PICKING CASES: Take the Case? Refer it out? Turn it down?

NeuwirthLawFor Lawyers

Do you want the client’s case???  One of the critical pieces of personal injury law is Case Selection. It simply cannot be overstated how important this is. While you need a steady volume of cases to make case selection an issue, that is a separate topic. Case selection is simply the 80/20 rule or figuring out what is the best use of your time and resources. For me, car accident cases are my bread and butter and keep the lights on and the bills paid, the kids in private school etc. The other cases like medical malpractice, products cases, slip and falls with serious injuries, suing the city and carbon monoxide poisoning, are the more entertaining and high value fights.

In the auto cases, case selection is fairly straightforward.  Assuming liability is clear, injury determines value along with a host of other factors. So, when a new person calls, I am listening for injury and makes and models of cars to guess at coverage. Fact patterns in North Philly are often plagued with hit and run drivers, serious injuries and not enough insurance coverage. The Pennsylvania State Minimum coverage is $15,000 and that is never enough for any injury. Fact patterns in the Philly suburbs often involve plenty of coverage, but inexperienced or out of control drivers in big cars and inevitably some blaming of the other party, traffic conditions etc. Usually, I assume that there is some element of texting and driving.

Nevertheless, there is always a lawyer willing to take a case of some lesser value than I like to mess around with. My average case takes about 9 months and every client with a strong case will tell you that their case was filed in court and took about 2 ½ years from start to finish. So, if I am going to take a case with real injuries, I want to be sure that the case is worth it for both the client and me and that we can get along for a year or longer. The last thing I want is a unhappy client. I should not take that case and try to learn from the mistakes where I do take those cases.

Even if I sign the case up and have a decent sense of valuation, I may still refer it out to other lawyers for any number of reasons.  I try to do that sooner than later in the case and preferably at the very beginning.  I refer out cases in medical malpractice, workers compensation, employment and any other area that I do not handle.  I often refer out cases that are too small or too large for me. I don’t like to handle class action cases or multi-expert medical malpractice cases. They require too much of an investment of my time and money.

Finally, I turn down cases most often when the client’s story is not supported by their medical records, the police reports or some other area that raises questions about liability.  If you were at fault, I am probably not going to represent you. There are simply too many other fights to have than fighting about who was responsible and then having to also fight whether you were injured or not.  Not worth the time.

Pan Mass Challenge

NeuwirthLawIn the News

After a two year hiatus for me, the Pan Mass Challenge Fundraiser for Cancer Research is Back ON and I need your help.  I have bicycled this event for 9 years.  We ride 200 miles over two days in early August in Massachusetts.  The first day is long at 108 miles from Sturbridge to the beginning of Cape Cod.  The second day we ride the entire Cape from Bourne to Provincetown. Usually, it is a beautiful weekend. I have a $6,000 fundraising goal (obligation). I match every donation dollar for dollar. The PMC raises $60 million every year, which is a crazy amount of money and every dollar goes to research.  PMC has raised $831 Million for Dana Farber since 1980.  We are truly a fundraising powerhouse to be reckoned with.  There is free Harpoon beer and Legal Sea Foods chowder and a lot of large businesses donate time, money, and effort to make the ride possible and enjoyable. So, if you can, please donate.  My donation page is:

https://donate.pmc.org/AN0051

and

you can even venmo at https://flowto.it/Nzf7KxfP?fc=0

 

Carbon monoxide poisoning and CO lawsuits

NeuwirthLawFor Lawyers

Carbon monoxide poisoning recently caused the sad and likely avoidable deaths of a family, which was visiting a resort in the Bahamas. CO reduces your red blood cells’ ability to bind with oxygen, so you will be breathing fine, but you will start to asphyxiate rapidly if you are in a room filled with CO. A standard blood test will show an elevated carboxyhemoglobin level and reveal the correct diagnosis. The treatment for CO poisoning is actually just plain old air or oxygen. The family would have a strong CO poisoning case against the resort. I handle a regular, but thankfully small, number of carbon monoxide (CO) death and serious injury cases. These deaths and less serious injuries caused by CO are thoroughly avoidable. In the Bahamas case, it appears that poorly vented air conditioning was the culprit. The deaths were preventable in three ways. First, any gas burning appliance emits CO, but the CO is not a concern if the CO is properly vented. So, we know that there was a malfunction in the venting of the CO. Second, CO detectors are cheap and effective in preventing this sort of tragedy. Here, the resort conceded that CO detectors were not in the rooms, though they are not mandated for use in the Bahamas. At lethal levels, the CO alarms would have sounded. The resort has rectified this oversight. Thirdly, the family was feeling poorly, was reportedly nauseous and tired the day before and were suffering the hallmark signs of CO poisoning. While feeling poorly on vacation abroad may not be remarkable, that plus an alarming CO detector would be.

