TOV Injury and Safety Blog

Corporate Assault on Safety

The corporate-financed and Republican-engineered assault on safety continues, according to recent articles in the national media.  In Missouri, newspaper accounts of the death of 62 year old Dorris Edwards on her way home from visiting relatives over Thanksgiving, highlight some of the problems encountered when regulators refuse to act in the public's interest.

Ms. Edwards was killed by a rookie truckdriver on his first cross-country trip.  He had been driving nonstop for 8 hours and in the cab for nearly 12.  His "instructor", a 22 -year old with one year of driving experience, was asleep in the berth behind him when his groggy reactions resulted in the death of Ms. Edwards. 

Medical Research on malpractice

Two recent studies shed additional light on the frequency and success of medical malpractice claims. Contrary to the suggestion that many doctors are unfairly victimized by malpractice lawsuits, a recent study by the University of Michigan confirms that juries show an "overwhelming" tendency to side with physicians in malpractice litigation.  The authors compiled the data from seven prior jury verdict studies published between 1989 and 2006, and then presented it to objective expert physicians in the relative fields.  While the experts found that roughly half (50 percent) of the victims' claims had merit, the jurors' verdict had been for the health care provider in 80 percent of all cases.

 

This research supports the victims' rights' representatives who have been claiming for years that doctors are not unfairly victimized by malpractice:  medical insurers have used that argument for decades to push for "malpractice reform", without reducing physician premiums.

Asked to comment on the study, Michelle Mello, an associate professor of health policy and law at Harvard University, argued that it is malpractice victims who are being victimized a second time by current litigation rules and procedures.  Harvard published a study several years ago documenting the fact that only one of eight malpractice victims receives proper compensation.  Mello thinks that the only solution to this problem which is fair to victims, involves taking these decisions away from juries and allowing them to be made by qualified experts who are independent of the medical profession.

In any event, these studies document the importance of retaining a highly experienced and specialized attorney.  They also confirm the wisdom of fully investigating potential cases before putting client finances or medical care relationships at risk. 

Structured Settlements

Many personal injury lawsuits are settled by the purchase of an annuity contract that pays the injured party in increments over time, rather than in a single lump sum.  In some cases, state law even requires that a verdict be satisfied by the purchase of such an annuity, rather than by a lump-sum payment.  It is important that a client who is considering a settlement offer understand just what is involved in "structured settlements".

            First, clients should realize that these structures are favored by the courts and even by the government:  as a result of several factors including effective insurance lobbying, annuities used to fund structured settlements receive favorable tax status, for example.  If an annuity is purchased by the Defendant and not purchased by the injured person or his agent(s), the income earned post-settlement by the insurance annuity company before it is paid out in scheduled payments to the recipient, is tax free to the injured person.  If the injured person put the same money into his own account or investments at the time of settlement, every dollar it earned would be taxable to him.  All other matters being equal, this would result in a smaller investment return for a cash settlement.

Trial or Settlement? What are the chances?

Many new clients are very curious about the likelihood that their claim will end up in trial.  In this Post we will attempt to address this issue as thoroughly as we can, in the absence of a specific case context.  In this analysis, keep in mind that there are two stages of litigation:  the "active" stage that occurs after a suit is filed, but before a trial is actually held (this will typically last 8 months to a year); and the actual "trial" stage, when the parties, witnesses and jurors actually attend court and evidence is presented (usually a Michigan civil action tried by an experienced attorney will last only 3-20 trial days, depending on the complications, the number of parties and witnesses, and the work ethic of the judge).

         First, just as the Courts have created Plea Agreements to encourage criminal cases to reach a conclusion without the time and expense of trial, they have also created devices and rules to encourage the negotiated settlement of civil actions.  When Mr. Thompson first entered practice in 1978, most cases were either settled early by an experienced adjuster, or they did not settle until the eleventh hour.  It was highly likely that an injured person would not be offered a reasonable settlement until after the jury selection process had begun.  Experienced adjusters would wait to see if the injured person had the stamina to wait out 2 or 3 years of litigation and might also wait to get a look at the potential jury.  Those days are long gone.

        Today, hard-working judges will have simple injury cases ready for trial within 8-10 months of filing.  Even complicated medical malpractice or product liability cases are likely to be assigned a trial date within 15 to 18 months of filing.  Injured people are also more likely to have financial support during this period, in the form of No Fault PIP benefits, for example, that enable them to "outlast" the insurer.

