Delay, Delay, Delay, Delay………..

NeuwirthLawCase Matters, Courts, For Lawyers, Insurance, Law Practice Management

Delay of Game

Delay is pernicious. For many lawyers, it is a bit of a sign of success. You are too busy to get to even your most important cases because there are fires to be fought on other cases. My clients don’t care that I am successful or that I am over busy or that I am working on someone else’s case. Clients just are not used to waiting for the time periods that are routine in litigation.

My clients are respectful of my time. Most conversations start off with “I am sorry to bother you.” To me, that is the sign of a good client. They respect my time but understand that delay does not help them. Delay also does not help me or my business.

Who does delay help? Really, delay helps two participants. It generally helps the Defense in any individual case. It also helps the Court system and lawyers as a group.

Why does it help the Defense? Well, generally, personal injury cases do not get better with time. Clients generally get better or reach their baseline. Or clients will adjust to their injuries or heal and look better three years down the road than they did when they were still healing at a year from the accident. Plus, clients get sick and tired of having to deal with the Court system’s delays and uncertainty. Plus, they get sick of having to keep their lawyer involved in their everyday life. So, delay encourages settlement just for the resolution they bring.

Delay also helps the insurance carriers. If you know that you have a bad injury case, would you rather pay now or three years from now? Probably three years from now. Yes, you may have to pay legal fees of $40,000 or less in a routine personal injury case, but interest on the million dollars would cover that easily. Is there any reason to settle a case early if you are an insurer? Absolutely not.

Delay also allows the system to function, though the average client will not understand that. Most clients are blissfully unaware of routine written discovery like interrogatories and requests for production. Most clients are unaware that both sides in litigation in personal injury cases routinely fail to comply with what the rules of civil procedure require. This means that delay is just accepted and routine. Even if the City of Philadelphia owes me answers to interrogatories, I know that they will not comply with the requirement to answer them in 30 days. I also know that I will have to go to court to compel their production. So, to actually get answers to interrogatories is usually a 90-day process or more. It’s just a delay that is baked into the system.

Delay also allows for lawyers and judges to go on vacation or see their families. For example, very little gets done between Memorial Day and Labor Day no matter how much we try and push things. So, that is a delay. It may seem like a small one to those of us lawyers, judges, etc. but to a client it just seems interminable.

Can we fix this? Usually, the only fix is to talk with the client and explain that the system has built in time frames or schedules. This is fairly easy to do in Philadelphia where we have pretty ironclad court ordered schedules for routine personal injury cases. Clients, lawyers, and all involved know roughly how things should proceed. Most clients will accept what is court ordered.  In other counties, there is no such thing as a court ordered schedule. We are not dealing with the endless litigation of Bleak House or the Dickens novel, but it still is delay. And, in a world where everything is done more efficiently, faster, etc. the legal system still takes a long time. Ask Donald Trump what his defense strategy is? Delay.

Patient Steals Operating Device from Operating Room

NeuwirthLawFor Lawyers, Medical Malpractice, Standard of Care

So, this is lawyer humor for when surgeons unintentionally leave surgical material behind in patients and stitch the patient up and send them home. Neither the patient nor the doctor realize that a sponge, clamp or other item was left inside the patient until the patient starts having pain in the area. Sometimes, the pain will not appear for months or years. Once the retained instrument is identified, surgery is almost always the only proper response.

These are called Never Events by Medicare and all others in the hospital field. They are never supposed to happen.  There was a recent Inquirer article reporting that these incidents still occur with some regularity.  The recent data I have seen reports that 1 in 1600 surgeries have a patient with a retained item.  This sounds pretty high to me.

I am working on a case where a piece of a robotic surgical device fell off inside a patient and was not recognized as missing. A year later, the patient has severe pain in the area and needed a second surgery. Easy case, right? Yes. In the past, the most common device left behind was a surgical sponge. The Operating Room teams learned that they had to count sponges going in to make sure that the same number came out.  Many items are metallic and xrays detect them before closing a patient. Other items can be radio tagged. However, for now it seems that having a robot performing the surgery allows for pieces to fall off and be stolen by the patient!

Be safe out there.

 

WHAT MY CLIENTS GO THROUGH

NeuwirthLawAuto Accidents, Case Matters, Insurance

Here is a typical scenario. Rick was driving his motorcycle to work at his job as a bookkeeper for an auto parts store. He had always liked motors and machines and loved riding a motorcycle on a nice sunny day. On this particular day, he was stopped at a red light on a small side road when a kid driving an F-250, which is a large pickup truck, turned left in front of him off the main road. The kid did not leave enough room or did not see him and Bam! Rick was hit head on. Thankfully, the windshield and front tire took some of the impact and the truck wasn’t going more than 25mph. But, Rick had an instant thought of OMG I’m dead, then a rush of pain as his nose was hit by the windshield of his bike. His nose was instantly broken and bleeding everywhere. After the crash he jumped to the side of the road but could not get his left leg freed from the bike easily. A bunch of people jumped out to help him and brought him off to the side of the road. The other driver was very nice and apologetic and said he did not see Rick. Rick was just pissed off and covered in blood. The police took his bike and EMS took him to the hospital. Rick now had to begin the process of healing. He spent a week dealing with his bike insurance claims and explaining the situation. He went to work with two black eyes and a swollen face. He got better over the next month but could not walk up his stairs. His wife finally got him to go see a doctor about the stairs problem. It turns out that while nothing was broken, the big quad muscle was injured and was not working properly. So, surgery was recommended. Rick was no fan of doctors and chose physical therapy but that simply did not change the fact that his leg could not lift up easily. So, six months after the crash, he had surgery to repair the torn quadricep muscle and began physical therapy again. All because the other driver had to have a big truck and was simply not paying attention.

