Things That We Should Change

NeuwirthLaw Case Matters, Courts, In the News, Insurance, Special Causes

  1. The state minimum insurance coverage is $15,000. This has not changed for years and is simply unfair to 75% of my clients.
  2. Limited tort is simply a scam crafted by the insurers. Don’t have this on your auto insurance.
  3. Fetterman should wear a suit to the Senate. I have to wear a suit to Court. I got chastised recently for appearing on Zoom Court with a shirt and tie but no jacket. I was surprised but went and got my jacket….. not my hoodie. C’mon man.
  4. The government needs to do something about the ATV riders in Philadelphia. It’s simply absurd. I was driving around north Philly the other day to see a client and the noise and recklessness of these riders is comical and pathetic.

Pan Mass Challenge Completed

NeuwirthLaw holiday, In the News, Special Causes

I had a nice 200-mile ride across Massachusetts this past weekend. The weather was about 72 degrees and partly sunny, which is perfect weather for cycling. We have raised $50 Million so far as of this weekend and probably will get to $70 Million. Not a bad haul and all rider dollars go to Dana Farber. My team, Brooklyn Love, did great as usual. For six people from different backgrounds, with ages ranging from 45 to 70, we all rode the ride at right around 17mph, which is not too shabby. On our own we would have gone about 15mph, but the draft from 5,000 people around you gets another 2 mph, which ads up over the course of 200 miles.  Anyway, a lovely weekend!

DON’T CRY FOR ME GEICO/PROGRESSIVE/STATE FARM

NeuwirthLaw Auto Accidents, Case Matters, Insurance

Caricature of original Broadway cast of Evita! by Al Hirschfeld. Used momentarily.

Recently, a lot of articles in the business news have caught my eye on this tearjerker subject.  Apparently, the insurers have been getting far more automobile crash claims than they expected and have been taking underwriting losses. That means that State Farm for example lost $3.5 billion dollars in 2021 because they paid out more claim dollars than they received in premiums. So, how do they fix this problem? They increase your auto insurance rates. This also comes after they had hugely profitable years during the pandemic years when miles driven were far lower and hence crashes were fewer.

                So, you were a safe driver and your rates doubled or went up a lot. The reason is that State Farm screwed up their underwriting and needs to make their money back. A possible subtle finding within these results is that the more technology focused cars become, the harder and more expensive they are to repair. Extended repair times mean more rental car costs and more customers becoming annoyed and switching carriers and more expense as the auto body shops are no longer a guy with a wrench. If you are driving a Tesla Model Y and you waited 7 months to take ownership of the car and it has 1000 sensors and you hit a concrete post, it is no longer a question of banging out the dent. Now you need new sensors, a new sensor pad, and a whole bunch of other calibration. So, what was a $3,000 repair is now a $13,000 repair.

                The moral of the story is that insurance is a necessary evil. I have been working on a crash that occurred in my own family and I had to sit down and figure out exactly what our policy covered and did not and it took a bit to do that and I know this stuff inside and out. But, the Tesla example is a real headache for me, the insurer, and will only get worse over time. SO, your rates will keep going up for reasons having nothing to do with you.  SO, shop around and change carriers often.

 

Door to balloon time?

NeuwirthLaw Insurance, Medical Malpractice, Standard of Care

In medical malpractice cases, there are a lot of guidelines or standards of practice to sort through.
So, what is door to balloon time? In treating heart attacks, the first surgical treatment is in the catheterization lab and involves placing a balloon into your artery to expand the blockage and place a stent or metal tube in the artery to hold it open. The most recent guidelines hold that less than 120 minutes should elapse from the minute you walk in to an Emergency Department with chest pain to not only being in the operating theatre, but actually having a catheter opening up your occluded artery. Cardiologists have determined that the 120 minute mark is generally too long and the goal is to reduce that, but that number applies particularly if you have to be transferred to a hospital with a catheterization lab for stent placement.
The standard of care is the only real question that matters in med mal cases. The standard is generally not written down anywhere, except for these guideline and even then the guidelines are subject to discussion. In those areas in which guidelines exist, they are helpful for setting the table or the playing field for the lawyers involved. ACOG (the American College of Gynecology), the American Heart Association or the ACC or other similar organizations often try to standardize what they expect of their providers. It allows for some uniformity across what is a very large country geographically with a variety of hospitals and many rural or poorer cities in the mix.
So, theoretically, you should receive the same level of care wherever you are in the United States, but that is rarely true. More rural hospitals will not necessarily have a fully staffed cath lab waiting for you to come in with your heart attack so you will need to be transferred.
It is a little unusual in medical malpractice cases to see a firm number like 120 minutes but not unheard of. Jury instructions in medical malpractice cases and defense lawyers take pains to point out that every patient is different and that medicine is part science and part art or practice. So, it is very hard sometimes to pin down what exactly the standard of care is and what was done right or wrong. What I can tell you is that you will not see a lot of malpractice cases brought unless there was what appears to be clear error.

