Short Trial Experience

In the event that you have never attended a short trial, you may be interested in reading this Blog. Two auto Insurance company adjusters attended this trial and stayed from beginning to end, and the ADR Commissioner also visited the courtroom.

One issue that came up during the trial was what I was allowed to comment on concerning my client’s medical records in closing arguments. The judge ruled that I could not comment on what the results of my client’s positive orthopedic tests for meant, because no explanation of what a positive result on those tests was stated in his records. For example, on the initial exam had a positive Soto-Hall test, which would indicate that cervical nerve root compression was present. And, he had a positive Kemps bilaterally, which would indicate facet joint involvement. The judge determined that, if I were allowed to make those comments, that I would allow me to render an expert opinion. I argued to the judge that it doesn’t make sense that, if something is in evidence, that I can’t comment on what it means. In the event that my comments are erroneous, then defense counsel can make an objection, or he can tell the jury that I am wrong, and that positive test result indicates something else. The Short Trial Judge did allow me to comment on the difference between sprains and strains, because this would be within the common knowledge of most people.

I was also not allowed to comment on purpose of therapies utilized on my client. For example, I was not allowed to comment that chiropractic manipulation is used was to correct structural misalignment and reduce scar tissue formation to help to promote prevent chronic conditions from occurring. I was not allowed to comment that the purpose of heat and cold were to bring blood flow to the injured tissues to promote healing, or that the purpose of ultrasound was to relax muscles and thus reduce pain. I could not comment that the purpose of electrical stimulation was to reduce muscle spasm and thus reduce pain. I was not permitted to comment on any of this at trial because these explanations did not appear in my client’s medical records.

If medical providers would add this information to their records, this would be of tremendous help to attorneys who do short trials, because the damages claimed in these cases do not justify the expense of calling medical experts.

One big problem in the case was the one provider would not cooperate in signing a Declaration like another provider did. We sent a declaration to this provider’ office three times. We had multiple calls to that facility that fell upon deaf ears. His bill for one visit was $1,330.00 was the subject of a huge amount of comment by the defense during the trial. Since I had no declaration from this provider, I am sure that the jury severely discounted his bill. This made a low impact case even more difficult. Hopefully, the physicians that I use in the future will understand the importance of including a statement that their charges are reasonable and customary, and their treatment was medically necessary as a result of the patient’s accident-related injuries. Perhaps if any personal injury providers are reading this blog you can modify your record keeping procedures on your auto injury patients. We all need to work together to coordinate our efforts in combat against the insurance companies on low-impact auto accident cases.

Another issue came up during this trial was that my client was sent to a pharmacy that provided medications on a lien. One of the plaintiff’s prescribed medications was Voltaren Gel 1% (Diclofenac Sodium) (five tubes at 10 grams per tube) and another was Naproxen, which the defense argued was simply over the counter Ibuprofen. Needless to say, the charges for these prescriptions were high, because they were provided on a lien. While we were waiting for the during jury deliberations one of he topic of conversation that came up in the courtroom was, what is a reasonable and customary charge for medical services these days? Prices for medical services are all over the board. The conclusion is that nobody knows for sure, yet the legal system leaves that determination to the trier of fact.

On this case, I had to respond to written discovery, attend my client’s deposition, write an arbitration brief, participate in an arbitration hearing and, go through all the preparation that is associated with a short trial. We were in the courthouse for eight hours, and I had generate all of the post-trial motions. This preceding list does not include the preparation time involved with all of these legal matters as well as the time involved with pre-litigation matters.

I completed this short trial on June 9, 2017. The jury verdict was $3,645.00 for medical specials and $1,700 for pain and suffering. The total was $5,345.00. My client’s medical specials were $6,080.00. This was a low impact case. We had no offers pre-litigation. On post-trial motions I was granted costs, which included the short trial judges fee, prejudgment interest, and attorney’s fees were granted for less than one-third of the amount of the jury verdict. As I previously mentioned, we were in the courthouse for eight hours. I had sufficient time on this short trial, so that if I were billing for at a rate of $100.00 per hour (a very low rate these days), that I would be entitled to a maximum award of attorney’s fees of $3,000.00. I really thought that I deserved a maximum attorney fee of $3,000.00, however he short trial saw it differently, and he decided that my time was worth a lot less.

