Observers of this week's argument before the U.S. Supreme Court over the massive oil spill caused by the Exxon Valdez warned that a majority of the Justices appeared willing to further reduce the punitive damage award against Exxon.
Continue reading "19 years, 3 weeks' lost profits, and a slap at victims by the Supreme Court?" »
In Laukkanen v. Jason, the injured Plaintiff secured a verdict against the driver who rear-ended her at a stop light. Plaintiff worked as a physical therapist and had to undergo substantial medical treatment after the collision. MRI and EMG testing showed abnormalities consistent with her accident-injury claims, and she endured having to wear a back brace, physician-restrictions on her activities, numerous medical therapies including orthopaedic manipulation, and physical therapy. She provided extensive evidence supporting the limitations on her normal work duties and life activities. Despite this evidence, the insurer claimed she did not suffer a "serious impairment of bodily function", and asked the Court of Appeals to set the verdict aside.
Not only did the trial court and the Court of Appeals reject the insurer's claim of no serious impairment, it also upheld the trial court's refusal to countenance the Defendant's "gamesmanship" in secretly taping the Plaintiff and then lying about it. The Court had required both sides to disclose their evidence months before the trial (a standard scheduling order) and the Plaintiffs had also filed motions to compel the Defendants to produce any surveillance evidence. The Court criticized the Defendant for lying about the existence of this evidence, failing to produce it for more than four months, and producing other photographic and video evidence without producing the hidden surveillance until a few days before trial--too late for the Plaintiff to examine the evidence or respond to Defendant's arguments about what it showed.
The Court held that the trial court did an excellent job of carefully considering the circumstances of the Defendant's "gamesmanship" and blatant violation of the court's discovery rules. The Appeals Judges felt that excluding this imporper evidence was a proper exercise of the trial court's discretion and refused to overturn its decision.
A no fault insurer recently avoided paying compensation to a soldier who was partially disabled for 18 months after a motor vehicle collision, claiming that her injuries were not a "serious impairment".
Continue reading "Serious impairment and a Michigan soldier" »
Many consumers don't realize that if they recover damages for a serious injury, they will probably have to re-pay their health insurer (if they are fortunate enough to still have health insurance) for its out-of-pocket expenses. This is a completely logical rule and a reasonable response to the high cost of medical care, but the right of reimbursement or subrogation has been taken to an inappropriate extreme by some insurers and courts.
Historically, the right to be reimbursed was enforced through a legal principle called "subrogation". If the injury victim had a right to recover for his or her injuries from the at-fault person, that right to collect is transferred to the insurer who actually paid the medical expense. The health insurer's rights were exactly coextensive with the injury victim's rights, and if any money was collected, the insurer was obligated to pay its share of the related fees and costs necessary to recovery from the at-fault. The Courts have allowed "reimbursement" of medical expenses in this manner from the victim's entire recovery, whether the recovery is called wage loss, pain and suffering, a even a spouse's consortium. Many companies such as Blue Cross-Blue Shield continue to write their contracts to follow these principles, and many insurers will agree to cover their share of fees and expenses, even if their plan does not obligate them to, in order to encourage the victim to seek compensation and share in the recovery. Historically, a frequent compromise position has involved an agreement between health insurer, victim and counsel to share severely limited resources on an equal, one-third each, basis.
As medical expenses have made their phenomenal rise and caused a greater hardship for employers, the Courts have begun to recognize an increased right in health insurers to be more aggressive in writing contracts to give the insurer a more extensive right of reimbursement. Many contracts are now written to allow the health insurer--particularly if it is an employment-based ERISA plan--to recover the entire cost of medical expenses, regardless of limits on the victims' recovery and without sharing in the related legal fees or expenses. Under these rules, for example, if a wrongdoer has only limited insurance available, or only limited ability to pay for his mistake, the entire recovery to the victim may belong to the health insurer--even if the result is one hundred percent recovery for the insurer and no compensation to a catastrophically injured victim for lost wages, future medical expenses or suffering or loss of quality of life. This is a far cry from the more nuanced and balanced approach that had been the rule of law.
The right of an insurer to seek "repayment", "reimbursement" or "subrogation" is usually defined in the employee's Summary Plan Description and more fully in the underlying contract. If the SPD is not clear on this point, attorney and victim can check the insurer's Form 5500, which is available to the public, or demand a copy of the relevant language from the Plan Administrator under 29 U.S.C. 1024(b)(4). Various federal circuits have disagreed, but Michigan law is controlled by the Sixth Circuit which currently holds that if an ERISA plan does not provide otherwise, the "default" rule is the "make whole" doctrine, which allows subrogation only where the victim's recovery includes his or her own loss and insurer-paid medical expenses. Needless to say, most insurers have adequate legal support to assure the most aggressive grab and do not fall in to the "default" category. If the write their contract to entitle themselves to complete repayment without sharing in fees or costs, the victim's right to wages, future medical expenses, or non-economic damages may be waived even before the catastrophic event.
The New York Times reported on October 23, 2007, that a sleep researcher from the Johns Hopkins School of Medicine had conducted a new study that shed light on the relationship between pain and sleep. Michael Smith explained that three groups of healthy young students were subjected to variable amounts of sleep disturbance or deprivation. He found that "fragmented sleep" led to severe impairments the following day in pain pathways. The subjects "felt pain more easily, were less able to inhibit pain, and even developed spontanteous pain" such as mild backaches and headaches.
Timothy Roehrs, director of sleep disorders research at the Henry Ford Hospital corroborated these findings in a separate study of fragmented sleep, and also demonstrated that "getting more sleep...had the opposite effect." Study participants in the sub-group who stayed in bed a minimum of ten hours per day demonstrated reduced sensitivity to pain "to the same degree as [if they had taken] a tablet of codeine".
An April, 2007, study by the University of Michigan Health System documented some of the connections between pain and depression. The study noted that people suffering from severe pain are at high risk to suffer severe depression, as well. We have observed this same phenomenon over several decades of injury practice and we have documented it with many of our clients' treating physicians. The U of M study goes a step further to quantify the problem.
The researchers at U of M noted that depression is often caused by chronic pain, alone. In addition, inability to participate in physical activity, inability to maintain fitness levels and general deconditioning all contribute to cause depression or to make it clinically more severe. Jarring life transitions resulting from injury and financial concerns also can contribute. None of this is rocket science or jarring, but it is good to see the problem documented and confirmed in a reliable way.
The existence of depression is a complicating factor in healing and coping, as well. The U of M study documented that people reporting moderate to severe depression were 11 times more likely to report that they are experiencing difficulty sleeping. They are also likely to experience injury to social relations and loss of social support, difficulty with alcohol or drug use, difficulty with maintaining even a part-time job, and difficulty with fitness, weight control and hygiene.
If you or a loved one has experienced a severe injury, please be alert to the symptoms of anxiety and depression. If you observe them, discuss them with the care givers to assure that the medical problems experienced by the patient are not compounded by clinical depression. Over the years, we have observed a number of our clients who were very severely injured--particularly men--but who refused prescription drugs for depression in the following months. Eighteen months to two years later, many of them were willing to acknowledge that their overall recovery and well-being was delayed as a result, and that their pain control and emotional health did not gain momentum until they began taking anti-depressants and re-establishing healthy sleep patterns.