Nevertheless, even though the CO detectors were not required by the Bahamas building code or law, the resort likely made endless written promises and advertised that its lodging was safe, secure, etc. If you are a business that invites customers to your operation, you better make sure it is safe for them. This is because in Pennsylvania and most states, you are considered a business invitee as opposed to a trespasser or passerby. Business invitees are entitled to expect the highest level of care for their safety from the business. What does this mean? It means that the business has a duty to inspect and discover problems that may endanger its customers or visitors. So, in the Bahamas example, the resort had a duty to make sure the rooms were safe for guests, which they plainly were not. In less unusual situations, the business has an obligation to not just react to things that happen. Rather, the business must investigate all potential dangers that it knows or should know about. So, neglecting routine required maintenance is a problem. Further, not hiring competent service technicians or other missteps can cost you if you are a business owner.

Uvalde, Guns, and Hubris

NeuwirthLawIn the News, Uncategorized

Stop school shooting – road sign

As a parent, human, and American, the disaster that was the school shooting at Uvalde cannot be more raw and upsetting.  This disaster was the result of the confluence of two problems. One is our gun crazy country and the other is the hubris of law enforcement.

Hubris means arrogance or an exaggerated self-confidence or belief in your own rightness and importance. The ancient Greeks believed hubris was a huge character flaw. In my professional work, I get to be the one pointing out the hubris and failures of people when they injure others through their ignorance and disregard of safety. Everyday people involved in a lawsuit are simply not used to being confronted and questioned about why they did something stupid and asked to explain it.

Unfortunately, in most of my cases, people simply do not do the basics of their jobs with predictably painful results. If you build something and it’s not to code, someone may get hurt. If you disregard driving laws, people are going to get hurt. If you fail to prevent obvious hazards, people will get hurt, and they will find me. TV and the media rarely reflect people taking responsibility for their actions. However, accountability comes at the end of lawsuits and generally years after someone screwed up and society has moved on to its latest disaster

I don’t have a solution to the gun problem. It is difficult to understand why you cannot rent a car until you are 25, but you can buy a gun at 18. The easy answer is that car rental companies recognize that teens and young people in their 20’s generally cause more problems and wreck cars. As a result, they simply say, nope, no rentals till you are out of that age range. Our government cannot do the same thing because they are simply hamstrung by too many compromising interests to list. I don’t know what the solution is, but I like the car rental approach.  But, what about the police at Uvalde? Here are these men and women in a small town in Texas, with badges on, carrying guns, and they can’t go do their job and hunt down a single teenager killing elementary school kids? They probably spent their lives thinking they were important members of the community, enforcing the law, etc. etc. etc. When it came time to act and do the right thing, they failed. I am guessing that you cannot sue the police in Texas any more than you can here in Pennsylvania. That’s sovereign immunity and a topic I write about periodically.

No amount of holding the police accountable will fix Uvalde’s families. It’s a sad statement about Texas, guns, law enforcement, and the inability of our society to act a little more like Enterprise Rent A Car. How hard is that?

 

We all make mistakes: Medical Malpractice

NeuwirthLawMedical Malpractice

 

Two exhausted surgeons with hands on their heads as a sign of congestion

I have been a lawyer for 25 years. I have not been sued for malpractice, yet. Nevertheless, if you are a responsible professional, you will have experienced periods of questioning yourself, others in your profession, or how better you could have handled a case, patient, customer, client etc. We are more highly educated and trained and get paid more money than most people for work that others cannot do. With that payment and training comes responsibility.

