Recent Blog Posts

WHY AREN'T YOU USING YOUR HEALTH INSURANCE? REALLY??

Chad Hemmat — Mon, 20 Feb 2012 22:20:00 GMT

A) THE MISCONCEPTION:

There is a misconception out there that you cannot use your health insurance to pay for your medical expenses if you are injured in a car crash, slip and fall, or in some other way where you are going after an at-fault party or insurance company for compensation. This is nonsense!!!!

This misconception probably stems from an old remnant left over from a time in Colorado law, which ended back in 2003, where no-fault auto insurance benefits were primarily responsible for paying for car accident related medical benefits. Before 2003, if a person was injured in a car accident and had health insurance, that health insurance would not pay any medical expenses until the no-fault auto insurance benefits were exhausted. Because no-fault insurance provided a great deal of coverage for those injured in car accidents, most people did not need to use their health insurance to pay for related medical expenses. But, when the law changed nine-years ago to eliminate no-fault insurance benefits, health insurance went from a secondary to a primary source for coverage of accident related medical expenses. Regardless, many of our clients with health insurance do not initially use their health insurance to pay for their medical expenses before they hire us to represent them. They simply do not realize the availability of using their health insurance EVEN in auto accidents or other injury cases where someone else is at-fault.

B) WHY HEALTH INSURANCE IS YOUR FRIEND AFTER YOUR CRASH:

If you are lucky enough to have health insurance at the time of your personal injury, you should absolutely submit ALL of your medical care and therapy charges to your health insurance provider.

Health insurance is the source that should step up and pay your medical bills after you are injured in an accident. Contrary to what you might have been told by your friends, family, or even your health insurance provider when you called to seek care (yes, we know that happens sometimes), your health insurance is responsible for covering your medical care.

Since the law changed in 2003, once a settlement is reached with the at-fault party's insurance, the subject then turns to what, if anything, must be paid back from the settlement to the health insurance provider that covered the medical expenses. Your health insurance provider, a hospital who filed a lien, your doctor/chiropractor who agreed to wait to get paid from your settlement, or a private finance company that fronted your medical care expenses all expect to get a piece of your "settlement pie." When health insurance pays the medical bills, their efforts to get paid back (successful or not) is called subrogation. When a finance company pays the medical bills, their collections efforts are called their "claimed right of interest."

When you are injured and do not have health insurance, it is often necessary to arrange payment of medical bills with a medical finance company or a doctor that will wait for your to settle your case before he or she gets paid. But, when you have health insurance, there is really never a reason not to use your health insurance, and never a reason to use private financing in lieu of health insurance.

C) THE TWO-FOLD REASON TO ALWAYS USE YOUR HEALTH INSURANCE:

The two most important reasons to ALWAYS run your injury related medical care through your health insurance are (1) re-pricing and (2) the great likelihood that you might not have to pay back as much, if anything, to your health insurance upon the settlement of your case.

Hospital liens, doctors that treat you on a lien, and finance companies generally charge you more for the privilege of waiting to get paid from settlement proceeds. They charge anywhere from the very highest end of the reasonable value of medical services all the way up to a level many times over the reasonable value for the services provided. Unfortunately, when our clients are injured and do not have health insurance, financing sources such as medical finance companies are a necessary evil. Nonetheless, in fairness to these financing sources, they take on an extraordinary risk. These sources agree to pay for a doctor to provide you with care NOW with the expectation that they will get paid IF/OR WHEN you get your case settled. But, not all injury cases settle. Some cases go to trial, and sometimes, injured people lose at trial. Accordingly, like a bank, medical finance companies stay in business by making sure that when cases do resolve favorably, they handsomely collect to offset the bad risk cases that don't resolve favorably. Consequently, you should only use medical finance companies to cover your medical expenses as a last resort. Certainly, health insurance, along with your Med-Pay coverage from your auto insurance policy should cover your medical expenses for your personal injury, not side deals with a chiropractor or medical financing company.

