Blue Cross/Blue Shield is a bad corporate citizen for my clients

NeuwirthLaw Case Matters, Insurance, Slip and Fall

 

Imagine this situation happens to your friend, Sally Slipper. On a lovely spring day, Sally walked to a nearby bank on her lunch hour. She rarely took time for lunch from her job as an Administrative Assistant. As she was going to cross a busy intersection, she was watching traffic, the changing lights, and the blinking walk signs. Sally trips and falls on the sidewalk next to the walk sign. She is embarrassed at being on the ground in the middle of the day. Her pants are wet and dirty and her knee is bleeding through her pant leg. But, her right wrist really hurts.  She looks down and sees the sidewalk is all broken up around a manhole cover and cement pieces are missing. She didn’t see the broken sidewalk before she fell and thinks to herself that she would have seen this and avoided it if she were paying attention. Her wrist is really tender and starting to swell. She calls her boss and he tells her to go to the ER. At the hospital, she is told she will need surgery. She is embarrassed and scared that she will lose time from work. Sally needs her paycheck but can go for a few weeks without it.  But, she cannot type without her wrist being in good shape and she will be in a brace or cast for a while. She is going to have to cancel her weekly tennis match. Her tennis buddies are her social network and she will miss playing and dinner after. She goes home in a sling and tells her son about her day. He says call a lawyer. She refuses as she is embarrassed and still thinks this is all her fault. Ten days later, after having surgery, she decides to call the lawyer. She has never sued anyone before and it is a big decision to even make the case.  She just doesn’t want this sidewalk to hurt someone else and she is going to be without a salary and friends for a while.

Her case eventually settles after the Neuwirth Law Office gets involved! However, her health care plan, which she thought was the best in the area now wants to be paid back out of her settlement funds. Blue Cross is allowed to recoup or subrogate its claim and get its money from her settlement. This is thanks to a federal law called ERISA and US Airways, Inc. v. McCutchen, 569 U.S. 88 (2013) (thanks Kagan, J.) In McCutchen, the U.S. Supreme Court said it was just fine to take an entire settlement from an injured person. The McCutchen case was phenomenally poorly lawyered, but that is a story for another day.

ERISA allows Blue Cross to collect the $30,000 it spent on Sally’s surgery out of her settlement even though the injury was caused by a local business that was responsible for the sidewalk. So, Sally has to carve $30k out of her settlement.  Let’s say that her settlement is $150,000. Blue Cross will take $30,000 and her lawyer takes $50,000 and Sally ends up with $70,000. You could imaging Sally being pissed at either Blue Cross, her lawyer, or both depending on what Sally is like and how she feels about the settlement.

My beef with Blue Cross is that they are uniformly unwilling to reduce their liens or claims on cases. If Sally and I had never pursued her case Blue Cross would have gotten zero, zip, nada. They could conceivably make a claim against the business that owned the sidewalk but never do it seems. Instead, they wait for me to do my work and then appear with their hand out. All I ever want for my clients in these situations is more money in their pocket. Usually, a health care plan will discuss settlement and reduce their lien by 20% or so if not more. Often, while not legally required, this takes into account my work and that they would not have received anything if the case were not pursued. Blue Cross likely has a policy saying we ain’t doing that or Go fly a kite.

What is Great Customer Service in the Legal Profession?

NeuwirthLaw Case Matters, Law Practice Management, Medical Malpractice, Product Liability, Slip and Fall, Standard of Care

Great customer service is a critical element of my business. I cannot compete with Morgan and Morgan for stupid ads. I cannot offend people like Top Dog Law. I cannot gather as many negative yelp reviews or complaints to the disciplinary board of Pennsylvania as my larger competitors. But, what I can do is listen to what you are going through, connect the dots to what I think your future medical condition will look like, and coach you through the process of getting better and getting compensation for your injuries. People come to me disappointed in other large law firms because they simply could never talk to a lawyer. Their calls were “managed” by a claims paralegal and nobody took the time to update them on what was going on in their cases.