Often, malpractice cases involve surgery and death or other clear injuries and damages. I receive calls nearly every day from people who are very angry about poor medical care that they received from our doctors and hospitals. Ninety percent of these callers do not have a case that can be pursued in court. Why? Because, the problem they experienced has been rectified or fixed or they recovered. In other words, it is the rare case where a person suffers medical malpractice and has the damages to merit me bringing a case.

Medical malpractice cases are expensive to pursue. What does that mean? $60,000 is a round figure to pursue a medical malpractice case. What do you get for that? Two good experts, a lot of depositions, a lot of medical records, and trial in four years. Do you want to take an iffy case if that is your $60,000 on the line? No. What about if a hospital caused a seizure by accidentally injecting a person with the wrong medication, but the error is recognized, fixed, and the person is fine? Nope, not a case. Even if it was clear malpractice? Nope. Still not a case. So, I have to look for the true medical disasters or a case where anyone looking at it will recognize that it is a serious case. What does that mean? What does a true medical malpractice case look like? A doctor reads a scan and suspects you have an unconcerning kidney mass. Four years later, you are found to have kidney cancer and will die from that, but it could have been caught and death avoided. Or, how about a patient goes in for routine surgery and dies in the post-anesthesia care unit because a blood vessel was cut and the blood pressure dropped so low that the patient died, but nobody was paying sufficient attention to diagnose the falling blood pressure? Or the surgeon left the hospital and could not be reached when the blood pressure fell and internal bleeding was diagnosed. These things happen far more often than we would like to know.

Canada anyone? Changes to Roe v. Wade per Justice Alito.

NeuwirthLawIn the News

 

The U.S. Supreme Court often tinkers away on matters that do not affect us on a daily basis. Occasionally, they wade into the culture wars with predictably disastrous effects. The rightward tilt of the Court has always been there in my view. The current Court will never stand up for the individual. Usually, it takes the side of big business or those who got them to their position. This is not news.

The Court’s Dobbs decision throws a woman’s right to choose back to the States and the republican led states will outlaw abortion and the democratic led states will preserve a woman’s right to choose and will absorb a wave of women coming from red states.

In Pennsylvania, things are heading a little in the opposite direction. The Pennsylvania Supreme Court has a majority of judges, who ran as Democrats. In keeping with continuing Republican efforts to change rules that do not benefit their declining popularity, legislators are currently trying to change the way Pennsylvania elects its judges. The current PA Supreme Court has fought back against years of decisions that have benefited the insurance industry against the average citizen. And, with Dr. Oz and Doug Mastriano in the mix, it looks like Pennsylvania will remain a battleground state on a lot of national issues for years to come. While gerrymandering may be the root of all evil in politics, the Pennsylvania Supreme Court is just as frustrating to PA conservatives as the US Supreme Court is to democrats.

A Word from the Editor: Welcome to Summer

NeuwirthLawUncategorized

 

The last months  have been downright gnarly. Bad news abounds: shootings, war, soaring gas prices, SCOTUS–we even had Covid. So as we slide into Summer and a new Volume of The Neusletter, we hope that things turn around, and you get naught but tasty waves and a cool buzz, and that everything is fine.

All The Best!

THE NEUSLETTER

HOW WILL YOU KNOW A PERSONAL INJURY CASE WHEN YOU HEAR ABOUT IT?

NeuwirthLawCase Matters

 

Inevitably, a weird fact pattern means that you probably have a good personal injury case. I don’t know why, but it’s true. So, here are a series of weird ones from recent cases.

 

A Tree Falls In Frankford:

Frankford, as you may know, is a tough part of Philly with homes and yards chock a block on top of each other. One day after a storm a little old lady needed to have a limb cut down from a tree in her yard. Rather than pay a legitimate company to do the work, she hired someone with a chainsaw. They cut the limb down as requested. Unfortunately, the limb fell and hit my client who was standing with his back to the tree work. The limb hit him and knocked him unconscious. He was taken to the ER with a bad concussion and a shoulder fracture that needed surgery. My client found a lawyer, me, and I sent a nice letter telling the lady what happened. Later, in depositions, she accused my client of making the whole thing up. It is hard to prove cases when your client is either deceased or unaware of the incident unfolding. But, the facts here showed that there was a large tree sitting on his 5 foot high chain link fence in scene photos.  My client was 6 foot 5 inches tall so the falling tree would have hit my client before hitting the fence. We never found the alleged chainsaw wielder, but the lady’s homeowners insurance paid up.