PAN MASS CHALLENGE 2023: DONATE!

NeuwirthLaw In the News

This weekend is my annual bicycle trek across Massachusetts.  192 miles of riding over two days.  Generally, weather permitting, it is a lovely ride with lots of fit and motivated people. Plus, there are fluffernutter sandwiches at every rest stop and it is generally a fun experience raising money for cancer research.

I am in my tenth year of riding the Pan Mass Challenge. It is a 192 mile ride from Sturbridge, MA to Provincetown, MA, which is the very tip of Cape Cod. It is a fun group ride with about 5,000 people. Last year we raised $60 Million for Dana Farber Cancer Institute in Boston. I think PMC is the third largest fundraising event in the country. All donations go to Dana Farber, as all costs are covered by the riders or donated services. Tito’s Vodka and Harpoon Beer are dedicated sponsors as are the Bruins and other Boston related teams. If you want to support my ride, the link is below.

Donate

THE PMC DONATES 100% OF EVERY RIDER-RAISED DOLLAR TO DANA-FARBER CANCER INSTITUTE Founded in 1980, the Pan-Mass Challenge (PMC) is an annual bike-a-thon that today raises more money for charity than any other single event in the country. © 2023 – Pan-Mass Challenge

The Bear: The Struggle

NeuwirthLaw For Lawyers, Law Practice Management

I have been watching the Bear on Hulu for a few weeks now. It is about the struggle, both personal and professional, of a chef in Chicago who is a reluctant business owner. It’s a really nicely done series with about 16 episodes. I like it because it shows the struggle inherent in small business.

Most law firm owners are small business owners like I am, running a successful operation over decades. But, the challenges depicted in the Bear resonate with me for a bunch of reasons. First, the lead characters always feel like the unexpected is upon them. That is a not infrequent occurrence in my practice. Pandemic shutdowns? I did not see that coming. Work from home? Did not see that coming. Global warming reducing slip and fall cases in winter? Did not see that coming. On the positive side for the business at least, people are driving like morons and the whole notion of texting and driving seems very very hard to get rid of.

I have my own bulwarks against future uncertainties, but the beauty of small business is that you can tweak it while the plane is in mid-air. You can make mistakes and recover or make changes to what you do or how you do it. Sometimes you have no choice. Other times you do.

The Bear also struggles with characters and personality clashes that are just part of a good TV show.  They are not a reflection of personal injury practice or running a law firm as I know it. Bad characters or bad personal interactions result in people being fired. Full stop. End of story.

The one big difference between me and the Bear is that customers are simply not a focus of the show. For me, clients or customers make the business what it is. I generally have good years financially year after year. But good financially does not necessarily mean it feels good. Demanding clients are something that I try to weed out of my case load. But, sometimes you are stuck working on a great case that is going to make you and the client a lot of money, but the client is awful. It happens. I try to learn from it and carve those clients out or set ground rules for them, but it just happens and it can make the year or two years of the case feel crappy even though it is financially a winning year.

Is every case adversarial?

NeuwirthLaw Case Matters, For Lawyers

German Soldier gives English soldier a light

Oftentimes, as a personal injury lawyer, a case comes in where negligence is clear, injuries are clear, and it is just a question of insurance and the valuation of the claim. For example, you are a pedestrian hit by a car in a crosswalk and break your hip.  Or, you are rear ended in your car and pushed into oncoming traffic and hit by a car breaking your collarbone and wrist. These are both real life cases, but also straightforward ones. In these situations, my goal is to collect the evidence as quickly as possible, get a medical record showing the fractures, and obtain a picture of what the potential insurance is. Then, hopefully, the case can settle without the delay and expense of litigation. Why is this important to the client? Well, usually health insurance bills that reduce a client’s settlement will increase over time so it is important to cut these off. Plus, litigation costs money. The average case expenses will be $5,000 if the case goes through discovery. Not every case can benefit from the rapid settlement situations described above. Plus, in cases like these where everyone knows what happened and what the injury was, there is really nothing to fight about except for how much the insurer will pay for the case.