We all need to get up in the morning and make our beds. This means that little things, like a short trial can make a big contribution to the life of an injured low-impact auto accident victim. It can also make some minor positive impact overall in the bizarre insurance world of low-impact-auto-injury-accidents. This trial won’t produce a make a large ripple effect within insurance industry, just because the adjusters that sat through it, and reported back to their supervisors on the outcome. They probably reported that they won this battle by using up my time. However, this trial did nothing to reduce my motivation and spirit to continue on in the battlefield of low impact auto accident cases.

Physician Assistance on Proof of Wage Loss

Previously I posted a blog on this subject. Since that time, I don’t believe that much has changed with physician’s offices concerning this subject, so I am revisiting this issue to give health care providers another opportunity to make changes to their policies and procedures to assist personal injury clients with proof of their wage loss.

I make the preliminary comment that there is a big difference between the records of physicians who are familiar with the ins-and-outs of personal injury insurance claims and those that do not have this experience.

I have a current auto claim involving a teacher. The client’s medical records say nothing about him missing work, nor do they make any comment about the difficulties that he experienced while at work as a result of his injuries. He had to take off a half day of work to visit the chiropractor. He took several full days off work immediately after the accident. He also missed full days of work periodically because of a flare up on his injuries. There is nothing posted in his medical records about any of this.

The school district does not require a doctor’s excuse for an employee to utilize their sick days or personal leave days. The use of sick days has a damage value equal to the client’s daily rate of pay, even though the injured party did not lose any income because he used them.

I have been informed that some physicians don’t have off-work slips to give to their patients. If your office doesn’t have them, you should generate a simple off-work excuse form. Give one to the client so that they can forward it to their human relations/payroll departments (even if it is not required), so that the reason for the absence can be documented.

Obviously, if the physician doesn’t query the patient about their work absences and the difficulties that they are experiencing at work, then those wage loss details cannot be documented. I don’t believe that many physician’s offices routinely ask their patients if they had to take off work to be able to treat with the provider.

So, in this example, the teacher had about $8,000.00 in wage loss, but the adverse insurance company did not assess any damages for lost income because there was nothing in the medical records, human relations and wage loss documents from the school district to verify that the absences were related to accident-related injuries.

I would like health care providers who treat accident victims to be aware of this insufficient documentation of wage loss damages.

So what can physicians do to assist personal injury patients with verification of past wage loss?

1. The doctor must be cognizant of the fact that wage loss needs to be documented, so that he can query the client about it.

2. Since a doctor’s excuse can be an element of proof for past wage loss, the treating physician should always give the patient a doctors excuse to verify any absence from work, whether the employer requires it or not. The doctor should advise the patient that he should forward the doctor’s excuse to their personnel department, payroll department, or human relations department, so that it becomes part of their payroll/personnel records.

3. The physician should document any absence from work in his patient’s records by referencing how the patient’s condition prevented him from working and/or how the patient’s condition would be exacerbated by the physical tasks associated with the patient’s work.

4. Previously, I have written about how references to “duties under duress” can increase the value of a claim because they objectify pain and suffering. Likewise, the physician should inquire on each visit about how the patient’s condition is affected by work. Are you experiencing any pain while working? Have you missed any days/hours of work because of your injuries and associated pain since your last visit? If so, this information should be documented in the patients medical records. If interim full days of work have been missed, the physician should comment on his opinion concerning whether this missed time from work was reasonable and consistent with the patients injuries. Obviously, this documentation may take a few minutes to do, but it is extremely valuable to verify and take the mystery out of proof of past wage loss.

5. The patient should communicate the difficulties he’s experiencing at work to the physician, even if the physician doesn’t ask about it. When the physician asks the question (how have you been doing since your last visit?), the patient should communicate information concerning his work difficulties to the physician. Documentation of wage loss and difficulties experienced at work is a two-way street. The patient should communicate wage loss and work distress information to the physician, and the physician should inquire of the patient about how his work is affecting his injury, and document this information in his records.

6. Insurance companies don’t like to pay for past wage loss and have been successful in defending wage loss claims because of lack of documentation in medical records. Obviously, if wage loss and work distress information is entered in a patient’s medical records, the insurance companies will be more inclined to award them adequate compensation on their wage loss claim.