         During this active stage of litigation prior to Trial, the Michigan courts will routinely schedule a "Facilitated Mediation", forcing the parties to come together and discuss settlement.  This one-day event is usually supervised by an experienced attorney who is trained to help open and maintain channels of communication between hostile parties.  There are some excellent Mediators available in this region, including John Racine, John Blakeslee, Chuck Judson and Jon Muth, just to name a few.  Mediation is often a hollow gesture, and may be a waste of time in the case of particular attorneys and adjusters.  It may have the effect of bypassing an attorney or adjuster who is more interested in pushing the process than in achieving a fair outcome, though, when the parties are gathered in one room.  It can also force a party to actually analyze the adversary's claim or defense for the first time.

           If Mediation is unsuccessful, the Court will order parties who have prepared for trial to present their proofs to a neutral, experienced panel, in an abbreviated fashion.  This panel is then charged with recommending a fair settlement which the parties have 28 days to accept or reject.  Each party makes this decision privately, and if both accept, the case is concluded at that time.  If either party rejects, the case continues forward, however, if the rejecting party does not ultimately improve upon the recommended settlement by at least ten percent, he or she will be charged with the other party's actual attorneys fees and costs.  Thus, while the Evaluation is not "binding" it definitely carries teeth and may cause the parties to deliberate hard with regard to the soundness of their position.

         Throughout this period, the parties are also free to carry on negotiations, either formally or informally, and many do.  Some parties will utilize "Offers of Judgment" to enhance the impact of a settlement position with potential sanctions.  Others--especially more experienced and confident attorneys, will strive to keep a door open to negotiations throughout litigation, since most clients would prefer to achieve closure at the earliest date reasonably possible, with the fewest litigation expenses.

         Depending on the nature of the case, it has been our experience that many adjusters today tend to be less experienced and less professional than they were thirty years ago.  Some companies employ very inexperienced persons in this role who want to wait and see what a Case Evaluation panel thinks about the likely verdict and to use the third-party evaluation to justify any settlement offered.  As the Michigan Supreme Court has trended toward favoring insurers, adjusters have also become more likely to demand that every avenue of potential summary disposition be explored.

         As a result, it has been our experience that fewer cases actually go to trial, today, but cases are more likely to reach the Case Evaluation stage, particularly if they involve substantial damages.  We sense that insurers are intentionally waiting to see that the injured person has the stamina to withstand litigation and that his or her attorney is capable of proving a significant case, without stumbling over any proof problems, before a reasonable settlement will be offered.

         Looking at our own caseload, and comparing it with the cases we help to Mediate or Evaluate, it appears that fewer than one case in ten civil actions actually results in a trial.  This is not to say that your attorney does not need to be experienced in trial practice, however, as insurers are good poker players:  they will bluff an attorney or client who appears unwilling or unable to prove a case.  Not surprisingly, the surest way to end up in trial is to fail to prepare for it or to telegraph a desire to settle.  If both sides are well prepared and experienced, most cases settle simply because both sides can make an independent assessment of their likely outcome, and they negotiate to achieve a certain result that avoids substantial expenses and risks.

          The circumstances of the injured person also have a significant impact on the likelihood of settlement.  A person who is comfortable gambling is more likely to "roll the dice" on an outcome defined by a jury of strangers.  A person who prefers predictability or who prefers greater privacy will be more likely to compromise.  Settlement can also be influenced by factors that are highly individual to the specific case:  is there a Defendant doctor who refuses to authorize settlement?  To the contrary, has the Defendant employed his own attorney who is insisting that the insurance carrier "step to the window" and protect the victim and the Defendant's assets?  In employment cases, we have found that settlement is often obstructed by the nasty personal feelings engendered by an alleged wrongful discharge or sexual harassment.  Oddly, even a routine employment claim may generate more hard feelings than are generated from a motor vehicle accident that has caused a death.

         The exact nature of the civil claim can influence settlement in other ways.

Medical malpractice insurers are notorious for eschewing potential settlements prior to the eleventh hour, but then feverishly pursuing a confidential settlement to avoid publicity.  Product and professional malpractice cases may involve a manufacturer with a significant self-insured deductible.  Podiatrists usually have a policy that provides only a single limit of protection for defense AND indemnification, meaning that the defense attorney often bills the insurance coverage down substantially before any payment is offered to the victim.

            If a person has purchased only a small liability policy, that factor will also influence the timing of settlement negotiations. Needless to say, the typical auto insurer is less willing to incur $30,000.00 of expense costs to protect its $20,000.00 of coverage than it would be to protect a policy that placed $200,000.00 of its own money at risk. Unfortunately, in a series of decisions handed down by the Michigan Supreme Court, the potential exposure of an insurer's policy holder to an "excess judgment" not covered by insurance is far less likely to influence the insurer's decision-making.  Insurers in other states are more readily held to a standard of "good faith and fair-dealing" in protecting their insured's assets from an excess judgment.