1) Health Insurance Re-Pricing:

Medical financing companies charge a premium, much higher than the usual amount charged for the same medical services, for the burden of waiting to get paid from your settlement. In sharp contrast, health insurance providers drastically cut down the prices that hospitals and doctors charge for medical care. Health insurance companies have agreements with medical doctors and hospitals that allow them to "re-price" the invoiced charges that doctors and hospitals send them. Hence, when health insurance companies seek subrogation for the medical care they paid for, they do not expect you to pay the full amount that they were charged by the hospitals and doctors. Instead, they expect you to pay back the low "re-priced" charges that they actually paid for your care. As you can see, a person paying back his health insurance for care is going to pay much less than a person who used a medical financing company to cover her medical expenses (re-pricing vs. premium pricing).

2) Favorable Laws Make It Harder Now for Insurance Companies to Take Money From Your Settlement:

The second overwhelming advantage for using your health insurance to pay for your personal injury care comes from the Make Whole Statute that the Colorado Legislature adopted two years ago. In all cases, where health insurance or Med-Pay are seeking to be paid back from your settlement for the proceeds expended to pay your medical bills, they now have to follow very strict procedures, and the overall evaluation is premised on the injured party having first-right to the settlement money. In case you were wondering, these laws don't extend the same kind of scrutiny to charges by medical finance companies.

CONCLUSION

At ANDERSON, HEMMAT & LEVINE, we understand that for our clients, it is not what you settle for that matters, but what you actually get to keep at the end of the day that matters the most. If you are injured in a car accident or slip and fall and you have health insurance, you should ALWAYS use your health insurance to cover the related medical expenses. Using your health insurance significantly lowers the amount that you have to pay back to your health benefit providers after you reach a settlement. Without a doubt, it is always a better deal for our clients when they use their available health insurance instead of using other forms of financing that are available. Call us today if you have been injured and have questions about how to handle the resulting medical bills.

MIGHT A LITTLE LYING BE BETTER?

Chad Hemmat — Sat, 11 Feb 2012 02:38:00 GMT

With an article like this, I'm going to get straight to the point. So, here goes. Contrary to what most defense lawyers, misguided insurance adjusters, and ultra right-wing radio show hosts believe, lawyers who represent injured car crash victims DON'T want their clients to "stay injured" until a settlement or jury verdict is reached. Before reading this article, you were probably SO CERTAIN that I tell my clients who profess good health after an accident to "stay hurt" and to "not jump the gun" by telling the insurance company lawyer that their injuries have healed. Nope, in these types of situations, I advise my clients to tell the truth. If a client tells me that they are healthy and feel great, I tell them to embrace the truth.

WHY HONESTY WORKS:

In an injury case brought against an insurance company, the entire process boils down to how believable you present as a plaintiff. In other words, does your crash, your care, and your recovery make sense? Do all of those facts fit together in a logical and consistent way? Overall, if your case makes sense, no insurance company or jury will have a problem compensating you for your injuries. If the facts of your case don't make any sense, the insurance company or jury will be much more reluctant to compensate you.

IT MUST MAKE SENSE:

Generally, cases that make sense to insurance adjusters will settle earlier and for more money than cases that do not make sense or that have inconsistencies. Does that mean that you need to pander to your insurance adjuster? The answer is no. Some people, regardless of your straight-shooter veneer, are going to be haters and disbelievers. Nonetheless, the good news is that insurance companies do not have the final word when it comes to your case. When the insurance companies aren't "getting it," we sue and take your case to the final authority, the jury. While many lawsuits that we file settle before we make that final walk into the courtroom, the cases that are won at trial are ALWAYS won because the facts of the winning case made sense to the jury.

WHAT DOESN'T MAKE SENSE:

Consider a car crash that does not cause much damage to either car involved. The police at the scene of the crash report that no one was injured. The car crash victim allows weeks to go by without reporting her injuries to any doctor. Then the injured party hires a lawyer to represent her. That person is then sent to a doctor by her lawyer. That same doctor pushes that person into expensive spinal injections or perhaps a pricey surgery. The person reports only a little bit of improvement from her injuries after the first round of care. Then that person goes back to that same doctor for more expensive injections or surgeries. The person finally stops treating. But when that patient is asked how she feels, she insists that she is still in severe and debilitating pain.

Okay, now I want you to put on your "sit in judgment" hat for a moment. The insurance adjuster, the defense lawyer, the mediator, the judge, and ultimately, the jury puts on their "sit in judgment" hat as they process the sequence of events that comprise your injury claim. Now that you have your hat on, is anything in the case that I just explained not making sense? Let me change the question: does anything from that case make any sense to you?

