Vegas Personal Injury Law Blog

Recently, I have had a number clients who have been involved in auto accidents where they have been partially at fault for an accident and have not been treated fairly by their own insurance company.

NRS 687B.385 states: “An insurer shall not cancel, refuse to renew, or increase the premium for renewal of a policy of motor vehicle insurance covering private passenger cars of commercial vehicles as a result of any claims made under the policy with respect to which the insured was not at fault.”

What is an “at-fault accident”?

This statute was interpreted by the Nevada Supreme Court in the case of State Division of Ins. vs. State Farm Mut. Auto. Ins. Co., 116 Nev. 290, 995 P.2d 482(2000).  This case interpreted NRS NRS 687B.385 to include accidents in which the insured was 50% at fault or less.  This case put NRS 687B.385 in conformance with NRS 41.141, Nevada’s comparative negligence statute.  This decision means that an insured is at fault for an accident when his liability for a two-vehicle  accident is exactly 50/50, even though he can still recover 50% of his damages from the other driver under NRS 41.141.

Therefore, an assessment of 50% liability (or more) by your insurance company for an accident as an at-fault accident and  will probably result in an increase in your auto insurance rates.  If you are involved in another at-fault accident, your policy will probably be cancelled. Let me give you a real life example.

A vehicle making a lefthand turn going southbound to eastbound at an intersection enters a very wide lane, and stays to the left hand side of that lane.  Another vehicle, at about the same time, traveling northbound makes a right hand turn and enters the same lane but stays to the right hand side of the same lane.  The driver of the vehicle on the right then comes face to face with roadway signs indicating that the roadway lane is narrowing and she must merge to the left.  She does so and collides with the other vehicle traveling on the left hand side of the lane.

Both drivers are insured by the same insurance company. The vehicle on the right was forced to merge left because the lane narrowed into a single lane width. Roadside hazard/warning signs forced the driver on the right to merge to her left. The vehicle on the left was already on the left side of the roadway and did not have to change it’s position within the lane to enter the narrowed portion of the lane.

Anyone reading this fact pattern would automatically assume that the driver on the right hand side of the travel lane is more at fault for this accident than the driver on the left.  However, the insurance carrier, who was the same company for both parties, determined liability at 50/50 and assessed both drivers with an at-fault accident and raised both drivers’ insurance rates.

The insurance company’s assessment of 50/50 liability for this accident is unrealistic because:

1. The driver on the left had no duty to anticipate the fact that the  driver on the right was going to swerve into her vehicle;
2. If the vehicle on the right did use her left hand turn signal, the vehicle on the left, could not see it because the vehicle on the right was not in front of her vehicle; and
3. The accident occurred eighty-six (86) feet east of the intersection where both vehicles entered the same roadway.

According to Nevada case law the adverse effect of a 50/50 assessment of liability will result in the increase of both drivers’ insurance rates for an at-fault accident.  In the event that there was  an assessment of 51/49 liability in favor of the driver on the left and against the driver on the right, the insurance company could not raise the rates for the driver on the left for an at fault accident.

Obviously, there is no exact science to assessment liability for any accident, however based on the facts and circumstances of this accident, a 50/50 liability assessment is completely unrealistic.

So, why did the insurance company raise the rates of both drivers? The only reason is for an economic benefit. Raising the rates of both drivers results in the insurance company recouping its losses for this accident more quickly from the increased insurance premiums from both drivers, as compared to raising the rates for only one driver. And, the insurance company only has to pay 50% of each party’s property damage, thus forcing the insured drivers to pay their own collision deductibles in order to have their vehicles repaired.

After the insurance company was asked to review the facts and circumstances surrounding this accident and to change it’s liability decision by one percent in favor of the vehicle on the left, they refused.

Now, if in the future, liability can be determined by a trier of fact in favor of the vehicle on the left, will the insurance company return the driver on the left’s increased premiums and collision deductible?  Did the insurance company act in bad faith concerning their liability apportionment decision?

Therefore, if you are in an at-fault accident where your insurance company assesses liability against you at 50/50 (or more), you will be assessed with an at fault accident. You should also  be aware of the adverse consequences of increased rates and cancellation of your policy.  You should also consult an attorney for legal advice concerning the insurance company’s decision.