         REGARDLESS OF WHO THE ATTORNEY IS, CERTAIN RULES RELATING TO SETTLEMENT ARE SET BY THE COURT:

1.  SETTLEMENT IS ALWAYS THE CLIENT'S CHOICE AND NO CLIENT CAN BE FORCED TO SETTLE.

2.  IF AN ATTORNEY THINKS THAT A CLIENT'S SETTLEMENT DECISION IS A CLEAR ERROR, THE ATTORNEY'S REMEDY IS TO WITHDRAW FROM THE CASE:  NO CLIENT SHOULD EVER BE COMPELLED TO SETTLE TO SATISFY HIS OR HER ATTORNEY.

3.  ANY SETTLEMENT PROPOSAL MUST BE RELAYED BY THE ATTORNEY TO HIS CLIENT:  IT IS NEVER APPROPRIATE FOR THE ATTORNEY TO MAKE A SETTLEMENT DECISION WITHOUT THE CLIENT'S INPUT. 

4.  A CLIENT'S ULTIMATE SETTLEMENT DECISION SHOULD BE BASED UPON HIS OR HER OWN WELL-INFORMED SENSE OF JUSTICE AND RISK, TAKING INTO ACCOUNT A THOUGHTFUL, PROFESSIONALLY-INFORMED ANALYSIS OF THE RANGE OF LIKELY OUTCOMES AT TRIAL.

The Cost of Liability

 

         Whenever the Chamber of Commerce or the insurance industry wish to take a cheap shot at injured people or their rights, someone typically invokes the cost of liability insurance coverage.  It is extremely common for insurers to invoke this bogeyman when consumer groups or legislators question the cost of insurance coverage.  In fact, the number of liability claims in Michigan, per capita, is down substantially since 1990, but the cost of liability insurance has continued to rise.  The New York Times recently reported that several of the largest insurers are recording record profits, some approaching 30 percent, per year.

          Most people have no idea who to believe in these matters. There is one simple test for Michigan residents, though, that may help to demonstrate where your insurance money goes.  Whenever you buy or renew an auto policy, you receive a Declaration Page.  This page shows what coverages you have purchased and what each of those coverages costs you for the coverage period.  If you examine that Dec Sheet--and the two or three you received immediately before--you will be startled by what you learn.

         In the case of most car owners, about two-thirds of their auto insurance premium is related to the cost of potentially replacing the vehicle. Collision and comprehensive coverage for $20-60,000.00 vehicles is prohibitively expensive, especially when they contain expensive electronic parts and are made of plastic and fiberglass [and probably overseas].  Of the remaining one-third of your premium cost, for most insureds three-fourths of that cost is related to ordinary medical and catastrophic medical coverage or potential wage loss.  For the average owner/driver, only a very small part of Michigan's mandatory auto insurance coverage is attributable to liability exposure.

             Another proof of the proportionate cost of liability coverage is the relative cheapness of uninsured and underinsured motorist coverage.  These are coverages an owner/insured can purchase to protect his family in the event a family member is injured by a person who has not purchased adequate liability coverage.  In most cases, adding this coverage to an existing policy costs less than $50.00 per coverage period:  far less than the cost of collision or medical coverage.

 

Accidents on Snow and Ice

          The anti-consumer, pro-insurer bias inherent in the Michigan Supreme Court's majority has been demonstrated again recently, as the Court has addressed the issue of "black ice".  For years, the appellate courts have allowed a motorist who claims to be surprised by "black ice" the opportunity to defend any loss of control on that basis.  If the motorist loses control under winter conditions and crosses the centerline to strike an innocent motorist, insurers routinely claim on the motorist’s behalf that the cause was "black ice".  Despite clear legal direction that a motorist must adjust his or her speed to the prevailing weather conditions, the appellate courts have allowed insurers defending claims to offer a defense based on "sudden" and "emergent" exposure to unexpected slippery conditions.

         Despite this attitude toward the insurers of motorist defendants, the court has utilized the "open and obvious" defense to premises liability claims to deny the rights of a person who falls on black ice. This majority of Justices has ruled that if a person is a Michigan resident and has lived through at least one Michigan winter, he or she cannot claim to have been surprised by the presence of black ice.  Regardless of the circumstances of the fall, the severity of the injury, the ambient lighting or any other condition that may have contributed to the failure to perceive the ice, it is highly unlikely that the Michigan Supreme Court will allow his or her claim to proceed.  There are a handful of exceptions, usually relating to a landlord's statutory duty to provide a safe rental.

