There Is An Epidemic Of Big Businesses Depriving Americans Of Their Constitutional Right To A Jury Trial, And Legislators Should Stop It

Every American citizen has the right to a jury trial.   it says so right in the seventh amendment to the United States Constitution, as well as additionally saying so in most state constitutions.  But almost every large corporation doing business in the United States has secretly buried, deep in the fine print of their contracts “gotcha” provisions which deprive American citizens of their constitutional right to a jury trial. Big businesses do this because they want to avoid being held accountable in front of an impartial jury of average citizens, and instead want to hide their misdeeds and keep secret consumers’ claims against them. Big businesses fear juries, because they know that under the American jury system 12 average people have the power to hold them accountable on a level playing field.

So, instead of a jury trial, they rig the system.  They write their contracts  to say that instead of going to court, any future disputes with customers must go to “binding arbitration,” where a private person (instead of a public court) rule on the outcome, usually without any publicity at all.

While depriving the citizen of his or her day in court is itself outrageous, it might not be quite as bad if it weren’t for the fact that these contracts then almost always go on to game the system even further by then also imposing completely unfair rules for the binding arbitration. Those unfair rules almost always include (i) picking a decision-maker who is on the payroll of the big company and (ii) prohibiting certain types and amounts of remedies that the arbitrator can impose.

Almost every American citizen is affected by this type of contract. You (yes, You!) almost certainly have given up your constitutional right to a jury trial, if you have done even one of these things in the last few years:

• bought a mobile phone;
• worked for a large company;
• charged anything to a credit card;
• bought a new car;
• bought any computer software;
• installed an an app on your phone; or
• rented a car.

I’m willing to bet that almost every person reading this had no idea that by some seemingly insignificant and innocent act they had actually given up one of their major constitutional rights. Did you really read all the fine print on the back of the carbon copy of the car rental contract that says you give up your rights to a trial? Did you really read the 15 pages of microscopic print when your credit card company mailed you an amended and updated contract?  Of course not. Nobody does.

Did you click “Agree” when installing software without actually reading the terms of the agreement? Of course you did. Nobody reads those things.  In general, people click on “Agree” because:

1. they know the terms are not negotiable, under any circumstances. It’s a “take it or leave it” deal; and
2. they think people are fundamentally fair and don’t expect that they will be stuck with ridiculous and unfair provisions they weren’t specifically told about.

One of the most basic concepts in the American legal system is that both sides are entitled to have an impartial person decide the case.  If the decision-maker has a vested financial interest in keeping one side of the dispute happy, they obviously can’t be fair.  In a typical situation, a large company will write its  contract to require that every dispute must to be submitted to a particular, specifically-named arbitrator or  arbitration organization.  (One example is the American Arbitration Association (“AAA”)).   When a dispute arises, the arbitrator gets   involved in the dispute and gets paid  for its services, charging, at a minimum, many thousands of dollars, and sometimes even hundreds of thousands of dollars.  (Sometimes  the arbitrator’s payment comes from the company, sometimes from the customer, and sometimes from the loser of the dispute – it really doesn’t matter to the arbitrator where the money comes from, as long as it keeps coming.)

The arbitrator knows perfectly well  that if the company doesn’t like the arbitrator’s decisions,  the company will simply rewrite its contract to name a different arbitrator, and the arbitrator will lose their business.   The arbitrator  has a vested interest in keeping the big company happy with its decisions.     This conflict of interest means that  by definition  any named arbitrator is not fair, objective, or impartial.  They all pretend otherwise, but the fact is that they all know that they have to keep the company happy in the long run or they’ll lose the business.  If the arbitrator rules in favor of the customer too many times, or if any particular verdict is too high,  the company will fire them and simply hire a different arbitrator who is willing to play ball.

The United States Congress, the Missouri legislature, and each other state’s legislatures should pass laws prohibiting companies from imposing binding arbitration provisions  before a dispute has arisen, and declaring those provisions avoid.    If a dispute  comes up and both sides at that point voluntarily choose to submit the case to binding arbitration, that should be allowed  and permitted.  But the underhanded practice of burying these  kinds of provisions in the fine print in “standard” contracts,  which no one reads,  are impossible to negotiate and contain   unknowing waivers of important constitutional rights, should be outlawed and prevented from being enforced.

These laws would benefit the average consumer  and society as a whole.    Fear of being held publicly accountable for their actions is a powerful motivator for big businesses to act in a safe and responsible way.  Everyone in the community  benefits from public trials,  which is why the founders of this great nation required trials to be public.

Three new studies have proven that laws limiting the amount which an injured patient can recover from the careless physician who hurt them  do not have their desired effects and  that those laws actually increase  physician errors.  Those studies show that putting a “cap” on the amount of damages that an injured patient can actually recover from their careless physician reduces the incentives to be careful.   Those studies also show that  these “tort reform” measures:

1.     actually increase  physician errors;
2.     do not result in any healthcare cost savings; and
3.     do not increase the number of physicians in the state.

The basic principle underlying the field of Economics is that people respond to incentives of any kind. If you want something to occur, setting up a system which rewards that behavior will make it occur more often. Punishing the behavior will make it occur less. It’s simple common sense, but it’s also proven time and again to be an accurate predictor of human behavior.  Society has many different examples.  Rob someone and you’ll go to jail.  Speed and you’ll get a ticket.  Work hard to help your employer’s earnings increase, and your stock options will increase in value.

The basic idea behind “tort reform” completely contradicts this obvious, commonsense principle. One of the most common methods of “reforming” the tort system is to limit, or “cap,” the amount that a careless person has to pay to the person that they injured, regardless of what the injury is.  These laws require the court to   completely ignore the jury’s decision and a rewrite the verdict to a certain preset, “one-size-fits-all” amount if the  independent and objective decision  of the jury is more than what the law’s limits.