Lack of wage loss information in medical records makes these claims easy to defend. Work distress documentation is also important for proper documentation of pain and suffering in general. If the physical requirements of a patient’s work affects their accident-related pain and suffering, then documentation of this work distress must be noted in the patient’s records.
This is a common sense plan of the verification and documentation of past wage loss. To my knowledge, nobody has taken the time to articulate to physicians how important proof of past wage loss is to a personal injury claim. Hopefully, this article will result in the beginning of an improved plan for the documentation of past wage loss and the distress that injuries place on a patient’s ability to perform their work-related duties.

Nevada Wrongful Death Cases – What Do They Involve?

When I was a rookie attorney, I handled my first wrongful death case. That case involved an engine part that came off a moving car and penetrated the windshield of a vehicle approaching in the opposite direction and hit a front seat passenger in the head killing her instantly.

Initially I had to do a lot of research to be able to understand what was involved with a wrongful death suit. After having initiated several of these cases, I can now state that wrongful death cases are not much different than a normal liability injury lawsuit with a few procedural exceptions.

WHO CAN FILE A WRONGFUL DEATH CLAIM?

Heirs and personal representatives can file a wrongful death lawsuit. An “heir” is anyone that can inherit from the decedent, if the decedent died without a will. This often includes the decedent’s surviving spouse or domestic partner, children, parents or brothers and sisters of the decedent. The right to file a wrongful death lawsuit is controlled by the laws of intestate succession NRS 134.030-NRS 134.210. For example, if there is a surviving spouse and children then NRS 134.040 would apply.

NRS 134.040 Surviving spouse and issue

1.If the decedent leaves a surviving spouse and only one child, or the lawful issue of one child, the estate goes one-half to the surviving spouse and one-half to the child or the issue of the child.

2.If the decedent leaves a surviving spouse and more than one child living, or a child and the lawful issue of one or more deceased children, the estate goes one-third to the surviving spouse and the remainder in equal shares to the children and the lawful issue of any deceased child by right of representation.

People who cannot file wrongful death suits are fiances, foster children, unadopted step children and unmarried partners, even if they are beneficiaries under the decedent’s will.

WHAT IS A WRONGFUL DEATH CASE?

Every person has the duty imposed by case law to abstain from injuring another person or his property.

A wrongful death case can be based upon: intentional conduct, negligence (not intentional conduct) or strict liability for ultra hazardous activities or defective products which cause a person’s death.

Therefore, a wrongful death case is a liability case that results in the death of the injured person.

Nevada’s has a wrongful death statute states as follows:

NRS 41.085 Heirs and Person representatives may maintain action.

1. As used in this section, “heir” means a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if the decedent had died intestate. The term does not include a person wo is deemed to be a killer of the decedent pursuant to chapter 41B of NRS, and such a person shall be deemed to have predeceased the decedent as set forth in NRS 41B.330.

2. When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death, or if the wrongdoer is dead, against the wrongdoer’s personal representatives, whether the wrongdoer died before or after the death of the person injured by the wrongdoer. If any other person is responsible for the wrongful act or neglect, or if the wrongdoer is employed by another person who is responsible for the wrongdoer’s conduct, the action may be maintained against that other person, or if the other person is dead, against the other person’s personal representatives.

3. An action brought by the heirs of the decedent pursuant to subsection 2 and the cause of action of that decedent brought or maintained by the decedent’s personal representatives which arose out of the same wrongful act or neglect may be joined.

4. The heirs may prove their respective damages in the action brought pursuant to subsection 2 and the court or jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are not liable for any debt of the decedent.

5. The damages recoverable by the personal representatives of a decedent on behalf of the decedent’s estate include:

(a) Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and

(b) Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived, bu do not include damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are liable for the debts of the decedent unless exempted by law.

The Nevada legislature passed our wrongful death statute to compensate immediate family members for specific losses resulting from the death of a close relative and to provide financial support to widows and orphans of people killed by a wrongdoer’s actions.

Various statutes of limitation may apply to wrongful death claims. Generally, if the case is not filed within two (2) years of the date of death the plaintiffs will lose the right to file an action.

COMPENSATION

An individual’s financial compensation for wrongful death can include:

  • Grief and sorrow;
  • Loss of probable support;
  • Loss of companionship, society, comfort and consortium; and
  • Pain suffering and disfigurement of the decedent.

The decedent’s estate can recover for:

  • Decedent’s medical expenses;
  • Funeral expenses; and
  • Punitive damages – for the egregious conduct of the defendant causing the decedent’s death.