*Why is there so little damage to the car and how could someone get hurt in such a minor crash?

*Why did the person not report injury at the scene?

*Why do weeks go by with no report of injury to an urgent care or emergency room?

*Why does a lawyer get hired BEFORE the patient sees any doctors?

*Why does the doctor jump right into very expensive and aggressive treatment as opposed to trying vicodin and a little physical therapy first?

*Why does the person go back for more expensive and aggressive procedures even though those procedures didn't work in the first place?

*Why does the person stop care BUT still claim to be in such outrageous pain?

Think about that last statement for a minute. The person is probably going to say that in the beginning, she did not get to see a doctor right away because she did not think that she was injured. But now, she is certain that she is still injured, and yet, is not seeing anyone to treat for her injuries.

Are you buying any of this? Of course not but guess what? Insurance adjusters, defense lawyers, and juries see these kinds of cases all the time. Not surprisingly, juries award nothing to folks who try to sell this type of story. Also, because insurance companies only pay based on what they think a jury will award, insurance companies pay very little in pre-trial settlements for this kind of case.

WHAT DOES MAKE SENSE:

When dealing with insurance adjusters, mediators, judges and juries, what makes sense to them would be the same things you or even your 5 year old would expect to see: bigger crashes, ambulance and paramedics, prompt emergency room follow up, a quick follow up with a family doctor, 12 weeks of conservative physical therapy, maybe a follow up or two with a specialist, and most importantly, progressive improvement in the patient's condition. Ultimately, it would make sense that there is an end date in care that coincides with a patient's symptoms being minimal or at least controllable.

Looking at the above, the natural expectation would be that a patient will at some point report that she feels a lot better than she did after the accident. In fact, after all of the above, wouldn't it seem odd if she didn't say she felt better? In fact, after the above care, if she says, "I devoted a year to care, follow up and procedures, and now I'm exactly the same or worse than when I started," that statement would simply make no sense. For a person sitting in judgment who is trying to make sense of everything, having a plaintiff report that no treatment has helped would certainly undermine the effectiveness of the care that the patient received. It would certainly call into question the competence of the physicians involved and would ultimately undercut the credibility of those physicians if they are called to testify at trial. The jury might ask why they should listen to Dr. Quack here? He treated the plaintiff for a year and according to her, she feels worse than she did before he started treating her. It just wouldn't make any sense. Remember, winning a case at trial is an exercise in making your case make sense.

THE TRUTH SHALL SET YOU FREE:

If you were involved in a minor car crash and you did not follow up with your doctor because you couldn't imagine that your stiff neck was caused by the small car crash, by all means, say that! That story actually makes sense. Trying to create some other story will make your story hard to believe and your case harder to win.

Furthermore, you should think logically about how others will perceive your treatment decisions. For example, seeing your lawyer's favorite doctor is probably not a good choice if your goal is to retain your straight-shooter status with those sitting in judgment. In fact, it is much better for your case to go to a doctor that is barely on speaking terms with your lawyer. More importantly, the biggest goal in your case should be to get better so that you can enjoy life to the fullest.

Lastly, don't "make mountains out of mole hills." If you finished your care because you recovered from your injuries and feel great, that's a good fact. This legitimizes you, your treatment choices, your treatment provider's level of competence, and makes you look reasonable. Remember, this is all about making your case make sense.

CONCLUSION:

For more than 20 years, I have represented all sorts of injured folks. Every case is different just like every person is different. But in all of my experience, I have always relied on one overriding truth - straight shooters have a much better experience in settling their cases and winning trials than people who look like they are trying to cheat the system. In this, as in many other areas, honesty is the best policy.

WHY CAPS ON DAMAGES RARELY, IF EVER, REALLY LIMIT INJURY RECOVERY

Chad Hemmat — Thu, 02 Feb 2012 02:38:00 GMT

Hiring a Colorado trial attorney who can recite the caps on non-economic damages by memory is not nearly as impressive as hiring an attorney who is aware of how to navigate around those caps. If a lawyer has a sound understanding of Colorado caps on damages, that same lawyer understands that an injury victim is often not limited by those caps. Does what I am saying sound a little different than the last lawyer you talked to? If yes, that's not surprising. Simply stated, the caps that so many lawyers think limit their clients' compensation do not actually apply. Basically, if your attorney thinks like that, he or she has drunk the insurance industry Kool-Aid and are charging you a fee to get you less money, not more. Accordingly, be sure to thank them on your way out the door, with your file in your hand, on your way to hire your next attorney. It simply takes a resourceful and experienced attorney to know how to present damages from a personal injury case in a way that will avoid the limits imposed by caps.

