One of the most common fights we’re having in personal injury claims is known as the paid v. incurred fight.

In 2003, the legislature passed a law limiting damages in personal injury cases as follows:

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

What does this mean? 

In many cases, there are two different costs for medical care:  there is the list price and  the price that the medical provider accepts as full and final payment for the bill.

While it can come up in a number of different situations, the typical situation involves health insurance.  One of the benefits of your health insurance is that the insurance company has negotiated reduced rates with various medical providers.

For example, a hospital may have a list price of $10,000.00 for a procedure, but the insurance company negotiated with the hospital so the hospital agrees to accept $5,000.00 as payment in full.

Sometimes this benefits the insurance company — they get to pay less for your procedure.  But many times it benefits you.  For example, I have a high-deductible insurance policy — my company doesn’t pay until we’ve spent $5,000.00 for a year to meet our deductible.  But even when we haven’t met our deductible, the insurance company still processes the charge and reduces it so that I only have to pay the agreed upon reduced rate.

Before the 2003 law, injured people got the benefit of their insurance.  When we asked the jury to award medical expenses, the jury was asked to award the entire $10,000.00. 

But then the law was passed, and because it was worded so poorly, there was a great debate about what it meant.  Finally, the Supreme Court issued a case in July of 2011 clarifying the meaning.  And they held that an injured person can only ask the jury for the reduced amount that was actually paid to the medical provider.  In essence, a defendant now gets the benefits due you because you had the foresight to obtain health insurance.

This ruling also has an effect on the value of your claims.  In some cases, there is little we can do to avoid application of the rule, but in some cases, we can use some strategies to try and maximize your recovery.

If you’ve been injured, you should make sure your lawyer understands these issues and how to maximize your recovery in light of these issues.

Far too few personal injury lawyers are aware that if you (or perhaps more importantly, your children and other family members) are injured by an uninsured or underinsured driver while riding your bicycle or walking  (or doing most anything else), then you can probably make a claim against your UM/UIM coverage.  

When looking at your own policy  (where you are the named insured), the focus is not on what you were doing, but whether you were hit by an uninsured/underinsured motorist.  One of the best quotes about this comes from the case of Greene v. Great American Insurance Company, a 1974 opinion from the Beaumont Court of Appeals:

There is no requirement that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer.  The uninsured motorists protection covers the insured and the family members while riding in uninsured vehicles, while riding in commercial vehicles, while pedestrians, or while rocking on the front porch.

I want to add two clarifications about this.  First, this analysis only applies to your own UM/UIM insurance.  If you’re looking to make a recovery on UM/UIM insurance bought by someone else — for example, your employer, someone whose car you’re in, etc. — then this analysis doesn’t apply.

Second, the potential coverage isn’t quite as broad as the case above indicates.  Because of exclusions, there might be some very specific situations where coverage doesn’t apply.  Because policies are so different, you’ll have to look to your policy.

But those specific exclusions don’t change the general answer that, “Yes, your uninsured/underinsured motorist coverrage will cover injuries to you while you’re biking or walking” or rocking on the front porch.

I’ve heard from two attorneys the last few days that were trying to avoid a difficult situation involving on-the-job injuries.

For background, Texas is a worker’s comp state.  If your employer has worker’s comp then you are, for the most part, barred from suing your employer if you’re injured on the job.  On the other hand, if your employer does not carry worker’s comp  (we call these employers “non-subscribers”) then you can sue your employer for an on-the-job injury.  

Some non-subscribers have “fake” worker’s comp policies.  Typically, these are plans that will pay injured people a portion of their lost wages and their medical bills, but the plans won’t pay for pain and suffering, impairment, mental anguish, etc (these are called “non-economic damages”).  Under the law, injured workers are often entitled to seek benefits under the plan while still suing their employer for the damages that the plans don’t cover.

The problem?  Many industrial employers are now requiring their employees to sign a release before allowing the employees to seek benefits under the plan.  Thus, the injured are giving up their rights to seek a recovery for non-economic damages in exchange for accepting a partial recovery.  The potential recoveries that these employees are giving up may be substatial. 

Now, in some situations, that may be in the employee’s best interest.  But in many situations, it isn’t.  And injured employees who don’t know their rights can’t make informed decisions until they talk to an attorney and understand the options they have and the consequences of their decisions. 