I was born in New York City. I am impatient and demanding by nature. To call me contrary bear is a badge of honor. When I was in my first semester in law school my contracts professor called on me in one of the first classes of the year to grill me about a case in our homework assignment. The professor called randomly on me in front of a class of my fellow 1L’s or first year students. He asked me questions and I gave him my responses. In his sardonic manner he finished the questioning by saying, “You are planning a career in litigation, Mr. Neuwirth?” I had no idea what he was talking about. To me, being confrontational or contrary was simply the way I was. It is who I am. I ended up in the Queens District Attorney’s Office in New York City. The professor was right and more insightful than me.

Anyway, for the most part, I expect and demand really good customer service if I am paying for it. I don’t like being treated like crap and I don’t think anyone does. However, if you cannot talk to a lawyer on your case and you are going to pay them a big chunk of your settlement, how do you know if you are being treated well or poorly? You don’t. As a personal injury lawyer, I have to balance a volume of cases that are in a wide variety of stages. Some just came in and some are on the eve of trial. But, and it is a big but, by the time we get to trial, I want my client to understand what has happened along the way in their case. I want them to know that they said something harmful to their case in the medical records or that a jury may not believe their lost earnings are real, or they made a weak or poor impression at their deposition. Surprising a client at the end of the case is poor customer service.

Do you send expert reports to your clients? I do sometime and sometimes I don’t. That depends on the client and their educational level. But, I really try to keep everyone in my case load aware that I know their case and want them to understand that their case is moving along as expected. For most clients, this is the only interaction that they have with the legal system other than watching tv. I have a habit of telling people that there will be no action on their case for three months after we file suit and I will work on other people’s cases during that time. I also have a habit of telling people that what we lawyers call a “jurisdictional limit” is just a legal requirement. When I send a complaint to a client to review, the first question from everyone is always, “Do you think my case is only worth $50,000?”  In fact, we have to tell the Court whether the case is worth more or less than $50,000. It means nothing more than that, but telling the client ahead of time the answer shows the client that I have their concerns and questions uppermost in my mind.

Paul Frankel Died

NeuwirthLaw Best of

A 93-year-old friend of my family’s died recently. His death was expected and to some extent a relief. He had spent the past five years or so in a difficult state. However, he was a Holocaust survivor and his story needs to be repeated and not forgotten. Paul lived to age 16 in Transylvania, Romania of Dracula fame. His father was a doctor and he lived with his mother, father, and brother. When the Nazis came to town, they kidnapped all of the Jewish residents and sent them off to Auschwitz. Paul’s father and mother were killed there. Paul and his brother were shuttled around to a variety of concentration camps and ended up escaping the Nazis during a transfer. Neither knew the other had escaped and they eventually reconnected in the United States after the war. Paul ran a successful dairy business servicing the US Military for much of my youth. He was a large serious fellow with a loving family and always a handful of dogs around and opera playing in the living room. Paul liked messing around with lawyers and was very supportive of me as a young lawyer. He will be missed, but sadly, his formative teen years and the awful circumstances of the Holocaust to some extent transcend him as a person and make him a symbol for all right-thinking people to remember that there is evil out there in the world.

DO YOU DRIVE FOR UBER OR LYFT? DO YOU USE THESE SERVICES?

NeuwirthLaw Auto Accidents, Insurance

These days, you either works for these services or use them. It is very easy to get signed up to work for these services and even easier to use them. What happens when you or your driver are in a car accident?

Well, regular car insurers have made it very clear that they will not cover the gig worker who is driving their personal car for their jobs. If you ask the gig worker how their insurance works, as I often do, they are wholly unable to explain if they are covered. This is not surprising. Most people from smartest to dumbest cannot explain their car insurance. Insurers like you to be in the dark because it helps them save money or screw you in common parlance. Insurance is a necessary evil.