Apart from the obvious unfairness of making the jury’s careful judgment meaningless, these laws also limit the financial exposure of the careless person, which is the exact opposite of what we should be doing. In other words, these laws decrease the incentive to be careful in the future. That is exactly the opposite of what we as a society should be doing.  It’s only by holding careless people fully and completely accountable to pay fair compensation to the person that they’ve injured that we give people incentives to be careful.

Since people respond to incentives, decreasing the “punishment”  for  physician carelessness predictably means the carelessness will increase. Physicians obviously don’t want to hurt their patients.  But in this time of physicians being completely overrun and having little time to devote to each patient due to being stretched very thin because of  health insurance company limits on how much they’ll pay and having to cram in as many patient visits as they can, it’s not surprising that reducing accountability results in more patient errors.  For more information on these studies, see below.

The following appeared on http://centerjd.org/content/fact-sheet-new-studies-show-caps-damages-ruin-health-care on October 29, 2014:

NEW STUDIES SHOW: “CAPS” ON DAMAGES RUIN HEALTH CARE
(Printable PDF)

It is now indisputable that “caps” on compensation in medical malpractice cases (so-called “tort reform”) harm not just injured patients and their families. They are also wrecking health care for everyone else. Three new studies by esteemed academics in the field of medical malpractice research confirm for the first time that “caps” lead to more medical errors, higher health care costs and no increase in patient care physicians.[1]

MORE MEDICAL ERRORS[2]

The authors examined five states that enacted caps during the last “hard” insurance market (2003 to 2005)[3] where standard Patient Safety Indicators (PSIs)[4] were also available for at least two years before caps passed (to allow for comparison). They then compared these data to other “control” states. They found “consistent evidence that patient safety generally falls” after caps are passed. Specifically:

“We find a gradual rise in rates for most PSIs after [caps were passed], consistent with a gradual relaxation of care, or failure to reinforce care standards over time.”

“The decline is widespread, and applies both to aspects of care that are relatively likely to lead to a malpractice suit (e.g., … foreign body left in during surgery), and aspects that are unlikely to do so (e.g., … central-line associated bloodstream infection).”

“The broad relaxation of care suggests that med mal liability provides ‘general deterrence’ – an incentive to be careful in general – in addition to any ‘specific deterrence’ it may provide for particular actions.…”

“We find evidence that reduced risk of med mal litigation, due to state adoption of damage caps, leads to higher rates of preventable adverse patient safety events in hospitals.”

HIGHER HEALTH CARE COSTS[5]

The authors examined health care spending trends in nine states that enacted caps during the last “hard” insurance market (2002 to 2005)[6] and compared these data to other “control” states. They found that “damage caps have no significant impact on Medicare Part A (hospital) spending, but lead to 4-5% higher Medicare Part B (physician) spending” [emphasis in the original]. The reasons may have to do with physicians practicing riskier medicine in “cap” states, such as performing “high-risk services or procedures,” which they avoid in states where the tort system’s “general deterrence” function (noted above) works properly. The authors note:

“Damage caps have long been seen by health policy researchers and policymakers as a way to control healthcare costs. We find, in contrast, no evidence that adoption of damage caps or other changes in med mal risk will reduce healthcare spending. Instead, we find evidence that states which adopted [caps] during the third wave of med mal reforms have higher post-cap Medicare Part B spending.…”

“[O]ne policy conclusion is straightforward: There is no evidence that limiting med mal lawsuits will bend the healthcare cost curve, except perhaps in the wrong direction. Policymakers seeking a way to address rising healthcare spending should look elsewhere.”

NO INCREASE IN PHYSICIANS[7]

The authors examined physician supply in nine states that enacted caps during the last “hard” insurance market (2002 to 2005)[8] and compared these data to other “control” states. They found “no evidence that cap adoption predicts an increase in total patient care physicians, in specialties that face high med mal risk (except plastic surgeons), or in rural physicians.” Specifically:

“[W]e find no evidence that the adoption of damage caps increased physician supply in nine new-cap states, relative to twenty no-cap states.”

“Consistent with this analysis, we also find no association between med mal claim rates and physician supply in state and county fixed effects regressions over 1995-2011.”

“Physician supply does not seem elastic to med mal risk. Thus, the states that want to attract more physicians should look elsewhere.”

NOTES

[1]Bernard S. Black, David A. Hyman and Myungho Paik, “Do Doctors Practice Defensive Medicine, Revisited,” Northwestern University Law & Economics Research Paper No. 13-20; Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-21 (October 2014), http://ssrn.com/abstract=2110656; Bernard S. Black, David A. Hyman and Myungho Paik, “Does Medical Malpractice Reform Increase Physician Supply? Evidence from the Third Reform Wave,” Northwestern University Law & Economics Research Paper No. 14-11; University of Illinois Program in Law, Behavior and Social Science Research Paper No. LBSS 14-36 (July 2014), http://ssrn.com/abstract=2470370; Bernard S. Black and Zenon Zabinski, “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform,” Northwestern University Law & Economics Research Paper No. 13-09 (July 2014), http://ssrn.com/abstract=2161362.

[2]Bernard S. Black and Zenon Zabinski, “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform,” Northwestern University Law & Economics Research Paper No. 13-09 (July 2014), http://ssrn.com/abstract=2161362.

[3]Florida, Georgia, Illinois, South Carolina and Texas. Illinois’ and Georgia’s caps were found unconstitutional in 2010, but that is the last year examined by the authors and so had no impact on their results.

