personal injury lawyer

December 9, 2009

Alcohol Impaired Drivers Continue to Kill

According to NHTSA’s National Center for Statistics and Analysis there were 1035 people killed on Tennessee roads in 2008. Of those fatalities, 327 of them involved at least one driver who had a blood alcohol level of 0.8 or greater.

This is an alcohol-related death rate of .47 people per 100 Million Vehicle Miles Traveled (VMT). The death rate per VMT is down 11.3% from a year earlier.

In 2008, Montana had the highest alcohol-impaired fatality rate in the Nation – 0.84 fatalities per 100 million VMT while Vermont had the lowest rate in the Nation – 0.16 per 100 million VMT.

December 7, 2009

When to Evaluate for a Hypercoagulable State

by The Law Offices of John Day, P.C.

The Doctors Company is a medical malpractice insurer. Its website contains articles of interest to all Tennessee medical malpractice lawyers and, in fact, medical malpractice lawyers in every state.

For example, one interesting article is titled "When to Evaluate for a Hypercoagulable State." Here is an excerpt:

Hypercoagulability is any alteration in the coagulation pathway that predisposes to thrombosis; it can be divided into primary (genetic) and secondary (acquired) disorders.

November 30, 2009

Defendant’s Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees

by The Law Offices of John Day, P.C.

What do you do when a party to a lawsuit intentionally refuses to follow the rules? One judge in Washington State knew what to do: the judge struck the defendant’s answer, entered judgment for $8,000,000, and awarded attorneys’ fees. Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details. The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña’s request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

November 22, 2009

New Medical Malpractice Case Filing Statistics

by The Law Offices of John Day, P.C.

Here is the most up-to-date data on medical malpractice case filings in Tennessee.

Regular readers know that effective October 1, 2008 the General Assembly imposed significant restrictions on patients who want to file a medical malpractice suits. The new law, which was modified again effective July 1, 2009, requires pre-suit notice and the filing of a certificate of good faith.

For the 12-month period ending September 30, 2008, 644 medical malpractice lawsuits were filed in Tennessee. A whooping 140 of those were filed in September 2008 as lawyers filed suits to avoid the burden and risks of filing cases under the new law. If September 2008 were an average month, one would have expected only 45 cases to have been filed.

November 18, 2009

HealthGrades Sixth Annual Patient Safety in American Hospitals Study

by The Law Offices of John Day, P.C.

HeathGrades studies Medicare patient care in our nation’s hospitals based on 15 indicators of patient safety.

Here are some highlights from the 2009 report representing data from 2005 -2007:

· There were 913,215 total patient safety events among 864,765 Medicare beneficiarieswhich represents 2.3 percent of the nearly 38 million Medicare hospitalizations.

November 17, 2009

Motorcoach Safety Action Plan

by The Law Offices of John Day, P.C.

The United States Department of Transportation has adopted the Motorcoach Safety Action Plan following an analysis of safety data. DOT has identified seven priority action items that will have the greatest impact on reducing motorcoach crashes, fatalities and injuries. The items include the following:

Rulemaking concerning electronic on-board recording devices to monitor drivers’ duty hours and manage fatigue.
Rulemaking to prohibit cell phones for drivers.
Rulemaking to require seatbelts.
Development of roof crush performance requirements.
Study stability control systems for motorcoaches.
Enhance oversight of carriers.
Establish minimum knowledge requirements for companies who seek to transport passengers.

Read the entire report here.

November 13, 2009

Inflatable Seat Belts?

by The Law Offices of John Day, P.C.

Ford Motor Company has announced that is bringing to market the world’s first automotive inflatable seat belts, combining attributes of traditional seat belts and air bags to provide an added level of crash safety protection for rear seat occupants.

“Ford’s rear inflatable seat belt technology will enhance safety for rear-seat passengers of all ages, especially for young children who are more vulnerable in crashes,” said Sue Cischke, Ford group vice president of Sustainability, Environmental and Safety Engineering. “This is another unique family technology that builds on our safety leadership, including the most top safety ratings of any automaker.”