But, let’s say you are driving for Uber, you are on your way to pick up a fare, and are hit by someone running a red light.  Pennsylvania law requires you to carry at least $50,000 bodily injury per person and $25,000 for property damage. If you actually are carrying a passenger, then you have to carry or uber/lyft has to carry $500,000 for death, bodily injury and property damage. This is far better coverage than the state minimum of $15,000, which is embarrassingly low and not terribly helpful for anyone.

So, this is good for passengers or pedestrians or others hit by drivers. But….. and it is a big but, there is no legal requirement that the driver carries insurance for himself or uninsured / underinsured motorist coverage. This is a flaw or hole in the law. It is there intentionally at the impetus of the insurance industry to protect themselves. Nevertheless, this is bad for drivers because if they are in a hit and run (uninsured) or hit by someone with minimum coverage (underinsured), then there may not be any coverage or insufficient coverage.

Most gig economy workers are not well-educated in the insurance business and I try to explain to them as I ride around in their cars, but it is something that they need to be made aware of for their own safety.

LOST WAGES

NeuwirthLaw Auto Accidents, Insurance

So, you are driving your uber eats car along and you are hit by another car. What are your lost wages? Well, basically, you will have to show what your past uber eats wages are and that you are physically unable to work further. That is really hard to show unless you are undergoing surgery with persistent problems after surgery. The law says we can prove lost wages without an expert for past lost wages or wages from the time of crash to trial so that is not terribly difficult.

But, what if you are working under the table? Can you claim these losses? Nope. That is the risk you take in not paying taxes. You cannot document this income in any way, so it cannot be asserted as a loss. End of story there.

What if you are self-employed? These are the hardest legitimately claimed losses to collect. Often, the self-employed person has some documented wages but a lot of their losses come from not being able to put time into the business. The small business losses often come from jobs that the owner missed out on getting because they were recovering from their injuries. These are nigh impossible to prove.  And, nigh is being generous.

What about real wage losses if you are over 65? These are very provable and collectible, but the jury has to believe that you would have kept working and were ABLE to keep working. So, your average non-physical laborer can likely make a stronger claim for future losses than your auto mechanic or construction worker as these jobs take a huge toll on people physically.

How do we prove these losses? Using the regular doctor experts plus a vocational expert to establish that you needed to use your right arm for your job and cannot do so fully anymore because of your surgery, hardware, scarring etc.

OFF TO GO SKIING

NeuwirthLaw holiday

I am off to Park City, Utah to hit the slopes with my family next week. Skiing is a hobby and something that global warming has seriously affected. Out west, they have crazy amounts of snow right now. But, along with the awesome pow, it seems that there are some awesome lift ticket prices too.

I know that it is an expensive sport and a tough business for the ski operators, but still, the prices are rather surprising.  $120 to ski at camelback in the poconos is a bit painful. At least they have snow out west.

Skiing is a bit like golf without the practice. it is a lot of fun under the right conditions, but unless you live out west or in Vermont, it’s a very expensive day or week.

To me, there is nothing more fun than dropping in on a challenging black diamond, meeting your kids at the bottom in one piece with a good sweat going, followed by a cold beer and a nap after about ten runs.

EXPERT WITNESSES / LAWYER WRITING

NeuwirthLaw Case Matters, For Lawyers, Law Practice Management

Every case of mine needs at least one expert witness because my client and I are not allowed to say that an arm was fractured or a herniated disc herniated without a doctor saying it. Them’s the rules. So, I spend a decent amount of time and effort reading the experts’ reports both from my side and the opposing side. The content of the expert report matters. The presentation of the report does not usually matter too much, but it bothers me when an expert has too many typos.

It is not hard to say to an expert, you did not read your report before you sent it out did you? Or, you did not list my client’s deposition in your report, so you did not read it. Or, you called my client Sally, him, etc.  She’s not a him is she? No, she’s not. It opens up a raft of semi-aggressive cross on how the expert is just doing this for the money, not for justice, how they do so many reports, they don’t have time to be careful, and who wants to listen or trust an expert who produces garbage looking reports.