[4]PSIs are the “standard measures of often preventable adverse events, developed by the Agency for Healthcare Research and Quality (AHRQ).” They include operative and post-operative errors, infections, birth-related errors and cases at risk, like hospital-acquired pneumonia.

[5]Bernard S. Black, David A. Hyman and Myungho Paik, “Do Doctors Practice Defensive Medicine, Revisited,” Northwestern University Law & Economics Research Paper No. 13-20; Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-21 (October 2014), http://ssrn.com/abstract=2110656.

[6]Florida, Georgia, Illinois, Mississippi, Nevada, Ohio, Oklahoma, South Carolina and Texas.

[7]Bernard S. Black, David A. Hyman and Myungho Paik, “Does Medical Malpractice Reform Increase Physician Supply? Evidence from the Third Reform Wave,” Northwestern University Law & Economics Research Paper No. 14-11; University of Illinois Program in Law, Behavior and Social Science Research Paper No. LBSS 14-36 (July 2014) http://ssrn.com/abstract=2470370.

[8]Florida, Georgia, Illinois, Mississippi, Nevada, Ohio, Oklahoma, South Carolina and Texas.
Fact Sheet: New Studies Show: “Caps” On Damages Ruin Health Care

Fact Sheet

Medical Malpractice

Has An Insurance Company Denied Your Claim Because The Policy Was Previously Canceled? If So, There Is A Significant Chance That You Still Have A Valid Claim Against The Insurance Company

Many times, an insurance company will deny a claim on the grounds that the company had supposedly previously canceled the insurance policy. While that may be true in some situations, many of those claims against the insurance company are actually valid because the insurance company did not properly follow the legal requirements in order for it to validly cancel a policy.

Missouri laws spell out exactly what an insurance company has to do in order to properly and validly cancel an insurance policy. The law, and court decisions interpreting and applying the law, specifically describe the steps that an insurance company has to go through to properly cancel a policy. Similarly, if the language in the policy itself specifically describes what the insurance company has to do to properly cancel policy, then the insurance company has to comply not only with Missouri law, but also with the policy requirements.

If the insurance company does not properly take all of these steps, then the policy has not been canceled, and the insurance company can be forced to pay any valid claims under the policy even after the supposed cancellation date.

The main requirement is that the policy cancellation notice has to say that the policy is canceled now. And most policy cancellation notices do not say that, but instead say that the policy will be canceled sometime in the future.

Why Would The Insurance Company Not Follow The Rules On Properly Canceling Policies?

So why would a sophisticated insurance company not properly follow the rules? Why would they send out an invalid notice of cancellation, knowing that they might still be on the hook for any claims?

The answer is simple: Money. Almost all policy cancellation notices are sent out because the insured hasn’t made their premium payment to the insurance company. In many of these situations, the insurance company intentionally disregards the legal requirements, because it wants the insured to still send in their premium payment, and they’re afraid  that if they send out the proper wording, that won’t happen. In order to send a proper valid cancellation notice under Missouri law, the insurance company has to essentially say:

“Your policy is now canceled.”

But insurance companies don’t want to do that, because if they said it that way, the policyholder would think it’s too late to send in a late payment, and would look elsewhere to buy a new insurance policy. So instead of wording it correctly, insurance companies typically send out notices saying something like:

“If we don’t receive your payment in the next 10 days, it will be canceled.”

Because a valid cancellation notice must say that the policy is canceled now, this type of wording is inadequate. If the insurance company uses this type of wording, it is not enough to properly cancel the policy.

What Happens If A Cancellation Is Invalid?

If an insurance company sends out an invalid cancellation notice, then as a general rule courts will disregard the cancellation notice and treat the policy as continuing in full force and effect until the end of the policy period. There are limits on how long the court will do that for, though they are typically taken into consideration on a case-by-case basis. An experienced attorney can help you analyze your particular situation. We are happy to help. Call Curran Law Firm at 417-823-7500 or visit our website at www.CurranLawFirm.com.

Who Has To Prove Whether The Policy Was Canceled?

The burden of proving that an insurance policy was canceled is on the person claiming that it was canceled, which is almost always the insurance company. See O’ Connor v. State Farm Mutual Automobile Insurance Company, 831 S.W.2d 748, 751 (Mo.App.S.D. 1992) citing Farrar v. Mayabb, 326 S.W.2d 337, 341 (Mo.App. 1959).

What Should I Do If My Claim Has Been Denied Due To A Policy Cancellation?

If your claim is been denied by an insurance company because it claims that policy was previously canceled, you should consult with a knowledgeable attorney experienced in dealing with insurance companies. We are happy to help. Call Curran Law Firm at 417-823-7500 or visit our website at www.CurranLawFirm.com.

 

 

Taking Away Rights Of Injured Patients To Sue Careless Doctors Does Not Reduce Medical Costs

Many states have laws which severely limit the rights of injured patients to sue physicians for malpractice. These laws typically say that if a trial is held and the jury finds that a doctor did provide substandard care to a patient and issues a damages verdict in favor of the patient, the judge is required to ignore the jury’s verdict and reduce the damages to a preset maximum amount. Think about that for a minute. These laws only apply to cases where a jury found that the doctor had actually acted carelessly. In other words, these laws don’t even apply to frivolous lawsuits, because if the jury made up of the general public finds that the doctor acted carelessly, then the lawsuit obviously isn’t frivolous.

The 7th Amendment to United States Constitution guarantees every citizen the right to a jury trial. The Missouri Constitution also guarantees every citizen the right to a jury trial. Many of these laws have been found to be unconstitutional because in fact they take away the right to a jury trial. A jury trial is meaningless if the judge is going to overrule the jury’s decision and reduce the verdict, which is what these laws require.