If you or your children are involved with a fender bender accident where you are at fault, or partially at-fault, and  nobody is hurt, and law enforcement isn’t involved;  you should consider working out the property damage with the other driver to avoid increased insurance rates and/or cancellation of your policy.

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.

1. In order to maximize your recovery on any auto accident personal injury case you must seek appropriate medical attention immediately after an accident. A delay of only a few days in obtaining medical treatment will reduce the value of your claim by insurance company standards.

2. In the event that event you are not at fault for an accident, insist that a law enforcement be called to the accident scene.

3. In any event that you are at fault for an accident, it makes sense to a try to negotiate with the other driver to determine if he wants to handle the claim outside of auto insurance. This can be helpful in minor accidents, because even minor accidents are considered at fault accidents by your insurance company. These small accidents will add up and will eventually affect your insurance rates. If you can work with the other driver on property damage, assuming that there is no injury from the accident, this can save you the expense of increased insurance rates and can expedite the repair of the other driver’s vehicle.

4. Especially in any questionable liability situation, do not admit fault for the accident. This can be considered an admission. Your statements can be admitted into evidence in any legal proceedings as an exception to hearsay.

5. If you do not obtain follow-up medical treatment after your emergent treatment, this is a red flag to an insurance company.

6. You must cooperate with your own insurance company. You are required, as a condition of coverage, to answer their questions about the accident. You’re not required to answer any questions from the other side’s insurance company. If you have an attorney, do not give any statements to the adverse insurance company or sign any forms without the approval of your attorney.

7. Do not attempt to settle your case until all necessary medical expenses past and future have been determined. I had a consultation recently involving a auto accident injury claim, where a lady settled her injury claim with the adverse carrier for $1000, despite the fact that she had continuing low back pain and pain radiating down into her lower extremity. Then, a few weeks after the first accident she was involved in a second motor vehicle accident. Obviously, this decision to settle the first accident claim was not well thought out.

8. Keep track of all of your medical expenses. Ask your health-care providers for copies of your bills so that you can determine the costs of medical treatment for your auto accident. You may be surprised to learn to how much things like MRIs, CT scans and pain management procedures cost.

9. In the event you receive a traffic citation as a result of an accident do not pay the fine. Try to get an attorney to handle the ticket for you. In most cases the ticket can be reduced to a parking ticket and nolo plea can be entered. With this plea the ticket cannot be used to determine liability in a civil proceeding.

In my 25 years of experience as a personal injury attorney, I have dealt with many of the healthcare facilities in the Las Vegas area, who treat patients that have been involved in accident cases.  

Some physicians that deal with personal injury cases on a regular basis are aware of the following office procedures that can be extremely helpful on personal injury claims and lawsuits:

1. A Clean Bill.

It is extremely helpful for a personal injury attorney to have a clean bill.  What this means is that the bill contains only the dates and amounts of all charges by the healthcare provider.  A clean bill does not contain any information on health insurance payments and also contains a figure which represents total charges for services rendered by the provider for the accident.  In the event that the attorney receives a bill with insurance payment information, this devalues a claim because the adverse carrier knows that first party insurance has paid all or some of the patient’s bill.  If an adverse adjuster knows that bills are paid by first party insurance, such as auto med pay with no right of subrogation, he will offer a lesser amount to settle the claim.  Also, an attorney cannot file any documents with the Court that contain a patient’s social security number.  This data must be redacted. Don’t include the patient’s social security number on your bill.   Bills that are submitted to the Court as evidence in a personal injury case must also be redacted for insurance information.

Health insurance claim form(s) are particularly problematic for personal injury attorneys because the insurance information is replete throughout the form and redaction of insurance information is a very time consuming process.

For these reasons, personal injury attorneys love clean bills.

2. Organization of a personal injury medical file.

For reasons stated in No. 1 above, all information regarding insurance should be placed in one section of a medical file.  Once again, the reason for this is because all insurance information must be redacted from medical records which are the subject of a trial.  If all of the insurance information is kept in a separate section of a file and segregated from the medical records, this is very helpful to the personal injury attorney as far as redactation of records is concerned.  Intake forms often include insurance information mixed in with patient history and symptomology.  Redactation is a simple process when all insurance information is segregated.  We can just eliminate those pages from our trial exhibits.