Two Reds Don’t Make a Right:

So, two drivers are approaching a large suburban intersection.  My client appears to run a red light. A driver coming the other way makes an illegal left turn through the same red light and hits my client. My client is more injured than the other driver and needs surgery. In Pennsylvania, if you are 50% or more responsible for an incident, you cannot recover. In reality, as a plaintiff’s lawyer, I try not to take cases where liability or negligence is unclear. Nevertheless, after depositions, both defense counsel and I and the claims representative all agreed that both clients were probably somewhat at fault, but the crash would not have occurred without the driver turning left across the intersection. And, the penalty for running a red light is not a severe fracture. It’s $100 or so. So, we won.

The Wisdom of Visiting the Scene of the Accident:

I had a slip and fall case a few years ago that was won simply because me and my expert went to the scene together, got on a ladder, and tried to figure out why the client was right that there was ice on the concrete under the gutter. My expert noticed a small everyday switch on an exterior wall next to the downspout. There was a gutter located above where she fell and the gutter had a heating element wire in the gutter, which was connected to the switch. If you forget to turn on the switch on chilly days, the ice in the gutter won’t melt and water will eventually run off the roof and drip onto the concrete and freeze. We would not have figured this all out without finding the switch and finding the heating element and without going to the scene. A lot of lawyers don’t bother. They have too many cases or just don’t care or have the time to work the case up properly. The case settled largely because of our visit and the expert finding the little switch.

And, the winner in the weird case category, though not personal injury goes to……..

My first month as an Assistant District Attorney was spent arraigning people and asking for bail for people in Queens New York who were just arrested. My first month in arraignments, which has a night court proceeding involved an event at Belmont Park, which is a New York horse racing track. A groom, who cleans stalls etc., was caught standing on a plastic bucket, with his pants down and doing bad things to a female horse. Police arrested him and he was charged with some form of bestiality. Now, since this is a lawyer newsletter, my supervisor and later the judge asked, how will you prove a case, now that he is charged? You would need a vet, semen, something more than just an attempted bestiality. I don’t know what happened, but I am guessing the groom lost his job.

 

 

 

Suing The City Of Philadelphia And Sovereign Immunity

Andrew NeuwirthSue The City

Good morning and welcome to Ask Andy. This is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. I’m Andrew Neuwirth. You can reach me on the Web at Neuwirthlaw.com or by phone at 215-259-3687. So I’m talking today again about suing the city of Philadelphia. There are lots of ways to sue the city, but there is one big sort of bar or thing you need to know about, and that is that traditionally you cannot sue the government, whether it’s state or federal or county, unless they give you permission to do so. So it’s kind of an alien concept to your average person in America, but it comes down to us from old England, I think. And you needed the permission of the king to sue the king. So we have some of that come through in our law. And basically you are allowed to sue the city of Philadelphia only in certain circumstances. And even if you sue them and win, you are limited to a reward or an award of 500,000. And if you sue the state of Pennsylvania, your award is limited to 250,000. That’s just a couple of the little vagaries of the law. But, you know, basically the reason is kind of good and bad. We don’t want people constantly suing the city or the township and wasting their time. But at the same time, there are reasons why we need to sue the city, and there are times when the city should be sued. So the primary exceptions to suing the city of Philadelphia are, if you are injured or something happens as a result of streets or sidewalks.

So potholes, cracks in the sidewalks, all that stuff is is fair game. And the other thing is anything involving motor vehicles being driven by city employees or that are on city business. So what’s you know, what does that mean? What’s not included? So I’ll give you the two examples that are included is you slip and fall on a city building property because of, you know, our city street because of a pothole. You break your ankle, boom, you’ve got a case. And the other one is the city vehicles. Let’s say a big dump truck backs up into your lane of driving and causes a bad car accident. Yes, you can sue the city. And what’s not included in there? Well, what’s not included is something that we deal with a lot, which is, you know, your child goes to a city of Philadelphia school and is injured because the playground has rubber mats that are turned up in the kid trips and falls and breaks an arm. Is that, you know, are you allowed to sue the city for that? The answer is no. How about this city of Philadelphia is your school bus company and they’re driving your child to school. And, you know, the bus driver causes a car accident. Is that covered? Well, because it’s a car accident and the bus was in motion, probably covered. But if let’s say your child trips and falls on the bus while the bus is standing still, that’s probably not covered. That’s a weird wrinkle in the law.