Ford will introduce inflatable rear seat belts on the next-generation Ford Explorer, which goes into production next year for the North American market. Over time, Ford plans to offer the technology in vehicles globally.

November 11, 2009

Motorcycle Deaths and Injuries

by The Law Offices of John Day, P.C.

811208 The National Highway Traffic Safety Administration (NHTSA) recently released a report titled "Motorcycle Helmet Use and Head and Facial Injuries." The Report has a lot of data on motorcycle crashes and the injuries the result, comparing the injuries received by those wearing helmets and those that do not.

Here are a few highlights from the report:

The combined data set contains information on 104,472 motorcyclists involved in crashes in these 18 States during the years 2003, 2004, and 2005.
In the data set, 57 percent of motorcyclists were helmeted at the time of the crashes and 43 percent were non-helmeted. For both groups, about 40 percent of motorcyclists were treated at hospitals or died following the crashes. However, 6.6 percent of unhelmeted motorcyclists suffered a moderate to severe head or facial injury compared to 5.1 percent of helmeted motorcyclists.
Fifteen percent of hospital-treated helmeted motorcyclists suffered traumatic brain injury (TBI) compared to 21 percent of hospital-treated unhelmeted motorcyclists. TBI severity varied by helmet use. Almost 9 percent of unhelmeted and 7 percent of helmeted hospital-treated motorcyclists received minor to moderate TBI. More than 7 percent of unhelmeted and 4.7 percent of hospital-treated helmeted motorcyclists sustained severe TBI.
As of 2007, fatalities had increased for the 10th year in a row, an increase of 144 percent compared to 1997. While there has also been an increase in motorcycle registrations during this period, the rate of increase in fatalities has been greater than that of registrations.
This increase in deaths has been especially marked among riders 40 and older, who now constitute approximately half of all deaths. In 1997, this older group accounted for 33 percent of rider deaths, but had grown to 49 percent by 2007. Although fatalities increased in all age groups, the largest increase has been in the group of riders over the

November 10, 2009

Seat Belt Use Continues to Increase

by The Law Offices of John Day, P.C.

The use of seat belts continues to increase in the United States.

Seat belt use in 2009 stood at 84 percent, a gain from 83 percent use in 2008. This result is from the National Occupant Protection Use Survey (NOPUS) which is the only survey that provides nationwide probability-based observed data on seat belt use in the United States.

Vehicle occupants in Tennessee and other southern states continue to use seat belts at a level less than the national average (82%). Those in pickup trucks have the lowest rate of use (74%).

November 9, 2009

Thoughts About Subrogation

by The Law Offices of John Day, P.C.

A defense lawyer and I were having a drink the other day and he told me that from time to time he has difficulty getting cases settled at mediation because plaintiff’s lawyers don’t have information about subrogation interests. Here are some tips to avoid such problems:

At the initial client meeting, as you help you client understand his or her rights and go through the outline of the types of damages he or she can recover if the case is successful, explain the law of subrogation. To do so you have to ask whether any insurance company or governmental entity paid the outstanding medical bills. Then, explain that usually it will be necessary to re-pay the entity that paid these bills monies from the proceeds of any settlement or judgment. This not only informs the client of his or her obligation to re-pay the bills but also sets client expectations at an appropriate level.
If the bills are paid by a private entity get a copy of the applicable insurance policy or summary plan description to determine if a right of subrogation or reimbursement exists and if the plan is an ERISA plan.
If the bills were paid by a governmental entity (in Tennessee this usually means either Tenncare or Medicare) you need to either know the law of subrogation or look it up. The bottom line: government payors have a right to be re-paid and it is your obligation, as a lawyer, to help them get re-paid. If you don’t do so you (the lawyer) will be on the hook to re-pay these bills, so it is in your best interest to understand this law and help your client fulfill their obligation.
Remember that your client’s medical bills may have been paid by worker’s compensation. If so, the payor has a statutory right of subrogation. Ignore it at your peril.
Gather all of the medical bills and determine who paid them. Your client may not have given you accurate information about the entity that made the payments on the bills. For instance, sometimes a client receives both Medicare and Tenncare benefits. You need to know each entity that paid bills. It is also possible that your client’s auto insurance carriers paid some of the bills under a medical payments provision in the policy. Get a copy of the policy to be sure, but auto insurance carriers almost certainly have a subrogation right for any such payments.
Private health insurers routinely send letters asserting subrogation interests. Tell your client that they may be receiving such letters and make sure you get them.
Ascertain the amount paid by each third-party before the mediation of the case. This can be difficult, especially with Medicare, but start early and keep at it. Do not accept numbers over the phone – try to get the payment amounts in writing. If you get a total-payment figure over the phone confirm the number in an email or letter. Do not wait until the day or even the week before the mediation to do this – you will not get the information you need before the mediation.
You will need to check the claimed subrogation interest versus the amount actually owed. Sometimes insurers include bills for care unrelated to the incident. Thus, you must get a print-out of who the insurer paid and the date of service for that payment and compare it with your client’s medical records.
Get the name and telephone number of a contact person at the third-party payor that you can contact during a mediation. Make sure you understand if their office is on Central time, Eastern time, or some other time – you need to know how late you can reach them. Advise them that you have a mediation on a given day and that you will need to be able to reach them during the mediation.
Some payors will reduce the subrogation amount if the client is not "made-whole" even if they have no legal obligation to do so. A version of the made-whole doctrine is statutory for Tenncare payments and the common law made-whole doctrine applies to med-pay and non-ERISA health insurance policies in Tennessee. Understand the law applicable to each third-party payor before the mediation.
In the days or weeks before the mediation as you explain the process to your client remind them once again of the need to re-pay the entities that paid the medical bills. By doing so you are reminding them of their legal obligation and at the same time setting a reasonable level of expectation of what will occur at the mediation.
Have the relevant contact information and the claimed subrogation amounts with you at the mediation. How often you contact the payor during the mediation is subject to many factors, but generally speaking as want to call them as the settlement appears to be coming together. You can often negotiate the amount due, but be armed with the facts that will help you do so. The best fact to use to negotiate a reduction is a liability insurance policy that is totally inadequate given the injuries and the lack of any assets from the defendant. There are a multitude of other factors, such as immunity for one or more defendants, a damage cap for a governmental entity, very difficulty liability facts, etc. If the made-whole doctrine is applicable all arguments must be marshaled and presented. Some carriers are willing to cut their subrogation amount if you demonstrate a willingness to help get a difficult case resolved by reducing your fee. Confirm any deals made in writing or by email.
Try to have the subrogation issues resolved before you leave the mediation. If that is impossible, then attempt to make the settlement subject to a satisfactory resolution of subrogation interests in the next few days. Be sure the language of the agreement with the defendant provides that it is you (and your client) that must be satisfied with the resolution of the subrogation interests.
As I mentioned above, it is difficult to get a straight, final answer out of Medicare. Start early, and write to them often. Try to get the name and number of a human being. If you cannot get an answer out of Medicare before the subrogation, you will be forced to estimate the amount of their subrogation interest. You will usually be safe if you assume that Medicare paid 40 cents on each dollar charged by a health care provider. In other words, if the hospital bill shows $10,000 you can assume that Medicare paid $4000. It will usually be less. However, this will help your client understand his or her "net" recovery and will help you negotiate with reasonable comfort.

Why should you care about all of this? If you do not have a knowledge of subrogation law it will be more difficult to settle your client’s case because your client will not be able to understand the "net" recovery. If the client thinks that he or she is going to receive "X" and then finds out that "X" has to be reduced by a subrogation payment, he or she going to be upset. If the subrogation interest is one that imposes an obligation of the lawyer to protect, you risk financial loss and/or disciplinary action for failure to fulfill that obligation.

In summary, part of being a plaintiff’s lawyer is having a good grasp on the contractual and statutory rights of those who have paid your client’s medical bills. Another part of being a plaintiff’s lawyer is addressing such matters directly in a manner consistent with the law, with both the payor and the client, to avoid future unpleasantness.