Many people who argue in favor of those laws claim that it’s necessary to limit verdicts because doing so will reduce medical costs, the theory being that without those limits doctors will be required to “practice defensive medicine” so as to protect themselves. The theory goes that because of the fear of lawsuits doctors will order unnecessary tests to use to defend themselves in case they get sued, driving up medical expenses. There has never been any evidence to support that position, but they have made that argument for many years anyway.

Today, the New England Journal of Medicine, the most prestigious medical journal in the United States, published an article completely disproving that theory and showing that these laws do not produce any significant reductions in medical expenses. The article is entitled “The Effect Of Malpractice Reform On Emergency Department Care.” The following summary of the article is quoted directly from the New England Journal of Medicine’s website as it exists today, October 16, 2014 (http://www.nejm.org/doi/full/10.1056/NEJMsa1313308?query=TOC&#Top):

“The Effect Of Malpractice Reform On Emergency Department Care

Daniel A. Waxman, M.D., Ph.D., Michael D. Greenberg, J.D., Ph.D., M. Susan Ridgely, J.D., Arthur L. Kellermann, M.D., M.P.H., and Paul Heaton, Ph.D.  N Engl J Med 2014; 371:1518-1525October 16, 2014DOI: 10.1056/NEJMsa1313308

Background

Many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending. Emergency physicians practice in an information-poor, resource-rich environment that may lend itself to costly defensive practice. Three states, Texas (in 2003), Georgia (in 2005), and South Carolina (in 2005), enacted legislation that changed the malpractice standard for emergency care to gross negligence. We investigated whether these substantial reforms changed practice.

Methods

Using a 5% random sample of Medicare fee-for-service beneficiaries, we identified all emergency department visits to hospitals in the three reform states and in neighboring (control) states from 1997 through 2011. Using a quasi-experimental design, we compared patient-level outcomes, before and after legislation, in reform states and control states. We controlled for characteristics of the patients, time-invariant hospital characteristics, and temporal trends. Outcomes were policy-attributable changes in the use of computed tomography (CT) or magnetic resonance imaging (MRI), per-visit emergency department charges, and the rate of hospital admissions.

Results

For eight of the nine state–outcome combinations tested, no policy-attributable reduction in the intensity of care was detected. We found no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction (95% confidence interval, 0.9 to 6.2) in per-visit emergency department charges.

Conclusions

Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.”

As this study shows, these unconstitutional laws also don’t do anything to reduce medical expenses.   All laws overriding jury decisions should be eliminated, in accordance with the requirements of the United States Constitution.  Holding people accountable is the only way to get them to change their conduct, in order to protect all of us.

Some of the most serious injuries occur in collisions between cars and cyclists (both motorcyclists and bicyclists). Since bike riders are obviously a lot more exposed and have nothing around them to protect them (except a good helmet, which is always a necessity), even a low-speed impact can cause devastating injuries. As a serious rider myself, I see firsthand how outright dangerous some motor vehicle operators can be near two-wheeled vehicles. Problems range from drivers not looking carefully enough, to sometimes going as far as their being downright hostile and angry at riders for no good reason.

The purpose of this blog entry is to give people injured in these collisions some helpful advice on what to do both immediately after a collision, as well as later on.

First, Things To Do At The Scene Of the Crash:

1. Check on everyone involved to see if they need immediate assistance or medical attention. This includes not only everyone in your car, but everyone in the other vehicle or vehicles involved. Don’t lose your temper, or start blaming anyone else for causing the crash, even if they did cause it. Emotions are high, and you can worry about those things later. Don’t discuss the cause of the crash with them; just see if they’re okay.

2. Call 911, to get both the police and medical personnel on their way to you if anyone is in pain or in other need of medical assistance.

3. Don’t move anyone, or try to provide medical assistance yourself unless you’re qualified and it can’t wait 30 seconds to call 911. Moving an injured person should only be done by professionals, in part because that can sometimes sever their spinal cord, causing paralysis.

4. Take some pictures with your cell phone of every vehicle involved. Of course, you should wait until after everyone’s safe, but try to do this before any of the vehicles are moved (making sure to get the tag or license plate number), skid marks, street signs, vehicle damages or anything else that’s relevant. Backup the pictures to a secure place, such as e-mailing them to a home computer.

5. Respectfully insist that the other people involved wait until the police arrive and complete a written report. Some drivers try to simply get you to agree to take their name, address and insurance information, but do not agree to this. There are many reasons for this, including that the police will need to see the positions of the vehicles, inspect the vehicles to note where and how much damage there is, and take statements from each driver and witness. If they start to leave, politely tell them that they’re required by law to stay in that it’s against the law to leave the scene of an accident. If they leave anyway, make note of the vehicle’s license plate number and description, as well as the person’s description.

6. Write down the names, addresses and telephone numbers of any eyewitnesses to the crash. I have had numerous cases where the police officer, for whatever reason, failed to interview eyewitnesses to the crash. More than once, those witnesses turned out to be the difference between winning and losing. Don’t rely on the police officer to get that information, because you may be disappointed — get it yourself.

7. When the police arrive, tell them exactly what happened.

8. Always tell the truth, the whole truth and nothing but the truth. Don’t lie or exaggerate in any way. This is, of course, required, both morally and legally. But so there’s no misunderstandings, we want to very clearly state that Curran Law Firm will not represent anyone if we think they’re not being honest.

9. Do not refuse medical treatment, unless the impact was insignificant and you’re absolutely sure that you’re not injured or even “shaken up.” It’s just common sense that you should always get immediately examined by medical personnel after a crash, just as a precaution. Even if you have just a very minor amount of pain, report it. It may be nothing, but it could be a sign of a serious physical problem. Like an office worker who plays football on Sunday but doesn’t get sore until he wakes up Monday morning, you usually won’t get the full impact of your injuries until the next day, at the earliest. Unfortunately, if someone assumes the pain will go away and refuses to be examined, the insurance company and their lawyers will frequently try to twist the facts later to paint an honest victim who didn’t complain at the scene as someone who is now faking an injury. Again, just tell the truth.