3. Medical necessity.

In order for medical bills to be admitted into evidence, there must be a statement by the healthcare provider concerning the medical necessity of the treatment.  In other words, the treatment must be medically necessary for the treatment of injuries resulting from a particular accident.  Generally speaking, this statement of medical necessity is very helpful to an attorney during an arbitration or a short trial.  In these proceedings, it is not necessary for the doctor to actually appear to give testimony in the event that his medical records contain a statement of medical necessity and other evidentiary requirements.  The doctor in his discharge report or in his medical records can simply state that, “In my opinion, all treatment rendered to the patient (from first date of treatment to last date of treatment) was medically necessary to treat injuries that the patient received in her accident of (date of accident).

4. Medical causation.

In order for a Plaintiff to prevail in a personal injury case, medical evidence must contain a statement by a physician concerning causation.  That statement can be, “It is my opinion to a reasonable degree of medical probability the injuries that I diagnosed and treated the patient for were caused by the accident of (date of accident).”  The healthcare provider can simply include such a statement in his records or narrative reports.
5. Reasonable and Customary Charges.
This statement is extremely helpful on mediation, arbitration and short trial cases.  

In order to admit a medical bill into evidence, the attorney must lay a foundation that the charges for the medical treatment were reasonable in amount and are customary charges for same or similar services in the Las Vegas area.

The physician in his narrative or medical records can once again simply state that, “I have reviewed the billings for this patient.  In my opinion, the charges for services rendered by my facility were reasonable in amount and customary charges for the Las Vegas medical community.”  Once again, this information will eliminate the need to have the medical provider actually testify in an arbitration or short trial proceeding.  This is especially important if there are numerous medical providers.  Attorneys can’t afford to bring all providers to a short trial.  Even if you win, you can only receive $500.00 per expert.

In the event that the healthcare provider does not provide information concerning medical necessity, causation and reasonable and customary charges, the attorney can provide the healthcare provide with an affidavit that he can sign which can be used in mediation, arbitration and the short trial program, so that the medical bills and records of the provider meet legal foundational requirements for admissibility.

6. Depositions.

The healthcare provider should be prepared during deposition to testify concerning medical necessity, causation and reasonable and customary charges.  Oftentimes, healthcare providers during deposition have absolutely no idea of what their facility charged the patient.  They are ill-prepared to testify on matters of reasonable and customary charges.  Many physicians have never seen their client’s bill.  In preparation for a deposition, the healthcare provider should review his bill and the charges and be prepared to testify concerning reasonable and customary charges.  The healthcare provider should also understand and be prepared to testify concerning opinions on medical necessity and causation.  Most healthcare providers give adequate testimony concerning their records, but are very weak when it comes to their testimony in these three areas.

7. Timely Production of Bills and Records.

Most lay persons would be surprised to know how long it takes to receive medical bills and records from some healthcare facilities.  Sometimes, it takes months to receive bills and records.  Healthcare providers can charge .60¢ per page for their records.  We find that most healthcare providers are unaware of delays by their office concerning requests for bills and records.  The faster that the attorney can receive the bills and records, the more quickly he can settle the client’s personal injury claim, and pay the client’s healthcare providers for services rendered.  

We find that staff turnover is largely responsible for delays on requests for bills and records.  We have the most problems with outside billing companies that provide billing services for multiple providers.  Outside billing services are a nightmare to work with.  They are hard to reach and are more non-responsive to attorney office contact. 

When we attempt to obtain a complete copy of the entire medical file during a deposition, we are often told by the healthcare provider that they can’t provide a copy of the bills and records.  This must be done by advance notice.

With litigation, time limitations are always involved.  Therefore, if a provider delays in providing the attorney with bills and records, this may contribute to sanctions on the part of the attorney, or dismissal of the case, if records cannot be provided in a timely manner.  If the patient is still treating as his case approaches a trial date, any new records and bills must be produced prior to the discovery cut-off date, which is usually 45 days prior to trial.