1) WHAT ARE THE CAPS?

Currently, non-economic damages in Colorado are capped at $468,010. Strange number, right? The statute originally limited damages to $250,000. However, the Colorado Legislature later modified that statute to include an interest rate kicker that is predetermined by the Colorado Secretary of State, which gets adjusted from time to time. As stated earlier, the cap is currently at $468,010 and this cap has not been adjusted since February 2008. For those of you who are unfamiliar with non-economic damages, these damages include pain, suffering, and emotional distress. The good news is that most damages fit into other categories of damages that are NOT capped. For instance, hospital bills, wage loss, and future medical needs all fall under the category of economic damages, which in most cases, are not capped. Also, damages for permanent physical impairment or disfigurement are not usually capped either. In reality, much of what may at first appear to be non-economic damages can be presented to a jury as another type of damage that is not capped.

2) NAVIGATING AROUND CAPS IS OUR JOB:

To successfully navigate around caps in Colorado and to ensure that clients get all the compensation that they are entitled to, the devil is truly in the details. When a client's damages are presented to the court, the key to navigating around caps is to understand the subtle nuance between an injury victim's claim of pain, without any collateral consequences, versus pain that results in permanent physical impairment. If a lawyer does not appreciate this subtle distinction, the value of a client's case can plummet.

Case 1: A 29 year old municipal employee sustains a neck strain in rear-end car crash. He misses no time from work and sees a chiropractor a total of 4 times. One month after the accident, he is released back to full duty with no restrictions and never feels any neck pain again.

Case 2: A 29 year old postal worker sustains testicular trauma in a motorcycle crash. He undergoes two years of treatment including 3 testicle surgeries. Eventually doctors release this patient to return to work. This patient continues to suffer frequent pain for the rest of his life.

Do these cases look like they should have the same value?

The attorney who tells you that your damages are capped at $468,010 will also tell you that in the eyes of the law, both of these cases are subject to this low non-economic cap. But that lawyer is not seeing the whole picture.

It is the job of your trial attorney to draw out the distinctions between Case 2 from Case 1 and argue that the ongoing "pain and suffering" suffered by the postal worker in Case 2 is more properly presented as permanent physical impairment damages, which is uncapped. The bottom line is that what may, at first blush, look like "pain and suffering" may actually be permanent physical impairment. The good news is that once you know what you are looking for in drawing that distinction, the rest is child's play.

3) FEW VICTIMS SHOULD BE LIMITED BY A CAP:

Simply stated, you have probably never met anyone who was meaningfully injured who would be limited to the non-economic damages cap. Again, I realize that I may be the first attorney who has told you this. Anyone who does not fully recover from their injury and still suffers pain after their active treatment ends (which is nearly everyone) limits themselves, as a personal choice, from doing things that cause them enhanced pain. Lingering pain causes men to refrain from yard work, gardening, woodworking, general house maintenance, bowling, softball, and other physical activities. Women suffering from pain might forego house work, elaborate cooking, long distance driving, and playing with their children. How can an attorney look at these types of physical limitations and not view them as permanent physical impairments? The answer is that if they truly understand how the caps work, they can't. But, if they do, they are misguided, inexperienced, or are working for the other side.

In fact, as long as your claims of pain and suffering are framed and presented correctly to the court, it is nearly impossible to argue that they are not permanent physical impairments that are not limited by Colorado caps on damages. A 1994 case from the Colorado Court of Appeals, Lawson v. Safeway, Inc., not only supports my prior statement, but also states that permanent injuries can be established at trial without expert witness testimony. Simply stated, the Colorado Court of Appeals recognized that a jury may infer that an injury is permanent if the injury has persisted for a number of years and that the pain will continue into the future. Furthermore, the American Medical Association Guide to the Evaluation of Physical Impairment defines permanent physical impairment as an anatomical or functional abnormality after maximum rehabilitation has been achieved. By putting these two concepts together, an attorney can successfully argue that if a client's pain results in limitation of activity, as it nearly always does, it should be classified as a permanent physical impairment. Consequently, the jury would be free to award whatever it wants for that loss and their award would not be limited by any caps on non-economic damages.