10. Be sure to get the police officer’s name and incident number for future reference. Most police departments will also give you a slip of paper showing the incident or report number so that you can request a copy of the report when it’s finished.

Second, Things To Do Shortly After The Emergency Is Over:

1. Contact an experienced attorney, such as Robert Curran. We know that it sounds self-serving, but the sooner you get an experienced attorney involved, the better the odds of getting a fair settlement. The attorney will almost certainly be able to better locate, preserve and protect the relevant evidence and hire experts who can visit the scene before skid marks and other physical evidence disappears. If you do hire an attorney, tell everyone who contacts you about this crash that you can’t discuss it with them, and that they should speak to your attorney. Tell them, “I’m looking forward to cooperating with you, but my attorney said not to speak to anyone about this matter unless he’s present.” Then give them the attorney’s name and telephone number, and politely and apologetically hang up the phone.

2. Promptly take many high quality photographs of all of the physical evidence. A disposable camera is okay if there is no alternative, but, if possible, use a good digital camera set on the highest number of pixels it can take. The physical evidence to be photographed includes, at a minimum: (i) your vehicle, (ii) every other vehicle involved in the crash, (iii) the crash scene, showing skid marks, damaged physical objects such as telephone or streetlight poles, etc. and (iv) photographs of visible injury to you (such as bruises, scars, road rash, etc.) When taking photographs of a vehicle involved in the crash, imagine the vehicle at the center of a clock, facing 12 o’clock. Take pictures showing the whole vehicle while you’re standing a 12 o’clock, then 1 o’clock, then 2 o’clock, etc., all the way around the entire clock. Then go back and take many close-ups of each and every damaged part of the vehicle, as well as the entire interior, again from many different angles. Take at least two or three times as many pictures as you think you will need. Look at the photographs immedi­ate­ly afterwards, on a full-size computer monitor, to make sure that they’re not blurry and that the lighting is adequate. (Blurry pictures sometimes seem clear when viewed on the small monitor on the digital camera.) Immediately take more pictures if these did not turn out well. If you’re using a camera with film, get the pictures developed immediately and also have them put on CD, to give to your lawyer as a backup.

3. Take steps to preserve all of the physical evidence. There may be very serious consequences for you if you destroy evidence (even innocently, such as if you have photos of it, or just to avoid storage charges) or if you permit someone else to destroy evidence. For instance, there are certain types of claims, such as product liability claims, where it’s extremely difficult or impossible to win a suit against the manu­facturer of a defective product if you no longer possess the product. When the evidence is something that you own, you can preserve it by keeping it safe and refusing to give anyone else permission to take it. That may be inconvenient, or interfere with your settlement with the insurance carrier for the person in fault, but if a serious injury has occurred, that’s a small price to pay for protecting your rights. When the evidence is something that someone else owns, you can do your best to preserve it by sending a certified mail, return receipt requested letter to the owner, the owner’s insurance company and anyone else involved (such as the police, towing company, storage lot, etc.), advising them that they are in possession of material evidence, and that they should not permit it to be destroyed or modified in any way. If you have not had a chance to photo­graph it yet, in your letter request permission to go photograph it. In an appro­pri­ate case, you may consider offering to buy the evidence for salvage value simply to preserve any potential products liability claims. For instance, if the defendant drove a defective vehicle that burst into flames and caused injury to you, keeping that vehicle available may be crucial to your suit against the vehicle manufacturer. If someone tells you that they are going to destroy important evidence in your claims, you should immediately hire an experienced attorney such as Curran Law Firm to go to court and get a temporary restraining order and an injunction to prevent the evidence from being destroyed.

4. When you go to your doctor, bring a written list of all your specific complaints, no matter how minor or insignificant they may seem to you, and tell the whole truth. Tell the doctor that you brought the list because you were afraid that you would forget some of your symptoms. By giving the doctor all of the pieces of the puzzle, you give the doctor the best chance of making a correct diagnosis, and maximizing your chance of recovery. (By the way, unless they ask, don’t mention to your doctor anything about getting a lawyer or filing a claim because unfortunately, many doctors will immediately write you off as a gold-digger or faker, regardless of how serious or significant your injury may be or the fact that you’re only trying to obtain just compensation.)

5. Follow your doctor’s advice. Don’t think that you know more than they do; you don’t. For instance, if the doctor gives you restrictions on how much you can lift, don’t try to lift more.

6. Keep every medical appointment unless you have a very good reason for missing it. If you must miss one, be sure to contact the doctor’s office in advance as a courtesy to let them know that you’ll be unable to keep your appointment, and explain why you can’t be there.

7. Get a bound notebook and use it to keep a written journal of notes to your lawyer, keeping track of everything that happens, including:

a list of all your physical complaints and problems;
a list of all medical appointments you had, all tests that were done, etc.
a description of all the telephone conversations you have (showing the name and phone number of the person you spoke to, which insurance company they were with, who they insured, the date and time of the call, what was said, etc.);
the dates of each time you missed work because you were physically unable to work, had to go to the doctor, or earned lower wages due to being on “light duty”, etc.
the cost of things you had to pay for that you would not otherwise have had to buy (such as medicines, babysitters, cab fares, etc.)

8. Get a calendar and use it to keep track of important events, such as your doctor’s appointments, days missed from work, plans you had that had to be canceled because of physical problems or doctor’s appointments, etc.