PROCEDURAL EVOLUTION OF A WRONGFUL DEATH CASE

1. Obtain copies of all official reports and photographic evidence related to the accident.

2. If liability is not very clear, hire necessary experts to evaluate the liability causes of action (e.g. tire blow out case – hire an accident reconstruction expert and a tire expert).

3. In the event that no formal probate is required on the decedent’s estate, appoint a Special Administrator for the Decedent Estate and publish a Notices to Creditors as required by probate law.

4. Obtain any copies of the decedent’s medical bills and records and, if necessary, and hire a medical expert who can render opinions that the decedent’s cause of death was caused by the accident.

5. Hire an economist to render opinions on the value of claims for probable support and the value of non-economic damages for grief, sorrow, etc.

6. Submit a demand for settlement to any applicable liability insurance carrier.

7. If the case doesn’t settle, file and serve a wrongful death suit within the applicable statute of limitations.

8. If the case settles or goes to judgment and the decedent’s estate receives compensation, go back to probate and follow the required procedures to close out the decedent’s estate.

PARTING COMMENTS ON WRONGFUL DEATH

As you can see from this blog, wrongful death cases can be very expensive and time consuming. What needs to be done at the beginning of these cases is to determine how much insurance coverage is available to cover damages. Sometimes there may be multiple claimants (with each retaining separate counsel) when the decedent has a large family.

When liability insurance coverage is high, then the advance of expenses by the attorney may be justified. However, when the adverse party has limited coverage and limited assets, the decision must be made to accept or reject the minimum liability limits and pursue the individual or entity in litigation in an attempt to obtain judgment against the adverse party’s assets. There is nothing that prevents the adverse party or entity to file bankruptcy in an effort to extinguish any claim or judgment against them.
Sometimes on auto accident wrongful death cases we can accept minimum auto insurance liability limits, so that we can pursue first party coverages such as underinsured motorists coverages to provide further compensation to our clients.

The reality of wrongful death claims is that in many of these cases there is insufficient insurance to fully compensate the heirs and the decedent’s estate for their damages.

Remember that criminal charges against the adverse party causing the wrongful death are separate from civil actions for wrongful death. O.J. Simpson was acquitted of murder charges for the death of his wife Nicole Brown because the standard of proof in criminal cases is beyond a reasonable doubt. But, Nicole Brown’s family prevailed in their civil suit against Simpson where the standard of proof was the preponderance of evidence, a much lower standard.

Hopefully, this blog provided you with a better understanding of what is involved with a wrongful death case in Nevada, in the event that you have the misfortune to be directly affected by one.

Las Vegas Metropolitan Police Department Will Not Respond To Non-Injury Fender Benders

The Las Vegas Metropolitan  Police Department announced Monday, February 24, 2014, that beginning March 3, 2014,officers will no longer be responding to minor non-injury fender bender car accidents.

Metro Police says officers are being stretched too thin, trying to get to these types of crashes.  According to Metro Police, an average of 250 man-hours per week is dedicated to these types of wrecks.

Officers will continue to respond to injury accidents and hit-and-run incidents.  They will also respond when a driver in a wreck refuses to exchange insurance information.

Almost everyone knows that fender bender accidents do produce injuries.  The problem with this new policy is that many spinal musculoskeletal injuries do not manifest their symptoms until 24 to 48 hours after involvement in a traumatic event.  Often these musculoskeletal spinal injuries involve nerve root irritation or spinal disc involvement as a pain generator and lead to expensive treatment and diagnostics.  Some people become chronic from these injuries.  This new Metro policy degrades the injury producing potential of fender bender accidents.  Although the police reports and accompanying citations issued by Metro is not 100% conclusive to insurance companies in confirming liability for an accident, they go a long way in resolving an insurance company’s determination of the liability aspect of a claim, so that property damage claims can be resolved in a expeditious manner.  The new Metro policy will mean that accidents investigated by insurance adjusters will take longer.  Accident victims whose vehicles are dangerous to drive, are illegal to drive, or are non-driveable will be either forced to drive their unsafe, illegal and/or damaged vehicles or be without transportation in cases where victims do not carry their own rental coverage or cannot afford to pay their deductible to have their care repaired through their own insurance.

So who makes the decision that the accident is a “non-injury fender bender?”  How will Metro decide if an accident is an injury producing accident?  For Metro to respond to an accident, does a victim need to be transported from the accident scene to the hospital, thus incurring medical bills for the transport, hospital, ER doctor and radiologist?  The bills for emergent care can average at least $3,000 to $5,000.