As you may have figured out, I am a lawyer and take writing seriously. I try really, really hard to produce writing that is clear, concise, and proofread. Occasionally, the Neusletter audience lets me know when I have misspelled or failed to proofread.

I don’t mind a typo or two in a four-page report. I think any decent expert could respond to a question about typos by saying well I spend all my time working on patients and less so on their reports, counsellor. But, I am currently working on a case where I have four reports to deal with and each has a variety of typos, mis-wordings, poor grammar etc. At some point, that just reflects on me and looks shabby or shoddy. Why four experts? It’s a biggish case. The client was a pedestrian struck by a car and was making $200,000 a year in salary. So, that case needs an expert in orthopedics, an expert in physiatry who can associate the ortho injuries with the job difficulties, and then an expert to project future income losses.  Another expert is needed for another injury that is harder to explain.

So, while I am paying $1500 or more per expert report, the quality of expert report writing is crap. I now must follow up and tell their admin assistant to correct the spelling in paragraph four, put a period in paragraph three, and correct the year or the date etc.  It’s annoying. Doctors and their offices don’t use redlining or google docs and so this is a cumbersome process that simply delays things.

It really does not change the nature of what the expert will testify to. But it sends a subtle message to the defense that they cannot accuse the expert of being sloppy because his reports are fully proofread by me. Is that my job? I guess so. I have always proofread things. I get that people don’t write well or carefully, but the work product that you produce can expose your expert to self-inflicted wounds.

WHAT MY CLIENTS GO THROUGH

NeuwirthLaw Auto Accidents, Case Matters, For Lawyers, Insurance

I write a lot about the business of personal injury law. Today, I am going to write a little bit about things I don’t often write about and that is what my clients go through before and during their cases.  Here are two examples:

Sally is a new grandmother and very excited about her new role and spending time with her daughter’s first born. Sally works remotely for a company that values her and for whom she has worked for years. Sally’s husband died 8 years ago, and she has a boyfriend in Pennsylvania. Sally has a springer spaniel named Lulu and Sally is a serious pickleball player and fairly active. Sally is a no-nonsense 60-year-old woman who mostly just wants to be treated fairly.

Sally is on her way home from shopping for groceries on a sunny day and listening to the report of Punxsutawney Phil’s latest prediction. Sally notes that Phil is a blip in time before the super bowl and before spring. She has a left turn arrow and is making a left turn at a large intersection in a nice suburb and an idiot driver runs a red light and absolutely crushes her newish Ford Bronco. The impact was really pretty shocking. Her airbags go off and blast smoke and glass everywhere.  She had to pee on her way home and the seatbelt caused her to pee on herself. Embarrassed about the pee and somewhat disoriented, she is super worried about Lulu who was in the car but not wearing a harness or doggie seatbelt. A whole bunch of drivers stop and an off-duty cop comes rushing to help. 911 is called and Sally takes Lulu home, goes to the bathroom and changes clothes and goes to the ER.

Sally’s car is destroyed. Her trip to see her grandson must be put off for two months because she is in so much pain. Sally has birthed children and had surgery before, but the pain of a broken sternum is really like nothing she has felt recently. Every breath hurts. Every breath reminds her of the idiot driver and how he screwed up her life for the next year or so. She is not worried about her job as they value her and will wait for her to return. But pickleball is out for the near future and she is just mad, pissed off, frustrated.

She comes to meet with me and we discuss that this is a straightforward case. The insurer doesn’t see it that way because Sally did not go straight to the ER by ambulance and the sternum fracture did not show up on x-rays until months later, she has no lost earnings to speak of, and the annoyance, pain, and suffering simply don’t matter to Progressive. Sally comes to rightfully believe that Flo is a fraud and learns that personal injury lawyers perceive Progressive as the worst of the worst insurers to deal with.

Sally must file a lawsuit and sit through a deposition. She is a dry and unemotional person as befits her undergraduate degree in economics. She does okay at her deposition because she has a hard time expressing her emotions outside of idiot and asshole and the whole deposition is focused on her and her injuries and not on the stupidity of the other driver.  Her case settles against the idiot driver for $85,000 but not the full $100,000. This settlement is okay or acceptable and there is a second lawsuit to come against her own insurer. That is a story for another day.