How about this? How about you are walking in city hall and you know, there’s like a big spread of water or water leaking on the ground. Can you see the city if you fall in that water? Yeah, I’m not sure about that. There’s a there’s a long kind of weird set of cases talking about whether the defect was on the property or of the property. So if a defect traditionally is on the property, then you couldn’t sue for it. If a defect was of the property or because of the property, then you could sue for it. What does that mean? All right. So that means if there’s a crack in the sidewalk, that’s the city’s responsibility. If there’s, you know, peanut butter smeared on the sidewalk and you get stuck in trip on that, that’s not the city’s responsibility. So, you know, those are silly examples. But a lot of times what would happen in these on and of property situations is, you know, there would be a huge rainstorm and there’d be water pouring out of the city’s streets down into SEPTA, underground tracks, and people would slip and fall and get seriously injured on waiting on the tracks for septa trains to go out to the suburbs and set. I would say, well, it’s we’re protected by the immunity of the city. And that’s not a defect of the property. It’s a defect on the property. And then they’re not not liable. All right. So that’s kind of the intricacies. You just need a lawyer to analyze whether you have a case.

But, you know, the big ones we see are kids getting hurt at school, kids getting hurt by teachers, sometimes kids getting hurt by other students. You know, you don’t want to sue another student for attacking your child because the other student, you know, if they’re in a city public school, they probably don’t have a lot of money or insurance. You want to sue the city, but you can’t really sue the city for the actions of another student, for the most part, unless there was, you know, some sort of gross negligence. And, you know, gross negligence is a very high burden to pass. You know, from a lawyer’s point of view, I’ve done it in cases. It’s a very hard to do. It’s possible, but it’s a real bar unless the case value is really significant. So, you know, there are terrible stories about children who walk out in front of school buses or the school bus drivers and paying attention and the child is hit and killed by a school bus. You know, is the city responsible in that situation? Yeah, if it’s a city school bus, they will be responsible and you can sue the city. What’s the what’s the downside I’m talking about? The downside is that, you know, this child has lost their life. The family has lost their child, and the damages are capped at 500,000. You know, that case is worth several million dollars, if not more. The family could have some comfort from that and the city would get punished by the verdict.

But in fact, everything is capped at 500. So that’s you know, it’s an annoying part of it. I think one of the other law firms in the city, an inspector tried to have that law updated just to reflect changes in the value of money and the courts have rejected that as an avenue. So, look, you know, as a general rule, I sue the city once or twice a year for potholes and other roadway defects. They are, you know, a professional organization, but the lawyers are terribly overworked and have a huge, huge number of cases. And, you know, I wish the city did a better job of evaluating and settling cases earlier, but I wish that were the case for most insurance companies as well. So nothing I can do about that. The city is certainly a defendant. They’re certainly ripe to be sued. You can sue the Commonwealth as well, but they haven’t even lower cap on damages. So, you know, you don’t want to be you always want to be looking at the city and the state first. Suing the federal government is a whole different can of worms. And there’s actually a whole process you have to go through called the Federal Tort Claims Act. And it’s just another headache and pain. But that’s what, you know, you pay lawyers for is to understand this stuff. So that’s enough for Ask Andy today that’s been suing the city of Philadelphia, something I do on a fairly regular basis with success. And that’s about it. I hope all’s well. I hold people accountable.

SuperLawyers 2022 Top Rated Personal Injury Attorney

NeuwirthLawIn the News

I am thrilled and honored to be selected as top Pennsylvania Personal Injury attorney by 2022 Super Lawyers. Super Lawyers chooses only the top 5% of attorneys in any region. I am proud to be included along with many of my talented colleagues.

Top Rated King of Prussia, PA Personal Injury Attorney | Andrew Neuwirth | Super Lawyers

Andrew T. Neuwirth is a top-rated attorney practicing in the King of Prussia, Pennsylvania area. Providing legal representation in Pennsylvania for a variety of different issues, Andrew Neuwirth was selected to Super Lawyers for 2022. He is admitted to practice before the courts in Pennsylvania. After completing undergraduate studies, Andrew T.