CONCLUSION:

If you are injured and seeking compensation, the value of your case can plummet significantly if you hire an attorney who does not understand how to properly navigate around the caps on damages in Colorado. At ANDERSON, HEMMAT & LEVINE, we understand how to properly navigate around the caps on damages to ensure that our clients are fully compensated for their injuries. Accordingly, if you have been injured and have questions about caps, please call and speak to one of our attorneys today.

WAITING ON A JURY VERDICT ... THIS ONE'S FOR MIKE

Chad Hemmat — Fri, 20 Jan 2012 15:43:00 GMT

This week, we tried a medical malpractice case in Denver that finished yesterday. Today, our Denver jury begins deliberation on a case that we expect to win.

Sadly, on the eve of this major trial, my close friend, mentor, and frequent trial co-counsel, Mike Hodges, suddenly and unexpectedly passed away. When I learned of Mike's passing, I was out of state preparing for this malpractice trial. In fact, I even missed Mike's well-attended memorial. I know that Mike would have been the first person to tell me to take care of my client's pre-trial matters, but, I still feel terrible for missing my chance to say good bye to my friend. So perhaps, this message is my own way of doing that.

In life, you have friends, and then you have Friends. Friends are the folks you truly trust who have your back. If you have one or two these amazing "I'm here for anything you need" Friends in life, you should consider yourself blessed. Mike was my Friend. Moreover, with a decorated 40 year legal career, Mike was a mentor to me and my generation of trial lawyers. Mike frequently dropped everything to help me whenever I had a legal question, needed help with trial strategy, or just wanted to chat. And, when Mike finally gave in and bought himself a smart phone, the poor man fielded my questions day and night.

On Christmas morning of last year, as he was recovering from back surgery, Mike emailed me to address something I needed help with. In our email exchange that day, Mike did not even mention that he was still recovering from back surgery that he had undergone a few days earlier. Truly, Mike put everyone else's needs before his own. This might sound like something people always say about the recently departed, but in Mike's case, it is gospel.

A few years ago, Mike came to me and asked if I would co-counsel his trials with him. I never divulged this to anyone because Mike insisted that I keep it in confidence. Yes, a legend like Mike Hodges picked me to do trials with him. I felt privileged and honored by this request because Mike once served as the President of the Colorado Trial Lawyers Association. Mike told me in the strictest of confidence that he was having heart issues and that his doctor was asking him to ease off trial work. I was proud to work with him. After all, he knew all the trial lawyers in Colorado on a first name basis, and of all those trial lawyers, he selected me.

His clients were great and we spent the last several years, even as recently as last April, trying meaningful cases together.

From Mike, I learned just how dignified a trial lawyer can be. Mike was capable of street fighting with the best of them. Mike could be tough, yet at the same time, he was always a gentleman. Even when he was suffering from health issues, Mike remained dignified and worked through the pain to help his clients. When it was time for court, a deposition, or client meetings, Mike was always focused, professional, and skilled. Clients felt comfortable with Mike because no one treated his clients with more respect and with more caring regard than Mike.

As I told you earlier, I learned of Mike's death as I was preparing for a rapidly approaching trial. Despite my deep, deep feelings of grief over the loss of my friend and mentor, I pushed forward and dilligently continued my trial preparation because that is what Mike would have told me to do. Mike would have told me, "You have a job to do."

The trial started on January 17, 2012, and it was a medical malpractice case that involved an unnecessary surgery, a bad post-surgical result, and a doctor who manufactured reports after the fact to cover his errors. The doctor even purged x-rays to avoid the truth from coming out.

This particular doctor had his license taken away from him in Texas, but, lucky for Colorado citizens, our Medical Board saw no problem in letting him set up shop here. Mike would have loved this case.

