Apr
06
2013

Conflict of Interest: Suing spouse good for you both

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When a couple contacts me because they have been injured in a car crash, they are often confused when I tell them that I can’t represent them both. What they may not understand is that it has nothing to do with whether I want to or not, and everything to do with a conflict of interest.

At first blush, you may not realize why a conflict exists. This example may help you recognize where the conflict exists.

t-bone

Side Impact Car Damage

Imagine you and your spouse are driving along in your car, and all of a sudden you are hit on the driver’s side of the vehicle by a car coming out of a driveway. The police arrive, ticket the driver that hit you, and then you go to the hospital to be treated for your respective injuries.

When you call the other driver’s insurance company, you are shocked to hear that the driver that was ticketed is claiming your spouse, the driver of your car, was actually at fault, or at least partly at fault.

In that instant, the conflict has been created (some lawyers would say that its created the moment you were hit). The conflict is, you as a passenger, will almost always be free of any fault. You weren’t driving – your spouse was. However, your spouse has now had the finger of fault pointed at him (whether he has any or not).

Just the chance, small though it may be, of your spouse having some fault, gives you the right to make a claim against him or her. That small chance is a conflict which an attorney should identify and explain to you.

While the thought of making a claim against your spouse is distasteful, in order to obtain all of the coverage that is available to you, you may have to. Imagine declining to make a claim against your spouse and only making a claim against the car that hit you, only to find out that the other driver was uninsured, or under-insured (carrying only the minimum required by law). You could be left without enough insurance to pay for medical bills, wage loss or other claimed loss simply because you didn’t want to sue your spouse (who now wishes you had so that you can pay for all of your medical bills!).

Making claims against the driver when you are a passenger is normal, and needs to be done to ensure that all of the available insurance is there if you need it, and could be malpractice if your attorney fails to recognize that he or she cannot represent you both.

Nov
23
2012

Will UIM Insurance Pay My Medical Bills?

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Does UIM Insurance pay for medical bills from an automobile collision?  Recently, a client asked me a question about UIM Insurance. She had seen information on her auto insurance company’s website that led her to believe that UIM insurance would pay her ongoing medical expenses for injuries from a car accident.

Here’s my response:

I can see how the material on the web site would lead one to believe that UIM insurance pays for medical bills the same way that health insurance pays for them. But it does not.

The difference is that health insurance pays for bills on an “ongoing basis.” That means each visit with a health care provider is paid as it is incurred. I go to the doctor, the doctor bills the insurance, the insurance pays the doctor. That’s how health insurance (and PIP insurance) works.

UIM is substitute or “floating layer” liability insurance in our state. You only get one opportunity to present your entire claim (medical bills, wage loss, pain & suffering, etc.) to the UIM adjuster because she will only be issuing one settlement check.

It is similar to presenting your claim for damages to the at-fault driver’s insurance. It will not pay for ongoing medical treatment, either. It will require you to present all of your claim related evidence (which includes all of your medical bills) at one time, for one settlement payment.

Additionally, UIM insurance only kicks in if the at-fault driver’s insurance company agrees to pay out the maximum coverage amount on the at-fault driver’s policy.

Let me give you an example. Our firm once represented someone who had catastrophic injuries from a car accident. The client’s PIP insurance paid out the client’s $10,000 in PIP coverage in just the first few days. The client had no health insurance, so her doctor’s agreed to continue to treat her with the promise that they would be paid once the client settled her claim against the at-fault driver. Ultimately, she required about $100,000 in medical treatment, so there was $90,000 in unpaid medical bills.

When she finished treatment, we gathered all of the evidence of her claim (medical records, paid and unpaid medical bills, wage loss documents, photos of the damage to the cars, etc.) and presented it to the at-fault driver’s insurance company. That driver’s policy had a maximum coverage amount of $50,000. We argued that our client’s claim was worth much more than $50,000 and they agreed, so they sent us a check for the maximum – $50,000.