9. Get a copy of the police report from the police department. Read it carefully, and if anything is incorrect, promptly bring it to the attention of the reporting officer. If the officer will not fix it, file a supplemental report describing how the report is inaccurate.

10. DO NOT give a recorded statement to anyone. People are sometimes confused by this advice, thinking, “If I’m only going to tell the truth, why shouldn’t I give the insurance company a recorded statement?” The truth is that insurance companies don’t want a recorded statement from you to honestly figure out who is at fault; they can do that from a conversation with you without recording it. The only reason they want to record your statement is so they can use it in court against you later. They know that no one’s memory is perfect and can change somewhat. If I interviewed you today about a crash that happened yesterday, and then interviewed you again a week from today, asking the same questions, you would probably have minor changes in your story, even though you did your best to tell the truth both times. The insurance company is trying to create evidence that your story has changed, solely for the purpose of making you look like a liar. And here’s how I prove it to my clients: Instead of refusing to allow them to take a recorded statement from my client, I frequently send the insurance company a letter saying that I will allow them to take a recorded statement from my client, as long as they simultaneously allow me to take a recorded statement from their insured. In all the years I have been doing this, I have never once had an insurance company take me up on that offer. They’re not trying to get at the truth. They’re just trying to get as much ammunition as they can to use against you and minimize the value of your claim.

We have the knowledge, experience and medical resources to thoroughly evaluate your potential case. If you have been injured but are unsure if you have a case, please contact us as soon as you can. We are committed to hearing your story and providing the experienced counsel you need to make sound decisions.

Be Safe Out There!

One of the keys to being an effective lawyer is speaking in plain English.  In order to effectively represent a client, a lawyer needs to communicate in clear simple terms.  I understand that it’s very important to do this with my clients, and it’s something that they appreciate.  It doesn’t do anybody any good for me to have a “conversation” with my client if the client has no idea what I’m talking about because I use legalese and don’t explain things.  While the lawyer carries out the marching orders, the client is the one who actually issues those orders.  The lawyer is supposed to explain the legal issues, describe the client’s options, describe the risks associated with each of those options and also give the lawyer’s own recommendations and advice as to which path to choose.  If I don’t do a good job with those things, my client won’t understand these important issues, and we’ll both suffer.

I think that one of the reasons my clients are satisfied with my services is because I have the ability, and I also put forth considerable effort, to take a very complicated legal subject and make it understandable to them.  It’s something that many lawyers either can’t or won’t do.  I think that some lawyers actually enjoy speaking way over their audiences’ heads because they think that it impresses people.  While some might be impressed, I think most people look down on lawyers who do that.

While it’s important to speak plain English with clients, it’s absolutely necessary to do it with juries.  Juries are made up of everyday people, and very few of them have any legal experience.  They’re not going to understand a lawyer who stands up in front of them making a long-winded convoluted speech using ten-syllable words, and makes a long rambling rant. Instead, they’ll either be insulted, disappointed, angry, confused, or some combination of those things.  None of those are good for the lawyer, or that lawyer’s client. If the jury doesn’t understand what the lawyer is saying, they’re not going to get the message the lawyer is sending.  That message is always:  “You should issue a verdict in favor of my client because . . ..”  If that message doesn’t get through to the jurors, the client has no chance of winning and is sunk.

Instead, the lawyer must speak in a way that jurors understand.  By the time the case goes to trial, the lawyer has been living with it for years.  Because the lawyer’s so familiar with the facts, it’s easy to leave things out, assume things the jurors won’t assume, gloss over important things that seem obvious to the lawyer (but not to the jurors), or otherwise do a poor job of communicating.  The lawyer should instead present things using plain English, and in a straightforward, chronological way. If the lawyer fails to do any of those things, the jurors will ignore the message and the client will lose.

I want to make it clear that I’m not saying the lawyer should either underestimate or “talk down to” the client or the jurors.  That’s just as insulting.  It’s important for lawyers to recognize that there’s a huge difference between ignorance and stupidity.  I’m not stupid, but I admit that I’m very ignorant when it comes to many different subjects.  For every subject that I know more than you about, I’m certain that there are many subjects that you know better than I do.  One of the most intelligent clients I’ve ever had left school in 3rd grade.  He was very smart (especially street-smart), but uneducated.  There’s a big difference between those two things.

One of the most important factors in choosing a lawyer is selecting one who is an effective communicator. Clients of lawyers who communicate well are not just happier with their attorney.  They’re also happier with the outcome of their case.

United States Supreme Court, led by Chief Justice John Roberts, is continuing the Court’s long-standing trend of favoring big business and the rich over justice for average citizens. The following article which appeared in today’s New York Times, summarizes the situation accurately. The link to the article on the New York Times website appears at the bottom of the article.

Justice for Big Business

By Erwin Chemerinsky

IRVINE, Calif. — THE Supreme Court’s momentous decisions last week on affirmative action, voting rights and same-sex marriage overshadowed a disturbing trend: in the final two weeks of its term, the court ruled in favor of big business and closed the courthouse doors to employees, consumers and small businesses seeking remedy for serious injuries.

A majority of the justices seem to believe that it is too easy to sue corporations, so they narrowly construed federal laws to limit such suits. These decisions lack the emotional resonance of the cases involving race and sexuality, but they could have a devastating effect on people who have been wronged by companies.

The three cases involved many different areas of law but shared much in common. The five most conservatives justices — Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and Chief Justice John G. Roberts Jr. — were in the majority in all cases. All strongly favored big business.

First, the court made it much harder for victims of discrimination to sue. The court had previously ruled that, generally, an employer is strictly liable for sexual harassment by a supervisor, but it can be held liable for sexual harassment by a co-worker only if the employer is negligent. On June 24, in, Vance v. Ball State, the court adopted a narrow definition of who is a “supervisor,” holding that it must be a person empowered to take tangible, adverse actions against the worker, like demoting or firing her, or cutting her pay.