8. Balances.

Information concerning total charges and balances is very important to the personal injury attorney.  One would think that an attorney just makes a call to a healthcare provider and he can immediately obtain information on total charges, and any balance that is due and owing, after payment by insurance, and after application of provider discounts.  We find that oftentimes we cannot get this information from the healthcare provider.  We need to have this information in order to settle cases, and to participate meaningfully in mediation and settlement conferences.  Once again, it should not take weeks or even days in order to obtain this information.  The attorney’s office needs access to this information.  Once again, this problem is magnified when outside billing company’s are involved.

9. Reductions.

In order to get cases settled and to meaningfully participate in settlement conferences and mediation, it is necessary for the attorney to know ahead of time what reductions the healthcare provider is willing to accept.  During the mediation or settlement conference, if an offer is made, the attorney must be able to tell the client what he or she will end up with as a net recovery during the proceeding.  The attorney does not know how much money will be offered to settle the client’s case.  Therefore, the attorney will contact the healthcare provider, usually in writing (via fax) for pre-approved reductions prior entering into a mediation or settlement conference.  Most healthcare providers are not aware of how mediations and settlement conferences work.  It appears that mediation and settlement conferences currently are being utilized more frequently in an attempt to resolve claims.

10. Custodian of Records Affidavit.

In order to authenticate medical bills and records for admissibility into evidence, it is necessary for the attorney to authenticate these documents.  This can be done with a Custodian of Records Affidavit.  My office, as a matter of procedure, sends  with every request for bills and records, a Custodian of Records Affidavit.  These certificates are sometimes ignored by healthcare providers.  Generally speaking, we receive bills and records without an executed Custodian of Records Affidavit.  The medical records, for purposes of litigation, cannot be admitted into evidence without the Custodian of Records Affidavit.  Most judges will not admit bills and records into evidence without the executed Custodian of Records Affidavit.  In order to respond to the affidavit properly, the healthcare provider should be able to provide a notarized signature by the Custodian.  Our office, as an alternative, will send two Custodian of Records Affidavits.  One has a form for notarization, and the other has a statement stating that the custodian signs under penalty of perjury.  The second alternative may not work with some judges.  Therefore, it is critical if the Custodian of Records has access to a notary for proper execution of the Custodian of Records Affidavits.

11. Arthritis Defense.

Most personal injury cases involve injuries to the neck and back.  The defense of these claims largely involves concentration on degenerative arthritis or degenerative changes in the spine.

The healthcare provider should not let the defense attorney set up their case by catching the healthcare provider off guard to comment on pre-existing degenerative changes that appear in the patient’s diagnostic tests.  For the most part, I have been informed by healthcare providers that degenerative changes such as spondylosis are generally asymptomatic.  These degenerative changes increase the susceptibility of the patient to risk of injury.  This is very important on low impact auto accident cases.  Degenerative changes may decrease the injury threshold for an accident, increase the length of treatment, and produce more chronic conditions.  Therefore, it is important for the healthcare provider to understand the concept because anytime a diagnostic test shows degenerative changes, the defense will concentrate on this in an effort to defend the case, and to attempt to show that any symptomology that the patient had post accident was due to degenerative changes, and not to the subject accident.

12. Medical Records From Other Healthcare Providers.

It is the position of our Discovery Commissioner that a healthcare provider can testify on medical records from other healthcare providers that are in his file.  There are two types of medical experts.  The treating physician and the medical expert.  The treating physician can comment on medical necessity, and the reasonable and customary nature of outside healthcare referrals without being designated as a medical expert.  These types of charges involved MRI’s, and referrals to specialists like orthopedic doctors and neurologists.  The healthcare provider should be able to testify that the services provided by these outside facilities were medically necessary, and that their charges were reasonable and customary.  Obviously, it will be necessary for the doctor to not only request a copy of the medical report from the referred facility, but also must obtain a copy of their bill.

All of the areas covered in this blawg should be common knowledge to healthcare providers that are involved with personal injury cases.  We have seen a tremendous turnover in medical facilities that deal with personal injury cases in recent years. Many of the new healthcare providers that are treating patient’s on personal injury cases, do not have much experience at litigation.  The information contained in this blawg is critical to the healthcare provider in understanding his role in assisting his patients on injury claims and during litigation.