Once that check was received, we presented the same evidence of her claim to the client’s insurance company. Her policy had a UIM limit of $500,000. After negotiating, we agreed that the client’s full claim value was $350,000. Since we had already been paid $50,000 by the at-fault driver’s insurance, her UIM adjuster sent us a check for the remaining $300,000.

That is how UIM insurance works. They won’t issue payments for individual medical visits. I really wish that they did, but they don’t, so the best option for you at this point is to talk to your medical providers to see if they will agree to continue to treat you in exchange for a promise to pay when the case is settled.

Jul
11
2012

Medicare Secondary Payer Recovery Portal Step-by-Step Review Pt. 1

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After signing up for the new Medicare Secondary Payer Portal website last Thursday, I was disappointed to learn that to complete the sign up, you have to wait for CMS to send you a code, which you use to to finish registration. Boo.

Having said that, I was pleasantly surprised to receive the code in the mail today, just three business days after I started the registration process. CMS must have automated the letter delivery process. Yea!

I hurriedly entered the code with visions of accessing my client’s claim history with ease, only to find another unwelcome layer of bureaucracy. When the code is entered, you are directed to print out an agreement, sign it, and send it back by email, fax or mail. I opted for email. But that still means a person has to do something for me to get full access, which means more time. Boo.

I’ll post when I’m “approved” to take the next step…let’s hope it’s the last.

Jul
03
2012

MSP Recovery Portal is Up and Running

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The Center for Medicare Services (CMS) has just premiered it’s new Secondary Payer Recovery Portal, which promises to streamline the delivery of crucial information attorneys need to protect their clients in a personal injury recovery.

For years, the MSPRC has struggled to deliver the lien information attorneys need when resolving their clients’ injury claims. Hours on hold and months for written responses were the norms attorneys suffered with when trying to comply with Medicare’s antiquated reimbursement process. Recently, CMS let the contract with the vendor that had been administering the reimbursement process expire, letting another vendor take over the duties temporarily. The result was immediate: better response times and more efficient lien resolution. But the problems of the past still plagued the process.

Last year, CMS announced that it was developing a web-based portal, similar to its popular MyMedicare.gov website, which would give beneficiaries and their representatives instant access to information that traditionally took months to receive.

Today the registration process has opened and anyone with a Medicare reimbursement obligation (or a client with one) can register for access. A username and temporary password will then be mailed to the registrant, so I cannot provide any feedback about the portal itself, but this promises to be another step in the right direction for CMS when it comes to lien resolution.

Stay tuned – I will follow up on this post when I have had the chance to test drive the system. If you’re like me and register right away and let me know what you think.

Jun
20
2012

Insurance Companies Lose, Consumers Win In Federal Court

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Big news today, as the Ninth Circuit Court of Appeals made its decision in a case that consumers and their lawyers have been anxiously awaiting. CGI v. Rose is a case where a consumer used her employer’s health plan to pay for medical treatment after a car accident, and the employer argued that all of the settlement money belonged to them, not the consumer.

The Court of Appeals decided that while the employer is entitled to some reimbursement for what they spent on Ms. Rose’s medical treatment, they can’t take the whole thing. That decision is consistent with another one just decided by the Third Circuit Court of Appeals, called US Airways vs. McCutchen.

This is a great win for consumers and for the lawyers who fought this issue.

Mar
15
2012

Insurance Company Lies to Fool Claimant

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When making injury claims, people expect that insurance companies will try to dig into their personal information to discover something that will drive down a settlement. What they don’t expect is that the insurance company will commit fraud to do it.

I was shown a form by a client that was sent to her by the insurance company of the person that rear-ended her on the freeway. The insurance company told her that it needed her to fill out a form that was “provided to us by Medicare.” The minute I looked at the form, I knew it had been altered.

The first question that the real form asks is if you are a Medicare beneficiary. If you say yes, it says to go onto the second section. If you say no, you are supposed to skip the rest of the form, sign, and you’re done.

The form the insurance company sent had just one line deleted. Guess which one it was? Yep, the one that said if you weren’t a Medicare beneficiary, skip to the end. By doing that, the insurance company makes the person filling the form out think that they have to complete the whole form, which asks for:

  • Address
  • Date of Birth
  • Social Security Number
  • Medicare Claim Number

All of this information can be used to get private information about you without your consent.

