Vegas Personal Injury Law Blog

Over the past few years the media has been reporting on an alleged conspiracy in our medical legal community involving prominent attorneys, judges, a medical consultant, and doctors.  This scandal has been labeled “Las Vegas’ Medical Mafia”.

It began with a motor vehicle accident where the adverse driver was a federal prosecutor.  Obviously, there are two sides to every story.  The media has concentrated on the medical-legal unethical conduct.  There has been little coverage concerning the interaction between the prosecutors and the auto insurance companies.  Ironically, to date, nobody has actually been convicted.  Some doctors have been given immunity, and one doctor is about to enter a plea bargain with the prosecution.  The details of this proposed plea bargain have recently been made public.

The end result of all this has been detrimental to the already tarnished image of attorneys handling personal injury cases.  Why do these things happen?

Insurance companies on one hand are very concerned with fraud which costs them billions of dollars annually.  They don’t like big verdicts, even though they have almost unlimited resources to defend these cases.  So the insurance industry is motivated to protect their financial interests by setting examples of attorneys, doctors, and consultants who are involved in large verdicts.

On the other hand, zealous representation of personal injury victims sometimes involves going to the absolute limits of what is permitted by the rules of professional conduct.  The closer that an attorney gets to the line, the greater the chance of crossing it.  The more often a medical-legal professional goes to the line, the more blurred the ethical boundary line becomes.

The zealous defense of personal injury claims also involves some danger of crossing ethical boundary lines.  Attorneys for both sides experience anxiety when deciding over how far they can go in the representation and defense of their clients.  Both sides are motivated by ego and financial gain.  In order to win a personal injury case, there must be cooperation between the attorney and his medical witnesses.  How far can this cooperation go before it is labeled collusion?  All this is a part of the war that goes on between accident victims, insurance companies, personal injury attorneys and defense attorneys.

So what do we come away with from all of this?

The bottom-line is that there are many victims of auto accidents that are never fully compensated.  Many victims, years after they have settled their auto accident claim, will need spinal surgery.  There are others perhaps that are overcompensated.  The more medical-legal pressure that is applied in a personal injury case, the greater the risk that one side will cross the line between ethical and non-ethical conduct.

So, both sides of the medical-legal war need to step back and take a good look at what they are doing to bolster their position.  Be cognizant of the ethical limits of zealous representation.  If you believe that the other side is crossing the line, that doesn’t necessarily mean that you also need to cross the line to protect your client’s interests.

We should all be concerned about the damage that the “Las Vegas’ Medical Mafia” cases have done to the reputations of our medical-legal community.  It’s up to us to repair this damage by making sure that our future conduct does not involve any risk of unethical behavior to achieve quality representation of our personal injury clients.  If the “Las Vegas’ Medical Mafia” media coverage has taught us anything, it has more clearly defined the line between professional and non-professional conduct, and has given us some examples of what we should not get involved in while representing our personal injury clients.

The automobile insurance industry in the year 2009 has been negatively affected by our sour economy. The insurance industry warns that, by the end of this year, one out of six drivers will not be covered with automobile liability insurance. As a result of current rising unemployment rates, there has been a stunning rise in the number of drivers who are cutting back, or even dropping their automobile insurance coverage altogether, to save money. Therefore, we are looking at record numbers of uninsured motorist on our roadways across the nation.

Auto liability coverage is required in all states with the exceptions of New Hampshire and Wisconsin. In the past, the percentage of drivers without insurance coverage fell steadily until two years ago when the uninsured rate was 13.8%. But, starting in December of 2007, the uninsured rate spiked to 14.6%. The forecast is that the uninsured rate will be 16.1%, by the end of this year. This equates to 33 million licensed drivers across the country without any automobile insurance coverage, based on figures compiled by the Federal Highway Administration.

This phenomenon of increasing uninsured motorists is directly attributable to our challenging economy. An increase in unemployment of 1% results in an increase in uninsured motorists rate of more than three quarters of a percentage point. Many drivers who are unemployed cannot afford to maintain the minimum liability coverage required by state law. Food and rent become the primary financial concerns for these individuals. The average cost of an auto insurance policy was $72.25 per month ($867.00 annual premium) in 2007.

Uninsured motorists can face legal fees, fines, and penalties such as a suspension of their driver’s license. If they injure someone in a liability accident, they may be forced to file for bankruptcy. When economic pressures are high, uninsured motorists appear to be willing to accept these risks.

Obviously, it’s a bad idea to cut back on your auto insurance coverage during an economic recession. In fact, during economic recession, it is logical to increase your uninsured motorist and underinsurance coverages to protect yourself and others you care about. See my earlier post on UM/UIM Coverage.

The global financial crisis has negatively affected auto insurance companies. The reduced demand for auto insurance during the current financial crisis will result a very turbulent 2009 for the auto insurance industry. They may be required to raise their rates.

Grim economic times usually result in increased claims. People who would never think of filing an insurance claim, are more inclined to do so when they need money.

The current economic crisis has affected the demand for insurance. The reduced demand for auto insurance, results in diminished income to insurance companies. On the investment side, insurers have taken a massive hit. They are receiving much less income on their investments, because they are tied into th e stock market.