In these very clear situations, the only discussion is about how much insurance there is and how much you can get of that coverage. The nice and interesting thing about these cases is that there is not a lot of adversarial conduct between the lawyers and claim reps. If the case has to go into suit because there is a lot of coverage, then both lawyers will take fairly gentle depositions of the other party. There is no reason to piss off the other lawyer and as a plaintiff, I want them on my side to tell the insurer that the case needs to settle. I try to provide defense counsel with every shred of evidence, bills, lost wages, to help them get the case to a good settlement number. I will even make sure that they have their doctor examine my client and generally try to pad or fill out their file so that there are no questions to be asked and the lawyer and the insurer can all document why they need to pay out $250,000 on this case in case inquiries are made down the road. This way, everyone on the defense side is covered or justified in their settlement decisions.

Do we ever pursue people over their insurance coverage? I have not yet seen it done after 20 years of practice.  We can threaten it, but most people simple don’t have a lot of loose cash lying around. Further, where someone is married or holds assets with another person and that other person is not liable or at fault, no court is going to take their assets when there is insurance coverage for the incident.

FTCA UPDATE: Andrew Neuwirth at the Supreme Court? I hope not

NeuwirthLaw Best of, Case Matters, Courts, For Lawyers

US Supreme Court, Washington DC

I think that among the long list of things that I do not want to do as a lawyer is be involved in a US Supreme Court case. While many lawyers would relish the opportunity to argue there, I think that it is not a good place for personal injury cases and I could see wasting a tremendous amount of time writing briefs, researching other circuits law etc. Plus, while I like to write in general, I really don’t like legal writing. Overall, I don’t see a lot of upside.

I wrote some time ago about my case involving a slip and fall at a TSA checkpoint at PHL and how the Federal Tort Claims Act and the Discretionary Function Exception (DFE) figured into it. Yesterday, there was an article in the Legal Intelligencer, our legal paper, describing the case of Xiaoxing Xi v. United States. It just so happens that the headline was that the FTCA and the Discretionary Function Exception are at the center of that lawsuit and the Third Circuit Court of Appeals heard the case and implored the US Supreme Court to address the FTCA and the DFE. Xi was a Temple Professor, who was arrested and charged as a spy for China. He filed suit for wrongful arrest and alleged a Constitutional violation. The Government responded that it was immune under the DFE. The Government won its claim at Summary Judgment and Xi appealed. The Third Circuit reversed the District Court and said that the Government was not immune and that the DFE did not apply. My case is worlds away from the Xi case but they both involve the DFA. How would I end up in the Supreme Court? Well, when there is a clear split in how different Circuits around the USA treat the FTCA, the Supreme Court will often step in to set a clear line about what the immunity is and how to apply it. Often, multiple similar cases will be lumped together to address all of the disparate issues at once.

In my case, the Government’s Motion for Summary Judgment is still pending. Regardless of what happens, the prospect of a US Supreme Court hearing an appeal on the very issue before the Court in my case is interesting. I think that whichever side wins the Motion, there will likely be an appeal to the Third Circuit and then the case will be teed up for a Writ to the US Supreme Court. I will keep you posted.

MEDICAL MALPRACTICE CASES AND PLASTIC SURGERY

NeuwirthLaw Best of, Case Matters, For Lawyers, Medical Malpractice

From the movie Brazil, directed by Terry Gilliam

I think it is probably a good idea to avoid having plastic surgery with a surgeon whose spouse is on the Real Housewives series. Several of these docs are getting pummeled with malpractice lawsuit filings. While the filing of your typical case has no bearing on whether the case will ultimately prevail, I think the opposite is true in medical malpractice. No lawyer would file a med mal case unless there was clear malpractice and a clear path to success. This is because you need a Certificate of Merit in PA and similar letters in other states that essentially reveals that your case has merit in the eyes of a doctor with the same specialty. This sort of substantial proof of merit is not required in many lawsuits. Further, these cases demand a really close evaluation of costs and benefits. We do not take cases that do not have six figure or seven figure potential. A doctor doing something wrong or below the standard of care is simply not enough to make a case.  Even the raft of allegations in the lawsuits against the real housewife spouses who are doctors are often not about the actual performance technique.