So, if you’re injured on the job, I encourage you to talk to an attorney before signing any agreement that may give up your rights.

This is from another Google search that someone used to find our website.

I’d like to tell you unequivocally that the answer to the question is “No.”  But I can’t  (after all, we do a lot of legal malpractice work also so we know what lawyers are capable of doing).   In truth, it’s really rare than a personal injury lawyer tries to scam a client in a settlement, but it does happen.  (Don’t let that be an indictment of lawyers, in general, or personal injury lawyers, specifically.  Every profession has a few bad apples.  I’d like to tell you lawyers are exceptions to that rule, but we’re not. )

The more important question may be, “What can clients do to protect themselves and minimize the risk that they will be victims of a lawyer’s scam?”  And the best answer is to be informed.  Most personal injury cases are handled on a contingency basis.  In general, the attorney will receive the settlement funds or funds following a judgment and deposit the money in the attorney’s trust account.  Once the funds have cleared, the attorney will disburse the funds to all of the parties entitled to a portion of the settlement funds.  In general, the groups that generally receive part of personal injury funds are: 

1.  The lawyers (who receive their fees and reimbursement for the expenses they advanced);
2. Medical providers (who might have outstanding balances that are paid out of the funds); and 
3. Subrogation interests (paying back health insurance companies,  Medicare, Medicaid, or any other group that may have paid part of the client’s medical expenses and/or paid for any of the client’s lost wages).

After all of these items are deducted, then the remaining funds are disbursed to the client. 

So how do clients protect themselves?  Make sure the calculations are done right and ask for documentation.  Clients should make sure that they understand their fee agreement with their attorneys so that the clients understand how the fees are calculated.  Clients should also not be afraid to ask for documentation to support the deductions.  Reputable personal injury lawyers should not have have any problem providing an accounting of expenses, including showing receipts and/or canceled checks for expenses.  Similarly, for payments made to medical providers or subrogation interests, the clients should be comfortable requesting copies of the checks written to each of these entities.  If the client still doesn’t trust the lawyer, the client may also call the medical providers or the subrogation interests to make sure that the payments were actually made.

Taking these steps will help protect the client and, if the lawyer is trying to cheat the client, help the client figure that out.

Sign documents and answer questions you don’t understand. That’s one of the best ways to ruin a good personal injury claim.

There have been a handful of times in the last month when I’ve been going through the file of an existing or potential client, and they have had some interaction with the insurance company before coming to me that has hurt their claim. The most insidious form of this is the “swoop and settle” tactic of insurance companies jumping in right after a wreck and paying a small sum in exchange for a release. While there might be some way in some cases to void the releases, signing such a release can often eliminate a claim.

The more subtle problem is to give the insurance company an authorization to get medical records or to give the insurance a recorded statement. Insurance companies can use both of these to hunt around for information that they’re not entitled to — information that can often be used to harm your case.

I am the first one to tell clients that they don’t need an attorney after every accident. In many cases, the injured party might be able to do better by resolving a claim without a lawyer. But certainly, an injured person ought to consult a lawyer before signing anything for the insurance company or giving an adjuster carte blanche access to a recorded statement. Make sure you’re not the one that gets taken advantage of.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

The image that 90% of the population has of those of us that are personal injury lawyers is of some greedy jerk using deception or illegal tactics to pursue claims. For most of my brethren, that caricature couldn’t be further from the truth. But for some attorneys, it’s accurate, and it couldn’t be more disgusting.

Earlier this week, the San Antonio Express News ran an article detailing the problem of barratry or case solicitation. As it stands, barratry is illegal. Texas attorneys are not allowed to solicit clients in person or by phone, and an attorney can’t solicit by mail until thirty-one days after the date of the accident or wreck. Tex. Penal Code § 38.12. But it happens over and over, and we need to do what we can to stop it.

But the harassment of victims doesn’t stop at lawyers. Another problem is chiropractors soliciting car wreck victims and then referring the victims to their selected attorneys. We’ve previously written on a WOAI undercover operation to bust attorneys trying this stunt. That scheme is also illegal, but it too continues.