One way the insurance industry is reacting to the current recession is by denying more claims. They are also utilizing delay tactics on the settlement of auto accident claims. The more that they delay the more income they can earn in their reserves. They are settling claims for as little as they can. They must cut down the costs associated with litigating auto accident cases. You will see more auto insurance carriers utilizing in-house counsel rather than private counsel to handle auto accident cases to reduce their costs.

Considering all this, it is currently more difficult for your attorney to settle your personal injury accident case for fair and reasonable compensation. I have filed more lawsuits in the last two months on car accident personal injury claims than I ever have in the past. So, don’t blame your attorney, if your case doesn’t settle. Current economics may be directly affecting the settlement of your Personal injury claim.

Some information for this post came from an MSNBC report.

Beginning July 1, 2009, Medicare Secondary Payor requires insurers to report any settlement, judgment or award to Medicare. Failure to report any settlement, judgment or award will result in a $1,000.00 per day penalty to the insurance company. Medicare Secondary Payor can sue for double damages, plus interest. The suit can be initiated against the insurance company, the Medicare beneficiary and his or her attorney, as well as the physician, if the settlement of the claim or suit does not protect Medicare’s subrogation interests.

Medicare is now contacting auto insurance liability insurance companies notifying them that funds be held for payment of Medicare liens. This may even include funds for payment of future medical services. If this happens, the attorney will probably receive a settlement check with Medicare’s name on it. This will certainly complicate and delay the settlement distribution to the medicare beneficiary.

Pain and Suffering Damages are the effects on a person’s life as a result of physical and emotional injuries.  They include the loss of enjoyment of life and pain and discomfort doing daily activities such as cleaning the house, going out with the family and raising children. Placing a value on pain and suffering resulting from a motor vehicle accident is a is a difficult task for any mediator, arbitrator or juror involved with the personal injury case.  There’s no one to scientific formula, chart or table that attorneys and insurance companies can look to you determine the value of a person’s physical and emotuional pain and suffering as the result of an accident.

I was surfing the Internet recently when I came across a web site that claims to evaluate  personal injury claims.  I typed in a medical bills of $5,498.00, vehicle repair costs of $1,000.00, rental car expenses of $250 and wage loss of $500.  The program gave me an estimated claim value of between $13,006.95 to  $26,243.41.  Based on my 25 years of experience in dealing with personal injury cases, I find this to be a simplistic and unrealistic evaluation, especially in situations where a person is not represented by an attorney. Don’t rely on this type of information to evaluate the value of your auto accident case.

Oftentimes, the victim that suffers the most as a result of an auto accident does not receive adequate compensation for pain and suffering because that victim has inadequate documentation, incomplete documentation, or lacks good pain and suffering witnesses. Studies have shown that juries evaluate pain-and-suffering  higher in urban settings than juries in  rural settings.

There are many factors that need to be considered in determining the value of pain and suffering.  Juries (and even insurance companies) look to the credibility of the victim as a witness.  Arbitrators, mediators, jurors and insurance companies also look to see if a person’s actions following an accident are consistent with someone who is in pain.  They look to see how the injured parties everyday life is changed as a result of an accident.  Sometimes extraneous factors such as pain tolerance, occupation and marital status are sympathy factors that can increase the value of a personal injury claim.  The skill and experience of the attorney representing the injured party can influence the evaluation of pain and suffering damages.

Juries often look to, and are swayed by, factors such as the age.  Older people probably will suffer more from auto  accident injuries because their body  cannot recuperate as well younger people.  Juries often have the mind set  that  that younger people should heal more quickly than older people.  Some juries  think that a person suffers more because he continues to care for his children while healing for an injury.  One of the most of the important factors that jurors consider in evaluating pain-and-suffering is the honesty of the injured party.  Sometimes the injured party can be too prepared and too confident on the stand.  

People that have an aggravation of a pre-existing injuries will usually receive less for pain and suffering then people with new injuries.  This has a lot to do with insurance company evaluation.  Their position is that aggravation cases are easy to defend. However, in litigation it should be the attorney’s job to you convince the jury that the old injury was aggravated and that the than aggravation of a pre-existing condition requires more medical treatment and results in more residual pain and suffering than an original injury.

More medical treatment does not necessarily mean more money for a pain and suffering.  However, the total amount of medical bills is definitely one factor that is considered.  Running up medical bills unnecessarily is looked at with a fair degree of suspicion.  Stretching out treatment on a minor injury can be interpreted as greed on the part of the injured party, and this is certainly the position that will be taken by the insurance company.  Jurors have a tendency to award higher damages for pain-and-suffering on accidents that involve major property damage as opposed to minor property damage.

I was in a settlement conference  with  District Court Judge Timothy Williams on a wrongful death case.  The judge told my clients that juries are very unpredictable.  He gave the example of two  separate  cases that went to trial recently involving similar injuries with meniscus surgery following a knee injury.  Two different juries came back with divergent evaluations of medical bills and pain and suffering.  In one case the jurors awarded a reasonable amount in a trial where evidentiary issues should have drastically reduced damages, and in the second case the jurors’ award reduced the actual medical expenses drastically and awarded the injured party nothing for pain and suffering. 

Therefore, all we can say about the value of pain and suffering on an auto  accident case is that there is no definite formula.  Generally, the better pain and suffering is documented, the higher the award for pain and suffering.  The concept that pain and suffering is worth some multiple of the medical expenses is not a standard of evaluation that is uniformly applied.

As you can see documentation is the key to obtaining a reasonable settlement on the personal-injury auto case.