnic on the 4th of July.

But when it comes to two colossal corporations using the legal system in no holds barred, dog eat dog fashion, this is perfectly OK to The Chamber. Wouldn't millions in corporate legal fees conceiveably drive up the cost of Oscar Meyer wieners and Ball Park franks? Yet, you won't see any "e-mail alerts" or railing on this ridiculous lawsuit because corporations' full access to the legal system is "The American Way" and should be cherished. To do so would step on a few corporate toes, and The Chamber will have nothing of that.

Why the double standard? Because they don't care about your individual access to the legal system if you get maimed or screwed. In fact, they spend millions each year lobbying for laws that make it as hard as possible for you to sue corporate America even for LEGITIMATE claims and injuries.

There's two sides to the bad lawsuit coin, folks. But you'll hardly hear about legal laughers like these corporate "wiener wars" unless you dig really hard or stumble upon websites like this one.

All this talk about hot dogs is making me hungry. I think I'll go grill some Nathan's dogs (my preference anyway). I'm sure The Chamber of Commerce will recommend that I wash them down with some McDonald's hot coffee...

The Anatomy of A Personal Injury Lawsuit (Part 1)--The Initial Meeting

Almost all of our Ohio personal injury clients have had no dealings with lawsuits or the legal system. Their only "experience" may have been what they've heard from others or what surfaces in the media. Consequently, they understandably have no frame of reference for the day to day workings of our civil justice system. When this truism is mixed with the LOADS of misinformation floating around about our legal system (hatched by interest groups too lengthy to mention here), it can be a prescription for a lot of confusion.

THE INITIAL MEETING

This is often the first opportunity we have to educate our clients about what is involved in the life cycle of a personal injury claim. But before this occurs, the best thing we can do is simply listen. Clients have understandable concerns and questions like:

Who's going to pay for my medical bills?
Will my lost wages be covered?
How long will my claim take?
Will a lawsuit be necessary?
What is my claim worth?

Many of these questions can be answered at the initial meeting. In fact, our free book, "Your Ohio Accident: Sorting Through The Insurance Maze," addresses many of these questions. One question that CANNOT be answered at the initial meeting is the value of the claim. There are too many variables that come into play that make that question pure guesswork until more information is learned from the accident report, witnesses, the medical treatment, what's contained in the medical records, and whether the client's injuries are permanent or merely temporary in nature.

But for certain, the initial meeting should not be a 15 minute revolving door one, and it should not be a high pressure "sign the contract right now for us to get started." Anything else is a red flag that should send you right out the revolving door to someone else...

Preserving Evidence In An Ohio Truck Accident--And The Most Important Thing To Do After An Accident

When it comes to semi or large truck accident cases, The Rolling Stones were wrong. Time is not on your side. As the clock ticks on your truck collision claim, here's what you need to know.

There is a little secret known to some (but not all) attorneys who routinely handle trucking accident cases in Ohio or any other state for that matter. This gem packs a powerful punch, and is an absolute must do for any attorney who represents truck crash victims. Properly done, it can set the table for cementing a solid liability case against a negligent truck driver and his or her employer. It can even be crucial in exposing a trucking company to a claim for punitive damages.

It is a "spoliation letter." A spoliation letter is a detailed letter sent to the proper entities that demands that a truckload (pardon the pun) of information and documents be immediately preserved and not "spoliated" (legalese for destroyed) in the event of possible future litigation against the trucking company.

Why is a spoliation letter so important? A thumbnail sketch of the anatomy of a trucking accident and lawsuit will shed some light. Reduced to its essence, any trucking accident involves a relationship between 3 crucial elements: the driver, the truck, and the trucking company.

There are a myriad of possibilities that cause a truck accident. Was it driver error? Was the truck overloaded or the cargo not properly secured? Was the driver fatigued or over his federally mandated hours of service driving requirements? Did improper maintenance contribute to the crash? Was the truck properly inspected at the necessary intervals? Or, did the driver have no business being behind the wheel due to a poor accident history or a shoddy background check?

Trucking companies are required to keep detailed records on all these issues as mandated by The Federal Motor Carrier Safety Administration (FMCSR) Regulations and, in Ohio, through the PUCO. But here's the rub: many of these records are subject to a retention period of as little as six months.

A thorough spoliation letter sent immediately after a trucking accident, which details a request for all these records, coupled a request to preserve them, is essential to avoid a lawsuit defense down the road of, "gee, we got rid of those records after _____ months in compliance with federal regulations."