Why is that? Well, in reviewing a bunch of medical malpractice cases against Dr. Lenny Hochstein and others in that universe, most of the claims involve a failure to respond to post-surgical complications. What this reveals is what most malpractice lawyers recognize. In a cosmetic surgery case, it is not wise to fight over how the procedure turned out or how your nose looked after the procedure. There is no guarantee of results in these cases and much of the result may be surgically successful, but unappealing to the patient. Rather, cosmetic surgery patients have complications from surgery like all other patients and those must be attended to. So, patients who develop fevers, infection, wound healing problems etc. need urgent medical attention. If you as a doctor fail to have systems set up to provide that attention and too much time passes, your patient may decompensate and things go downhill quickly. So, you could see that if you are a real housewife spouse and a surgeon and a patient has surgical complications, then it would not be too hard to argue that perhaps you were busy with your wife’s spending, shooting scenes, or doing other non-doctoring type things and hence ignored the patient.  That is more of a case than your typical plastic surgery case.

Finally, there is always an element of you asked for it in these elective surgery cases. It is strictly off-limits in court, but you must expect jurors to think that none of this would have happened if you had just been happy with how you were etc. It is unavoidable and frankly an element that has to be investigated and considered in these plastics cases.

 

Would a Trump Conviction Matter to a Trial Lawyer?

NeuwirthLaw Best of, Case Matters, For Lawyers, In the News

Originally published April 4, 2023

Apart from the angry politics on both sides of Trump being indicted and going to trial at some point in the future, there is an interesting issue to appears to my lawyer brain.  There has been a lot of bellyaching about why would you bring this case first of all the cases against him? The general sense seems to be that this is the weakest of the cases against Trump and why not start with a stronger one.

One interesting issue is how prior convictions are used in actual trials in Court.  Let’s start with assumption #1, which is that Trump will not ever plead guilty to anything.  I think that is a given. A guilty plea and a jury verdict have the exact same effect so that does not matter too much assuming he is not aquitted.  They both act as convictions. A guilty plea will usually get you a lighter sentence than a jury verdict, at least in Federal Court.

If Trump is convicted of a misdemeanor or felony before another case goes to trial, the fact of the conviction for a crime involving dishonesty could be used in future trials in Georgia or in the federal system to show that he is someone who has already been convicted and to show that he is someone who is willing to put his interests over those of society. Now, that may come as a surprise to nobody on either side. Nevertheless, the evidence of a conviction has the added effect of telling a jury that they too can convict him as a jury elsewhere already did that job once. It makes it a little easier to convict.

There will be a lot of argument over the admissibility in evidence of these convictions because if they form a pattern of behavior they become more likely to be admitted. If a defendant’s pattern of behavior suggests that he or she is more likely to have committed the crime on trial, it is powerful evidence. This rule of evidence, 404(b) in the federal system, is most commonly used in criminal cases, where the prosecutor can show that Jon Bad Guy always leaves a perfumed handkerchief at the scene, or only uses 22 caliber bullets etc. Here, if Trump was seeking to win the election in 2016 and was making efforts to do so by illegally paying off porn stars, how far would it be to say that he would break laws by coercing officials in Georgia to do something illegal in the next election? Not much of a stretch.

The other interesting aspect is that assuming Trump is convicted, his conviction should not result in jail time in New York state.  Just no way.  However, in the federal system, defendants with prior convictions get higher sentences and fines than first time offenders. So, there is this added wrinkle where Trump may not care about this case much, but may be very concerned about the timing of any conviction.  So, as a lawyer, what do you do? I would guess that both convictions would have to be appealed to the US Supreme Court, which will take about 2 years or so.  That would avoid all of the above scenarios as a conviction is not final until all appeals are decided.  That is my guess.  As I have said previously, the law grinds slowly but exceedingly fine.  I am guessing we will see some convictions and fines, but I doubt there will be jail time at any point.