This is just the most recent of several Roberts court decisions that have narrowed the scope of federal employment discrimination protections. The most infamous was Ledbetter v. Goodyear Tire and Rubber, in 2007, in which the court prevented a woman who had been the victim of years of pay discrimination from recovering back pay for most of the time she was employed there, because she did not learn of the disparity until near the end of her employment. Congress passed, and President Obama signed, a law overturning that decision.

Second, the court affirmed that it consistently favors manufacturers over consumers. Two years ago, in Pliva v. Mensing, it held that those injured by generic drugs couldn’t sue manufacturers for failing to adequately warn patients of side effects. This is crucial because nearly 80 percent of all prescriptions in the United States are filled with generic drugs (it would be 90 percent if it were not for drugs for which there is no generic equivalent).

On June 24, the Supreme Court went further. In Mutual Pharmaceutical Company v. Bartlett, it held that makers of generic drugs could not be sued for defects in product design. The case involved a woman who was disfigured after taking a generic pain medication. The court said that federal law pre-empted any recovery under state law for failure to warn of the defects.

Third, the court continued to sharply limit class-action suits against companies. Two years ago, in AT&T Mobility v. Concepcion, the court held that a clause in a consumer contract requiring arbitration of disputes precluded a class-action suit. Vincent and Liza Concepcion were upset when they were charged $30.22 in sales tax after getting “free” cellphones. They wanted to be part of a class action against AT&T for fraud.

The Concepcions, like so many of us, had signed an agreement when they got their phones, and it had a clause that said any dispute with AT & T had to be resolved in arbitration. The California Supreme Court had ruled that such arbitration clauses were not enforceable, because consumers had no realistic choice but to sign. But the United States Supreme Court held, 5 to 4, that the arbitration clause was to be enforced and that since it had to be individual arbitration, it could not be a classwide case. Justice Scalia’s majority opinion spoke of the terrorizing effects of class actions, which can force corporations to settle even frivolous suits. But the reality is that class actions are essential when a large number of people suffer damage, especially when the amounts are small: no one will sue, or even go to arbitration, for $30.22.

On June 20, the court again restricted class actions, in American Express v. Italian Colors Restaurant. The restaurant and other small businesses had brought a class-action suit accusing American Express of violating antitrust law in imposing excessive fees on merchants. The individual plaintiffs could have each recovered just $38,000 under the antitrust statute, but proving an antitrust violation would have cost exponentially more. Therefore, denying a class action meant that the suit could not realistically go forward. The result: a company can violate antitrust law yet immunize itself from liability through an arbitration clause.

These cases evince a disquieting theme about the conservative majority of the Roberts court. It obviously believes, and sometimes expressly says, that there is a need to protect big business from litigation. But in discrimination, product liability and arbitration, it has left injured employees, consumers and small businesses without recourse.

Congress could revise these statutes to allow the suits to go forward, and in the discrimination case, Justice Ruth Bader Ginsburg called on Congress to do just that. But deadlock in Washington does not leave much confidence that Congress will reopen the courthouse doors.

Erwin Chemerinsky is a professor and the dean of the law school at the University of California, Irvine.

http://www.nytimes.com/2013/07/02/opinion/justice-for-big-business.html?emc=eta1&_r=1&

On April 16, 2013 the United States Supreme Court issued a very disappointing decision in a case involving US Airways’ attempt to completely deprive its employee of not only his recovery from the person who injured him, but also deprive him of the benefits paid to him by his car insurance company that he had paid cash for out of his own pocket. You can read this very sad decision here:

http://www.supremecourt.gov/opinions/12pdf/11-1285_i4dk.pdf

One of my prior blog posts described the situation and the question presented to the US Supreme Court. You can see that post, dated December 13, 2012, below.

The long and short of it is that US Airways provided its employee, McCutchen, with health benefits. Most employees think of this as “health insurance,” even though these days many times it is not actually issued by an insurance company. Instead, US Airways itself shouldered the risk of Mr. McCutchen’s medical bills. They didn’t do that for free; they did it because he earned those benefits by working as their full-time employee.

US Airways, like all of these big companies, wrote out an incredibly complicated and long plan document describing the terms of its benefits. These documents are typically 400 to 500 pages long, and written in legalese. The employer typically doesn’t even give a copy of the plan document to the employee, but even if they did, most employees would never understand it anyway because it’s so dense and complicated. In fact, Congress acknowledges the complexity of these documents by allowing summaries of the plan to be given to the employees. (I’ve seen summaries that are over 100 pages long, which gives you some idea how complicated the full document can be.)

Buried in the fine print in most of these plan documents is a provision that says something that, if it were to be translated into plain English, would look like this:

“If you get hurt in an accident caused by somebody else, and we pay your medical bills from that injury, and you go hire a lawyer and you and your lawyer spend money time and effort to make a recovery from the person at fault, we get 100% of the recovery up to the point where our medical bills are reimbursed. We don’t care how much money you or your attorneys you have to spend, or how many hours you have to work, we get paid first no matter what. We don’t even care if the money comes from your own private car insurance that you paid premiums out of your own pocket for. We get it all. If the verdict or recovery isn’t enough to pay both us 100% of our recovery and you 100% of the value of your claim, you lose. We get it all. Too bad for you.”

The law that creates these types of plans is called ERISA. It has a provision saying that these plans are only entitled to “appropriate equitable relief.” Now in both plain English and in legalese, the term “equitable” means “fair.” The law seems pretty clearly to mean that benefits plans like this can only get their money back if it’s fair for them to do so.