The number one reason that most residents of Las Vegas get involved with Metro is their involvement in a motor vehicle accident.  So, if it now takes 250 hours a week to investigate all minor traffic accidents, that doesn’t seem like a lot of time and manpower to devote to traffic accident investigation.

If you have one of these non-investigated fender bender accidents, the adverse insurance company will most likely deny the accident injury claim because there is no traffic accident report.

If injuries arise from these accidents and these cases go to trial, a jury will probably be influenced by the fact that the accident wasn’t investigated by the police and impliedly reduce the significance of the accident.

Accident victims will need to hire attorneys to initiate more litigation to resolve these claims.  Under this new policy, Metro will lose revenue because traffic citations will not be issued to the at-fault drivers.  Even minor traffic violations now have fines in the $200 to $500 range.  If it takes an officer  two (2) hours to investigate an accident, the citations issued are compensation back to the City for the use of the officer’s time.

Because of the current economy, a great percentage of drivers on our roads have no insurance or they have expired or lapsed insurance.  The fines on these “no insurance” tickets are high.  In order to reduce the ticket from a fine above $1,000.00, the uninsured driver must obtain insurance after the fact.  This makes uninsured drivers obtain insurance which is a benefit to everyone.

Metro charges $10.00 for a copy of a traffic accident report.  The two insurance companies will order one and the drivers and injured passengers usually pick one up.  Certainly, the attorney representing the injured party has to order one.  This is additional revenue to the City.

If other cities are not investigating minor accidents, this should not be the standard in Las Vegas.  The general rule is that if the accident is not your fault then you want the police to investigate.  If the accident is your fault, don’t involve the police, if that is possible.

I know that there are a certain percentage of motor vehicle accidents where the parties decide to exchange information and don’t call Metro.  In these cases there is no ability to take written statements and document the facts of how each party describes the accident at the scene, when their  memory of the events is at it’s freshest.

Let’s talk about safety.  When there is a car accident out on the street traffic will still be  flowing.  Of course, you don’t want to move the vehicles until information is gathered and photographs are taken.  This creates a dangerous situation because law enforcement is not there at the scene to direct traffic.

Let’s talk about time.  Now, on most uninvestigated accidents, the parties are required by state law to file a station report of accident at a Metro substation or a SR1 form with the Department of Motor Vehicles.  This takes time.  Your time should be as valuable as traffic officer’s time.

It is likely that on uninvestigated accidents that there will be two (2) divergent reports of the accident after a time lapse which occurs when the drivers involved file their own reports.  It is a crime to give a false statement to a police officer, so having an officer at the scene promotes truthful reporting by the involved parties.  These accidents aren’t going to be reported accurately, and there is no way to reduce bias in self-reporting an accident unless an officer is present.

How will the new policy reduce fatal accidents?  All of this according to Metro is supposed to allow police to proactively enforce traffic laws in hopes of bringing down the number of fatal crashes.  However, if you are ticketed for an accident, this should cause the sensible person to reevaluate their driving habits so that the distraction (accidents are always caused by some type of distraction) that cased the instant accident does not cause another more serious accident.

How will the new policy reduce fatal accidents?  This new policy by Metro is bad for everyone.  Previously, Metro adopted the policy that it does not respond to motor vehicle accidents that occur on private property.  That policy makes those property damage claims and/or injury claims much more difficult.  I know that Metro’s budget has experienced cuts because of current economic conditions.  However, the investigation of minor property damage traffic accidents should not be eliminated.  Many criminals are taken off the streets because of minor accidents.  They may have bench warrants for serious crimes, suspended or revoked driver’s licenses, or they may be fugitives from justice skipping bail.  There may be illegal contraband in vehicles that can be seized.  If one party to an accident was drinking before an accident, then the investigation will take that driver off the street so that he can’t cause another accident.

Obviously, Metro has brought attention to their budget cuts by adopting this new policy.  I don’t see how this new policy promotes safety and prevents additional accidents, because when people causing accidents know the police won’t be involved, they are most likely to leave the scene or be inclined to give incomplete or false information to the victim.

Did you know Metro no longer investigates house burglaries?  The victim must fill out his own report.  What service will be cut next?


SEO Powered by Platinum SEO from Techblissonline