ARE YOU ROTTING? TIK TOK BANS AND WHAT THE HECK ARE WE DOING WITH OUR TIME?

NeuwirthLawBest of, In the News

My teens call it rotting when you are sitting on your phone watching videos for large chunks of time. Sometimes slang gets it right. While getting ready for work today, I heard on CNBC that Americans use tiktok 75 minutes a day! Wow.  That is a lot. I would guess that I only use about half that, but still it’s ridiculous. What does this have to do with personal injury?

Well, truly, people are attached to their phones and it’s causing havoc. If you are checking ticktok or snapchat while driving, you are endangering everyone around you. It’s just the truth. Nevertheless, people do a lot of stuff that is dangerous to themselves and others. That’s what I am here for.

The scary thing is watching people driving and realizing that they are on their phones as you pass them. Most of the weird inexplicable crashes these days are caused by people on their phones. What used to be drunk drivers causing crashes in the middle of the night on a weekend is now something that occurs in broad daylight on a Wednesday.

Dangerous Dogs – People love their pit bulls but they make an awful mess when they bite

NeuwirthLawCase Matters, Dogs & Pet Related Law

I settled a case recently for $300,000 involving a really savage bite by a pit bull. The dog had never bitten anyone before, but his bite was so bad that it took a year to heal, left my client with permanent cramping in her torn muscle, and it looked like she had been bitten by jaws. The dog was, of course, named Hercules.

Pit bulls are loved by their owners as I hear in every dog bite case I handle with serious injuries. However, for the most part, they are not used by police forces for two reasons that directly intersect with my cases. They have a strong prey drive and a very forceful bite. This means that unlike a german shepherd or other similar dogs, they have a crushing bite that causes injury regardless of situation and they attack like predator to prey rather than working dogs doing a job to subdue. Most articles about pit bull training reveal that police don’t use them because they are hard to train, hard to restrain, and do unacceptable damage when they engage someone. Same goes for rottweilers if you want another breed.

One of the unfortunate things about having a pit bull is that they are scary looking to a lot of people on the street and other dogs. This provokes a sense of fear or prey to the dog and the dog reverts to its predatory nature. So, well-meaning owners then don’t walk or socialize the dogs and instead keep them inside or in a fenced yard. Then, when the dog is faced with an unusual situation or a stranger, the dog has pent up energy and attacks the stranger in the situation. Plus, the attack is very damaging.

This combination of lack of socialization, viciousness, and an on/off switch that does not see shades of gray is what makes these animals a common source of personal injury cases.

I usually do not take cases where the only injury is a puncture of series of punctures unless children are involved. Further, it is rare that a dog bite case has to go into suit. This case actually went into suit and through depositions because of the severity of the injuries and other factors like the available coverage. Like most dog bite cases, I think everyone involved knew the case would settle eventually. The only question was when it would settle and for how much.

 

Judge Alito Gets Schooled By Sen. Markwayne Mullin

NeuwirthLawCourts, For Lawyers, In the News, Standard of Care

So, following hard on the heels of Judge Alito’s decision that Roe v. Wade was no good, our friends on the bench in the deep south just decided that fertilized embryos were also people.

None other than esteemed meathead Sen. Markwayne Mullin, Republican of Oklahoma, quickly piped up that he and his wife had used IVF to have children and that the fertilized embryos are people was not the position of the Republican party. Now Markwayne is not exactly who you want setting Republican policy or responses to Judge Al

 

ito but that is what we have come to.  Markwayne has four biological children, so figure a whole bunch of IVF was used to get his wife pregnant and hence a whole lot of fertilized eggs were lost/killed/died in the process. Further, Markwayne believes that there should are no exceptions for abortion.  Life is life and rape, incest, life of the mother be damned. Markwayne never graduated college, so the whole science thing is probably lost on him. Also, the whole notion of a slippery slope is plainly lost on him as well.

Ah, Judge Alito, things get complicated quickly when you fail to appreciate that most people don’t see things the way you do.

Alito handed the democratic party a winning issue and now they have a more complicated slippery slope argument to mess around with. If life begins at conception, as our republican pro lifers have been wont to argue, then surely the fertilized embryos used in ivf are life and hence people. Seems pretty simple. But, the ivf process is a tough one and often more embryos are implanted than are needed and some have to be destroyed, killed or whatever term you like. It is very possible that Markwayne Mullin’s family was involved in the murder of people if you want to look at things that way. It seems that is how Alabama looks at things bec

 

ause access to IVF disappeared immediately upon that ruling and the legislature in Alabama jumped in to say that there is no liability to providers for the death of an ivf embryo. This is going to get very complicated for our pro-lifers. When they used the cudgel of allegedly late term abortions to berate the pro-choice majority of americans, now they have Markwayne Mullin saying that life doesn’t begin at conception.  Comically stupid.  Thanks Judge Alito.

Why does this matter to me? In 1987, the Neuwirth Law was passed in France guaranteeing the right to contraception for women. Mr. Neuwirth was a French politician who shepherded the law through their legislature. I expect that Thomas and Alito and friends will eventually try to limit contraception because all of their other plans have worked out so well for America.  We probably need a Neuwirth Law here soon or Markwayne Mullin may have to step in again to protect us.

https://www.nytimes.com/2024/03/04/world/europe/france-abortion-rights-constitution.html

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

NeuwirthLawCase 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?

NeuwirthLawCase 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

NeuwirthLawBest 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.