Example: recently I represented a dock worker injured in a loading dock accident when the truck driver failed to set the brakes, and the truck drifted during loading. The driver had a standard "accident kit" (per his company's written policy) that included a disposable camera. A spoliation letter was immediately sent, which included a request that all accident photos be preserved. The trucking company denied liability, and a lawsuit was filed.

Sure enough, the trucking company denied that it had any photographs of the accident scene. One small problem: the driver was eventually located, and he claimed that not only did he take pictures, he turned them into the Safety Director (who denied all of this under oath).

Armed with this "photos--what photos?" defense, and our initial spoliation letter, we filed a motion to include a claim for punitive damages against the trucking company for "spoliation of evidence." There is ample law that allows a claim for punitive damages when a trucking company is on notice of possible litigation, and allegedly destroys or loses evidence. After the judge granted our motion, the case settled just before trial.

So here's the takeway: what's a surefire way for crucial evidence in your trucking accident injury case to be forever missing like the infamous Watergate tapes? Simply wait on insurance companies' promises to "treat you fairly" after an accident, eventually receive a crappy settlement offer, finally decide to call an attorney, and then let him or her tell you that crucial evidence is now missing due to a long lapse of time.

How Do You Select A Competent Ohio Malpractice Attorney?

Choice can be a good thing when it comes to hiring any professional. But when it comes to hiring an Ohio malpractice attorney, how do you sort through the seemingly endless maze of phone book and TV ads, and a dizzying array of Internet websites? Here are some tips that will hopefully make your choice easier.

AVOIDING THE INTERNET "CIRCUS"

I've never been a fan of circuses. Too many clowns for my liking--in fact, one clown is one too many in my opinion. And the food is downright awful. The standard fare cotton candy and circus peanuts not only lack any nutritional value, but give me a sugar buzz, splitting headache as well. In many ways, a circus is a good metaphor for the majority of websites designed to "help" you select a medical malpractice attorney.

For example, some websites are "generic" sites that do not identify a specific malpractice law firm or attorney. Many are nothing more than "clearinghouses" and are actually out of state firms that attempt to "sign you up," then refer you to an attorney in your local area. The catch? The "referring" firm takes a cut of the potential recovery in your case, and you have no choice over the local attorney whom you're referred to. If you like the idea of a roundabout, "forced marriage," feel free to go this route.

Yet other websites merely list firms in local areas who claim to provide legal services like "malpractice attorneys." Take lawyers.com, for example. If you click on "ohio" and "personal injury" and then hit the link for "Canton," you're given a listing of various firms from all over Northeast Ohio who claim to litigate Ohio malpractice claims. The problem? Many of these firms actually represent doctors and hospitals in defending malpractice claims! Obviously, if you're a malpractice victim looking for an attorney to represent you against a doctor or hospital, you have no way of identifying which of these firms represent malpractice victims or defend those claims--unless you visit countless firm websites and/or make numerous phone calls.

"SELF LAUDATORY" WEBSITES

As you fine tooth comb numerous law firm websites, ask yourself this question: how many firms and attorneys devote countless website text and video talking about themselves? How do adjectives like "experienced, "tough," "committed," "aggressive" help you select a competent firm when most firms are touting these superlatives? If you think about it, have you ever viewed a law firm website that says: "We're not all that experienced, tough, compassionate, or competent but we would like to represent you?" The point is this: "bragging" websites are a lot like that circus cotton candy: airy, doesn't last long, and seriously lacks any real substance.

The same holds true for all those TV ads. Does this mean that these firms are not competent to handle your malpractice claim? Of course not. But it does mean that you have to dig deeper to cut through all the cookie cutter claims of "greatness" that exist on the airways or on the Net.

There is a better way to hack through this forest. The absolute best way to start any search for an attorney is to ask friends, neighbors, or those connected with the legal system, for a recommendation or two. Second, look for websites that actually give you useful information that may answer some questions you may have before you ever pick up the phone or send an e-mail inquiry. Third, an in person interview is a must. You should expect not to be "pressured' to sign anything during your initial interview. And be on the lookout for any attorney or firm that tells you that they "are the only one" that can adequately represent you. No lawyers should feel the need to blow out some other lawyer's candle in order to light their own.

So shop around. And make your choice carefully and methodically.