It’s about time that we did something about it. Lawmakers need to step in, attorneys need to step in by reporting suspected cases of barratry, and injured persons that are solicited need to report their own experiences. Maybe then, we can do something about this horrible practice. (Let me add that the article hints that the Texas Trial Lawyers Association may be against the bill. I’m proud to be an active member of TTLA — one of the only organizations over at the capital trying to protect individuals’ rights. And I’ve spent time over at the capital this session on behalf of TTLA. I would be shocked if TTLA opposed this bill. In fact, the article even notes that TTLA is supporting a bill that would increase the penalties assessed against an attorney for not reporting barratry. It makes no sense to support one and not the other.)

But the harassment comes from the other side as well. A recurring problem in some litigation is a “swoop and settle” tactic employed by insurance companies who come in and settle claims early before the injured persons know the true extent of their injuries and the nature of their rights. And in many cases, the insurance company officials not only don’t explain the nature of the settlements, but they make out-right misrepresentations about the injured person’s ability to bring future claims. These problems are equally as bad as attorney solicitation. Unfortunately, there doesn’t seem to be any movement at all to try and remedy those problems. My only advice is to make sure you know your rights before you settle. While some settlement agreements may be set aside for fraud or other claims, pursuing the suit and the claim becomes much more difficult all the way around once the client signs an early settlement “agreement.”

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

A big issue in personal injury litigation is insurance companies’ use of hired guns to give opinions that our clients aren’t hurt. Sometimes the hired guns simply review our clients’ medical records and sometimes the hired guns actually “examine” our clients. Then the hired guns write reports saying that our clients aren’t injured.

Insurance companies and defense lawyers try to hide the nature of these exams by calling them “independent medical exams.” That name borders on fraud; there is nothing independent about these exams. Unlike treating physicians, whose primary responsibility is trying to make sure the patient heals, the sole purpose of these hired guns is to minimize payments to injured persons.

Those of us that practice personal injury law have known the true nature of these exams, but now the exams are in the public’s eye. Monday’s issue of the New York Times had a great article on the use of “independent” medical exams to reduce payments due New York worker’s compensation claimants. The Times reviewed several cases and interviewed doctors involved in the process.

An enlightening part of the Times’ story compared videotapes of the exams with the eventual reports that were created. The Times noted numerous incidents where “independent” doctors noted on the videotapes that the victims were injured only to have reports show up saying the victims’ injuries were being exaggerated.

The practice was criticized by all involved. The new interim medical director for the NY worker’s compensation board, a physician at Mt Sinai Medical Center, noted:

You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did. There are some noble things you can do in medicine without treating. This ain’t one of them.

Another doctor involved in the process used to certify these physicians stated:

Basically, if you haven’t murdered anyone and you have a medical license, you get certified. It’s clearly a nice way to semiretire.

One root of the problem is that if the physicians provide opinions adverse to the insurance companies, they know that they won’t be hired again. It’s part of the game. Dr. Hershel Samuels, one of the physicians exposed in the article, stated:

If you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.

While the article focused on the New York worker’s comp system, the same problems exist here in Texas personal injury cases. The doctors are hired, and they all know the rules of the game: too many findings that victims are injured, and the doctors are not hired again.

Sometimes, the problem goes even further. I recently deposed a doctor hired by a defendant through a third party firm. The defendant hired the third party company and then the company hired the doc. The doc prepared a long report after a quick review of my client’s records, and a major part of the report was a criticism that the charges from some of my client’s medical providers were too high for the services rendered. At the deposition, the doctor admitted that he didn’t have a clue about the charges, but that the company that hired him had filled in that part of the report for him. Even the defendant lawyer seemed to find the situation humorous.

So what do we do? The Times article stated that the best defense is a videotape the exams. When our clients are referred to these defense exams, we push to have them videotaped.

The next remedy is collaboration. Attorneys who are members of the Texas Trial Lawyer’s Association, our state-wide group of lawyers who regularly represent plaintiffs, are wonderful about collaborating with one another for the good of our clients. If my client is referred to an IME doc, I can request information from lawyers around the state. We may be able to get copies of other reports, depositions, etc. You’d be surprised how many docs prepare reports for different patients that are identical to one another. (I tell injured persons that when they hire an attorney, they would be well-served to make sure that the attorney is a member of the Texas Trial Lawyer’s Association, and this collaboration is one of the major reasons for my suggestion.)

I encourage you to read the article and leave your thoughts.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.