I started working on personal injury cases prior to going to law school. I have witnessed many changes in the insurance industry, the law, and attorney advertising that have impacted personal injury claims over the years. I have argued many cases before the Nevada Supreme Court that have created new case law on automobile insurance. I have witnessed the implementation of the arbitration and the short trial and mediation programs, which have made Alternative Dispute Resolution a viable alternative to jury trials in resolving Personal Injury cases in the state of Nevada.
I can remember a time, after I was admitted to the Nevada bar, when Arbitration was never used, and all contested personal injury cases were resolved through normal litigation. Alternative Dispute Resolution was seldom used to resolve any personal injury case. These cases either settled or proceeded to trial.
When the cap on statutory arbitration was raised to $15,000.00, personal injury attorneys started using the Arbitration statute in an attempt to resolve smaller personal injury cases. Then came the court annexed mandatory arbitration program. The cap on court annexed arbitration was raised eventually to $25,000.00 and then to $40,000.00, and arbitration is now mandatory and non-binding for all cases with damages of under $50,000.00.
I was a member of the Nevada Supreme Court Advisory Committee for the short trial program. I tried the first case in the short trial program that used a Pro Tempore Judge (Senior Judges handled the first few cases that were tried in this program). The short trial program in Nevada is certainly working and has a high resolution rate. Some insurance defense attorneys still insist on exempting cases from the short trial program. Now, most short trial cases settle before they ever get to trial. I had one short trial in 2011that settled the morning of the trial in the courtroom. All short trials that I had set for trial in 2011 settled.
In the last 10 years, I started using Mediation to resolve cases. I learned that, if you do your homework ahead of time and determine what deals that you can make with health insurance companies and providers on their liens before the mediation hearing, you can give your client a an accurate estimate of what they will net on any mediation offer. This greatly increases the probability that a case will settle as a result of the mediation hearing. All cases that I had set for conventional trial in 2011 settled as a result of mediation.
Alternative dispute resolution is definitely the way to go on PI cases under $50,000.00, and mediation is the way to go on cases over $50,000.00.
The medical management of musculoskeletal injuries has also evolved in the last 30 years.
Over the years, there have been medical tests, like diagnostic utrasound, which attempted to diagnose musculoskeletal injuries that had a short life span. I have seen the evolution of pain management as a method of treating spinal injuries. The cost of pain management is very high. It has changed the personal injury business tremendously. We now have plasma rich protein injections (PRP) to promote the healing of joint injuries and digital motion x-rays and prolo injections to diagnose and treat ligamentous injuries of the spine. There are even a few Laser therapy facilities here in Las Vegas. Discograms are now the litmus test for diagnosing the integrity of an intervertebral disc prior to spinal to surgery. I am sure that new medical procedures and techniques will be applied in the future to help us to diagnose and treat neck and back injuries.
Jury trials on personal injury cases have become really expensive. On a recent case I had an expert charge for an IME and then billed $3,000.00 per inch for his review medical records. Then he billed for deposition preparation on a deposition that was set by the defense. We pay these fees because we have no choice. That case settled in mediation, so I was reimbursed for these advanced expenses. The costs for expert fees have been going out of control. I had one medical expert tell me that one large personal injury firm in town reserves his time for a week prior to trial, and they pay him to close down his office so that he can participate in trial preparation. Most personal injury firms can’t afford to pay these expert fees. We need to get experts to accept more reasonable fees. I have learned that everything is negotiable, so I try to negotiate with experts on their fees in the interest of helping my clients.
Over the years I have learned that auto accident victims with soft tissue spinal injuries don’t get adequate compensation, especially the ones that have been involved in multiple accidents and/or so-called low property damage accidents. Over time a degenerative process occurs from these old spinal injuries; and, in many cases, the victim’s spinal condition becomes chronic and eventually they need spinal surgery.
Many clients overdose and die from narcotic pain medications and muscle relaxers, or from the complications associated with their use. Many clients become addicted. Long term use of non-steroidal anti-inflammatory medications will cause kidney disease. These are attendant complications of drug use for which insurance companies give no compensation or consideration whatsoever. This needs to change.
Insurance companies have forced claims into litigation on what they determine are low impact cases. Many attorneys don’t take these claims. By experience I do know absolutely that victims do get injured in these accidents, sometimes seriously. Some require spinal surgery. Nobody that has been involved in the personal injury business for any length of time can legitimately take the position that people don’t get hurt in these accidents. These are usually time consuming and low profit cases. Juries don’t like these cases. Insurance defense attorneys like to take them to trial because they are easy to defend. We need to keep fighting for our clients on these cases.