Highway Fatality and Truck Underride Cases

NeuwirthLaw Auto Accidents

Periodically, there are terrible fatal crashes on our highways. You hope that you are never involved in them. As a lawyer who handles vehicle crashes, I encounter these cases periodically. I am working on a new case involving a drunk driver who killed his front passenger on a local highway after a night of drinking. The driver will likely go to jail for a decade or so.

How do these cases play out in the civil system? Well, first, in any fatality or near fatality there is a lot of police work done to document the aftermath of the crash. Someone may face significant jail time out of these incidents and hence documentation of what caused the crash is important. This is very helpful to me as a civil lawyer because there are lots of photos and measurements that eventually explain and document what happened. Often, the victims are either deceased or facing criminal charges. As a result, usually there will be no statements about what happened from the driver or passengers.  Sometimes there will be statements found in the medical records at the hospital. But, usually the facts don’t lie and generally the cause of the crash can be pieced together.

I always have to evaluate whether there is a dram shop case or a vehicle underride situation or a roadway design defect.

Dram shop cases are lawsuits against bars or restaurants that overserve obviously intoxicated patrons who then crash their cars. These are tough cases that are often dependent upon good surveillance video or testimony from other people at the party or event.

Truck underride cases involve collisions in which a car slides under the body of a truck—such as a tractor-trailer or single-unit truck—due to the height difference between the vehicles. NHTSA categorizes a crash in which any portion of a passenger vehicle slides under the body of a larger truck or trailer as an underride crash. In other instances, the striking vehicle may pass completely under the struck vehicle and exit the other side, shearing off the roof of the striking vehicle. These underride crashes can lead to severe injuries or fatalities.  There has been a significant push to improve truck safety around vehicles by putting cages or other barriers to prevent underriding.

Roadway design defect cases are less common on highways and more common on local roadways with intersections or vehicles in close proximity to each other causing near misses etc.  Sometimes, wrong way car crashes are due to design defects but they also usually involve alcohol.

Editor’s NOte: Good article on Pro Publica regarding NHTSA’s role.

Go/No GO

NeuwirthLaw Case Matters, For Lawyers, Law Practice Management

Deciding whether to file suit on a case is often just a business judgment on my end. Based on having done this for 20 year plus, is this a case that is worth putting into suit? Recently, I have had the difficult conversation with clients in two cases that simply did not make sense to put into suit. What does this look like? Well, let’s say you sign up a client and their liability or negligence claim is okay but not great. Perhaps the way that they fell is a little questionable, or the car crash was maybe 50% their fault. In those cases, I don’t usually want to file suit because there will always be a defense and defense lawyers eat that stuff up. But, explaining that to a client is tough and usually the client will be pissed at the lawyer, even though the case will get harder not easier once suit is filed.

The insurance company usually recognizes that the case is weak and makes a commensurately crappy offer. So, the client is faced with a lawyer who wants to drop their case and a poor offer. On the other side, in a strong case with strong facts, clear negligence, and solid injuries related to the incident, insurers will make decent offers seeking to get the case resolved before they must make real payments later on.

But, in the iffy case situation, no good will come of pursuing the case into court. Getting this across to the client is not terribly hard, but it is not fun and doesn’t result in good future client relations. The fact of the matter is that you took the client’s case and guessed wrongly that it was going to be worth more than it turned out to be worth. So, before I spend more money or time on a case, it needs to be settled, dropped, or referred out to another lawyer.

On the flip side, when deciding which cases in the pipeline to file suit on, usually I just pick the strongest case with the best damages and put that case in next. Few personal injury cases get better with time beyond a year or two. Usually within that time period, a person will have had surgery or will be largely better.  In the few cases where someone has serious permanent injuries, those cases need to go into suit first or move to the head of the line because there is no reason to wait for them to get better.