 

Independent Medical Examinations

         Most people who have been injured and are receiving insurance benefits are closely monitored by the insurance company paying the benefits.  If a lawsuit is filed, or if the company wants to test the injured person's staying power, the adjuster is likely to ask for an Independent Medical Examination.  Needless to say, "independent" is a misnomer, as it implies that the physician conducting the examination is without bias. In fact, with rare exceptions, insurers don't select "independent" doctors and doctors who are paid by insurers to conduct these examinations know "where their bread is buttered".  These exams are a legitimized opportunity for the insurer to investigate the disabled person's medical condition thoroughly and then to put a spin on the findings that is most favorable to the insurer.

         Unfortunately, consumers have few remedies in the context of Independent Medical Exams (IMEs), and they can be a significant invasion of privacy and a significant source of difficulty.  Under most policies and typical law, the disabled person must attend the IME or his benefits may be terminated.  An attorney can attend the IME with the disabled person, however, depending on the situation this may be an expensive, invasive, or at least awkward-and-ineffective remedy.  Many physicians who might have maintained an open mind are extremely discomfited by the presence of an attorney and this fact may guarantee a negative report.

       We have had some success with the local courts in terms of limiting the extent of IMEs or the distance that the disabled person must travel.  Even though the insurer must normally pay all of the expenses associated with such an exam, it can be unreasonable to force a disabled person to drive past several hundred physicians in order to be examined by the "reliable" doctor routinely chosen by this insurer. 

         Cases involving neuropsychological injuries can be especially troubling, since many defense IME psychiatrists or neuropsychologists want to administer a battery of tests that lasts for a day or longer and may attempt to insist that no attorney be present.  They may also insist on performing the test in close proximity to a treater's prior testing--a factor that can result in misleading and false evidence of improvement.

          Disabled or injured persons who receive notice of an IME should contact a personal injury lawyer for free advice immediately.  Almost all injury lawyers will provide a free consultation on an issue of this nature, and it would be worth the time spent.  It may be that the date should be moved, that the location can be moved, or that the examination can be limited--even without formal intervention.  It may be advisable for an attorney to attend the IME, or it may be necessary to evaluate what records and films should be gathered and by whom. It is also possible that the attorney can reassure the patient about the reputation of the "independent" examiner.

         An attorney may recommend that you make your own record about the time and content of the exam in order to demonstrate that it was relatively superficial.  He or she may also recommend that the patient be accompanied by a third person.  The patient should also be warned about the possibility that in taking his "history", the IME physician may attempt to conduct an inappropriate examination of the patient in an attempt to bolster his employer's defense to providing benefits.

         ANOTHER KEY ISSUE FOR PATIENTS TO KEEP IN MIND IS THE FACT THAT UNDER MICHIGAN LAW, THE IME DOCTOR OWES NO DUTY TO THE PATIENT.  In several past cases, IME patients who were mis-diagnosed or undertreated as a result of IME examinations have attempted to sue the IME doctor for malfeasance or malpractice.  Michigan "reform" courts have held that no physician-patient relationship exists between the IME doctor and patient and that the doctor therefore owes NO duty to the patient.  If he is wrong in his analysis, or leaves something out of his examination, the patient has no recourse against him.   

Electronic Data Recorders

 

         Most motorists don't realize that they have something of a "spy" in the engine compartment.  If you drive a General Motors vehicle, or a more recent make of Ford, it is highly likely that a mechanism connected with your air bag creates a snapshot of your vehicle's operation in the seconds before any event that triggers the airbag.  If you are operating a heavy-duty vehicle of fairly recent vintage, it is highly likely that it contains a computer that is designed and programmed to preserve similar data.  In the case of snowplows, fire engines and semi-tractor trailer units, for example, even a hard-braking stop will "capture" the speed of the vehicle immediately prior to the capturing event.

       In some cases, this data is captured "permanently".  In other cases, it may be over-written after a certain number of braking events or after a certain number of engine starts.  We have found that while these computer systems are not foolproof, they tend to be more reliable than an at-fault driver when it comes to estimating speeds, for example.  It is imperative that anyone investigating a motor vehicle incident thoroughly investigates the potential content of an electronic data recorder or "black box".

         Most foreign-manufactured passenger vehicles do not contain an EDR.  In the case of some heavy-duty vehicles, the owner can determine what information will be preserved by stipulating that the computer not be activated or partially disabled.

       EDRs were originally installed by General Motors in an effort to defend consumer claims of manufacturing or design defect.  They can also be useful in some commercial applications to assess whether the vehicle's operation is consistent with regulations governing hours of service, speed and hours of rest.  We have found that even investigating police agencies may overlook the potential for EDR evidence, if the officer is not highly familiar with the concept and willing to explore what is available.  For example, in one of our recent cases, the Sheriff's Deputy did not preserve evidence temporarily captured by a snowplow that struck a pedestrian because he did not understand that the simple act of braking hard would activate the system’s memory.