The company that does this is not a small one. It is an insurance company that advertises on TV and claims to give good service. The fact that you are not that company’s customer does not give it the right to try and trick you out of your personal, private information.

The best way to ensure that you are protected from this kind of treatment is to get help. If you are making a claim with an insurance company for injuries caused by someone else, consider talking to an attorney with the experience to stop this kind of fraud, and ensure that you are treated fairly.

Dec
08
2011

Hiring an attorney for a personal injury case?

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Yesterday I had the opportunity to attend a presentation by a lawyer who used to get paid by the insurance companies to defend people who were at fault for causing injuries. His topic was essentially what insurance companies really look at, when deciding to offer a higher settlement. Here are the most important factors, according to him, in no particular order:

Is the injured person represented by an attorney?
Who is the attorney that is representing the injured person?
Will that attorney file a lawsuit if we don’t offer a higher settlement?
Will that attorney take the case to trial if we don’t offer a higher settlement?

While there are certainly more things that insurers look at, being represented by an attorney who is willing and able to take your case to trial is really important. Consider carefully the attorney that you choose to represent you, because that can make a great deal of difference.

Jul
06
2011

Pain a struggle for doctors to treat

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Pain is one of the most talked about (and least understood) of the things for which people recover damages. An article in the Wall Street Journal recently talked about how doctors struggle with pain.

Wall Street Journal article

The article discusses how doctors are moving away from quantifying pain. Instead they are looking at the limitations pain causes. I think this is a step in the right direction.

Think about it. When you are asked, “How bad does it hurt?” your choice of responses is limited to “a little” or “a lot.” Those respones can be interpreted in many ways, too; frequency, intensity, area, sensitivity – there are so many qualities to pain it’s nearly impossible to be comprehensive.

However, when you put that pain into the context of everyday life, you identify the quality of that pain by making it relatable to the person with whom you are trying to communicate. “I used to be able to sit for hours on end – now my back pain forces me to stand up and stretch every 10 minutes.” The ‘amount’ of pain becomes less important than the limiting aspects of it. The way pain disables you, is just as important as feeling the pain itself, when it comes to recognizing it as a compensable damage.

If you are suffering with pain, or represented by someone who’s job it is to describe your pain, look for examples of how that pain limits your daily activities. Sitting, walking, opening doors, lifting, bending – all of the things we take for granted each day are signs of pain. Anecdotal evidence can be very compelling. When you relate moments in time, you are taking the listener with you and putting them in your shoes – giving them the opportunity to consider what the disability would mean to them under the same circumstances.

Jun
25
2011

Corporate Attacks on Civil Justice Revealed in New Documentary

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Check out this post on the Daily Beast, about a documentary on HBO tomorrow. It reveals the little known truth about the McDonalds coffee case and others, and it might just give you some new perspective on the efforts of corporate America to close the courthouse doors to individuals.

The Daily Beast

Dec
27
2010

Back Pain Treatment Ranked in Consumer Reports Survey

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Consumer Reports Health surveyed patients suffering from back pain and asked them to rank the effectiveness of the treatments they tried. The leader among everything was chiropractic. Chiropractic treatment is often thought of as “alternative” because it does not follow the model of traditional medicine – prescribing narcotics and NSAID’s (anti-inflammatory medication).

Here’s a link to a video overview of the study’s results:

http://www.bing.com/videos/watch/video/beating-back-pain/q90h9c2a?rel=msn&from=sharepermalink

As an attorney representing injured people, I constantly fight a stigma that has attached itself firmly to chiropractic treatment as “out there.” My own anecdotal experience is similar to this study, with chiropractic and massage therapy providing the most consistent results for those recovering from soft tissue structure injuries (the stretching and tearing of muscles, tendons, ligaments, etc.).

My hope is that a survey like this will aid others in seeing the real benefit that chiropractic and massage provides those with pain along the back and spine.