We now have attorney advertising which promises immediate compensation. What is not disclosed in these commercials is that the compensation comes from a loan with a minimum interest rate of at least 40% per year (and perhaps as high as 150% per year), when you factor in what are called “administrative costs.” On an loan of $500.00 from an NJA approved lender, the client owes $799.00 after just one year. Other rates are higher. I know of one case that on the original loan request of $50,000, the lender loaned $100,000.00, and the loan balance soared past a million dollars in a few years. The available insurance is $1,000.000.00 and several medical providers seek compensation for the care they gave to the injured client. The settlement funds will, eventually, be distributed by Court Order.
Many people have heard that a case’ value is “three times the medical bills” That may have been true in the past in some cases. Now one major insurance carrier in Las Vegas is only offering 1.3 to 1.5 times the medical bills on good cases. They defend their cases with in house counsel to save legal fees. We need to raise this standard of compensation so that victims of personal injury accidents are fairly compensated for the injuries caused by negligent drivers.
What I see in the personal injury field is that large advertising firms won’t reduce their fee to settle a case, but they want providers to take a considerable reduction to promote settlement. These firms don’t disclose their fees during the settlement negotiations. I’m for full disclosure. If an attorney is going to ask a provider to cut it is only fair that it only fair that the attorney be willing to take a commensurate cut on his fees.
If you’re in this business long enough, issues will come up from past cases that take up a lot of your time. Even though providers are paid, years later later you will get monies owed statements or status requests that you have to deal with. Occasionally, accounting mistakes are made. So, you must give proof to the provider that they were paid. This takes up lot time. The longer that you are in this business, the more of these types of errors you receive. That’s why we need to keep good accounting records – so, administrative problems on personal injury cases can be handled without problems or inconvenience to the clients.
We need to keep our hard files for 7 years from the time that the case closes. This is a big expense. You need a storage facility that is usually not at the same location as your office. You need an indexing and retrieval system. Retrieval issues come up quite often. This involves a tremendous ongoing time and expense. Then after the seven years you have to shred these closed files. I think that the bar needs to revisit their storage requirements. Perhaps our rules can be changed by our legislature, so that we can include these ongoing expenses as costs to the prevailing party after litigation.
Now we have to deal with stricter requirements when there are actual or potential Medicare liens. This is also taking up much of our time. I have one case that has been pending for years. It was a food poisoning case. The client died. So the case settled a year and a half ago and after the Final Detail Settlement form was sent in, we received a new lien. We had previously received a new no claims paid letter. The new lien came back listing tens of thousands of dollars of physical therapy bills. Of course, you don’t get physical therapy for food poisoning. Anyway, this had to be appealed leaving this case undone. And after we get that resolved, the Probate case also has to be closed. Does the reduction that you receive on the Medicare lien compensate the attorney for all this time involvement? The federal government should have a vehicle for reporting these war stories.
How about our minimum automobile liability limits of $15,000.00 per person / $30,000.00 per incident? Isn’t this a ridiculously low limit for financial responsibility. Most people these days can’t afford uninsured motorists or underinsurance coverage. Car accidents can definitely can be life changers. The adverse driver can extinguish your claim in bankruptcy. Even our personal injury clients are filing Bankruptcy because of the current downturn of our economy. Are personal injury claims really an exemption in Bankruptcy? Extra work is needed when any party files for bankruptcy. It’s part of the system, but takes up many hours and, sometimes, even Court appearances in Federal Bankruptcy Court. You really earn your fee on these bankruptcy involved personal injury cases. We need to raise the financial responsibility limits in Nevada as was recently attempted by some in the State Legislature.
One lesson that I have learned over the years is that you should always be honest and give full disclosures. Don’t hide anything. Don’t try to take advantage of anyone. Know where the line of ethical responsibility is and don’t cross it. Try to know if you have a bad case early on. Get the facts so that you can evaluate the value of the case for settlement purposes and let the client know if there are issues with the case that will affect its value form the beginning. Don’t cross the line of ethical responsibility just to win a case.
Today, the big advertisers aren’t trying personal injury cases. Their litigation cases are referred to litigation groups perhaps without the actual knowledge or consent of the clients. When was the last time that you saw any “heavy hitter” or “immediate compensation” attorney in courtroom? The theory is that if you have enough cases, you don’t need to go to court: you can get someone else to do that for you. We need to change this advertising. If a fee agreement is executed, the attorney should not be able to transfer the case to someone else for litigation without giving up his contingency fee. I don’t like this change. It gives us all a bad reputation.
These are only a few of the changes that I have noticed in the management and prosecution of personal injury cases in the last 30 years. I will cover more of these changes in another posting.