So here’s what happened in Mr. McCutchen’s case. He got very seriously injured in a car accident caused by another driver. The US Supreme Court said that the parties agreed that the full value Mr. McCutchen’s injuries was about $1 million. In addition to McCutchen’s being hurt, three other people were also either killed or seriously injured in that crash. US Airways’ health plan paid about $67,000 of his medical bills.

McCutchen hired a lawyer to sue the person who caused the crash. Because the outfall driver had very low insurance policy limits and because there were other people who had to share and those limits, McCutchen’s portion of the policy limits settlement was $10,000.

Before the crash, Mr. McCutchen had chosen to pay higher car insurance premiums to buy extra “underinsured motorist coverage”on his policy to protect him in case he got hurt by someone who didn’t carry enough insurance. McCutchen’s lawyer got his own insurance company to pay out the full amount of the $100,000 in additional underinsured motorist coverage that Mr. McCutchen had bought and paid for out of his own pocket.

So the total settlement amount that Mr. McCutchen and his lawyer received was $110,000. For his work, the attorney received a 40% contingent fee, which came to $44,000. That means that after paying the attorney, Mr. McCutchen was left with the net amount of $66,000.

US Airways told Mr. McCutchen and his attorney that they not only wanted to take the entire $66,000 from Mr. McCutchen, but they also wanted the extra $1,000, since they’d spent about $67,000. They wanted to not only deprive Mr. McCutchen of every penny that he gotten, but they also wanted to deprive the attorney of a portion of his attorneys fee so that they could get 100% of their recovery.

To most people, there’s nothing fair or equitable about what US Airways was trying to do. They didn’t hire the attorney; they didn’t share the cost of the litigation; they didn’t share in the risk of the litigation. They sat back and did absolutely nothing. They decided to let Mr. McCutchen and his attorney do the work and they would simply sit back and reap the benefits.

Amazingly, the United States Supreme Court’s decision rules that as long as the plan specifically says in advance that this type of unfair deprivation of rights is going to occur, it okay with them. With the particular facts of this case they sent it back to the lower courts to issue a decision after looking into it a little more, but the decision written by Justice Kagan very clearly tells employers how to write these plans in order to completely deprive their employees of the benefits of their hard work.

What about the fact that Mr. McCutchen had reached into his own pocket and paid increased insurance premiums to his own auto insurance company to create this $100,000 pool of underinsured motorist benefits? US Airways didn’t care. And neither did the US Supreme Court. They weren’t troubled by this fact.

What about the fact that Mr. McCutchen and worked 40 hours a week to obtain the health benefits that US Airways and promised him, and that they were now trying to deprive him of by taking away his entire settlement? US Airways didn’t care. And neither did the US Supreme Court. They didn’t have a problem with that, either.

This aspect of the ERISA laws is designed to line big employers’ pockets by letting them completely back out of their promises to their employees. This whole notion that “Well, the employee knew or should have known the terms of the plan from the beginning, because it’s written right there in the plan document” is a complete fiction. Employees are almost never given the plans, and even if they had been given it and had actually spent the time to read it, 99% of these plans are incomprehensible to non-lawyers, anyway.

This whole process is unconscionable and should be stopped immediately. Congress should immediately take action to amend the ERISA law to prevent this type of unjust enrichment. If the employer wants to hire its own attorney and pay its own costs and expenses to pursue a lawsuit to get back its money, that should be permitted. But they should not be able to take the employee’s own insurance benefits from him or her under any circumstances. Nor should they be permitted to sit back and passively wait for somebody else to do their work and then swoop in and take all the benefits of that hard work without bearing any of the risks, responsibilities or costs.

The Missouri Supreme Court recently held that laws attempting to put “‘caps” on how much a jury can award in medical malpractice cases violates the Missouri Constitution’s provisions. Specifically, the Missouri Constitution says that the right to a jury trial shall remain “inviolate.” The Supreme Court held that it’s a sham to say that you have a right to a jury trial if the judge then rewrites the jury’s decision and disregards it completely.

Despite the clear wording of the Constitution and their sworn promises to uphold and defend the Constitution, Missouri’s legislature is yet again attempting to do an end run around the right to a jury trial by passing a new law which is very similar to the old one. They’re attempting to get around this provision by eliminating Missouri’s citizens’ common-law rights as in existence before the Constitution, and creating a “new,” and clearly inferior, right to file medical malpractice claims if you’re injured by a physician’s carelessness.

It’s incredibly ironic that the Republican-led legislature, most of whom are big fans of the Tea Party and its professed adherence to strict construction of the Constitution, have no problem tearing up the Constitution when it comes to provisions that benefit Missouri citizens generally but are directly against the interests of their large campaign contributors (such as doctors, hospitals and insurance companies). It’s been well proven that making doctors accountable to patients when they make mistakes makes doctors more careful, cuts down on medical errors and clearly improves our healthcare system. The myth put forth by doctors, hospitals and insurance companies in every state in the country that holding doctors accountable leads to “defensive medicine” and leads doctors to “leave our state”has been exposed as completely false. See these links:

Article on Five Myths About Medical Negligence

For a good explanation of how the insurance companies’ villainizing plaintiff’s lawyers has nothing to do with merit and everything to do with stock prices and insurance companies returns on their investments, see this link:

The Tort Reform Myth

I strongly urge all Missouri citizens to call their legislators immediately to tell them that they won’t stand for these attempts to take away their Constitutional rights!! Nobody expects to get hurt by a healthcare provider’s mistakes, but it happens every single day. And simply assuming it’s never going to happen to you is a very dangerous tact. You may need those rights someday, and if you do nothing now, they might not be there when you need them.