The trial went well, our client presented exceptionally well, and the doctor couldn't have been any worse. During trial, we discovered other misdeeds and cover ups by the doctor and got all the evidence in front of a well-educated jury of Denver citizens. At one point, the doctor confessed that he regularly includes conversations that he did not actually have with his patients in their medical records because of "legal considerations." Yes, he actually admitted in open court that if you read a record from him that says "I discussed with the patient ...," it is possible that he never discussed anything of the sort with that patient and made up the conversation for the records to protect himself from legal liability.

So, as we are waiting for the verdict from this trial, I think back to numerous recent trials where my friend and mentor waited out the results with me.

The thing Mike would say to me today, as he had so often in the past, would be something like, "The important thing isn't what the jury awards, it is how you presented your client's case. If you left it all in the courtroom, you should hold your head up high." I will hold my head up high.

Now it's the jury's turn to do their job as the "conscience of the community." I know Mike is watching and waiting out the result with me and I know he would say, "You left it all in the court." I know somewhere, Mike is pleased.

Mike, this one is dedicated to you. You fought the good fight, you finished the course, and you kept the faith. Good bye, and rest in peace my friend.

3 FACTS ABOUT MEDICAL MALPRACTICE CLAIMS WE BET YOU DIDN'T KNOW

Chad Hemmat — Wed, 04 Jan 2012 16:56:00 GMT

From my 20 years of experience as a trial attorney, I have learned that pursuing a medical malpractice against a healthcare provider is always challenging. Bringing a malpractice claim in Colorado is especially challenging compared to other jurisdictions because of the strict statutory rules and requirements associated with prosecuting such a claim. Simply having a doctor who causes an injury by acting negligently is only the starting point of a malpractice claim. If you have a malpractice claim, it is essential to hire an attorney who is well-versed in the rule-driven pitfalls associated with this sort of claim because otherwise, your case can quickly be swallowed and decimated.

To provide you with a better understanding of medical malpractice claims, this article will discuss 3 facts about Colorado medical malpractice claims that we bet you didn't know.

1) YOU NEED A DOCTOR AS MUCH AS A LAWYER (and probably more) TO START A CLAIM

Before you or your lawyer files a lawsuit against a negligent doctor, C.R.S. § 13-20-601 and § 13-20-602 require you to you find a similarly qualified doctor to review your case and determine that the conduct of the treating doctor was a breach of the standard of care. The reviewing doctor must consider the facts and records associated with your case and find that the treating doctor's conduct was a bonafide deviation from the accepted standard of care and that deviation CAUSED your injuries. THEN AND ONLY THEN can a malpractice claim be brought against a doctor or healthcare provider. In fact, if you don't have a doctor willing to give such an opinion, your case will likely be dismissed within 60 days of serving your lawsuit on the defendant doctor or healthcare provider.

Often, when I first speak with potential medical malpractice clients, I will first give them an opportunity to explain why they think their doctor was negligent and to describe the injuries that their doctor's negligence caused. Afterwards, I tell them, "Well that sounds pretty bad, but what does your new doctor think about what your last doctor did to you?" I ask this question because I am trying to determine how difficult it is going to be to get a doctor to determine that the treating doctor's conduct was negligent and fell below the standard of care. Because of the strict statutory requirements in Colorado, locating a doctor willing to stick her neck out and support the bringing of a medical malpractice claim against another doctor is the first requirement that must be fulfilled before we launch our attack and start throwing grenades. Frankly, most potential medical malpractice claims that we encounter get stalled at this phase. Unfortunately, if we cannot get a doctor that will support the bringing of a medical malpractice claim against your treating doctor, your claim is a non-starter. Therefore, if you believe that you a potential medical malpractice claim against a doctor, you should call a lawyer AND talk to your current doctor because you will need a doctor as much as a lawyer to start your claim.

2) UNLESS YOU LIKE PAYING HEALTH INSURANCE WITH YOUR MALPRACTICE AWARD, YOU NEED TO SEND THEM A SPECIAL ADVANCED NOTICE

Once your medical malpractice claim gains the support of a doctor, it is now time to file your claim and go to battle. After you eventually win your claim and receive your settlement or award money, it is now time to fight the next battle. The next battle in a medical malpractice claim is to determine how much money, if any, does your health insurance get paid back for the added care that you underwent because of the negligent doctor. Once we get to this point, my clients always believe and insist that the insurance company should get nothing. However, to prevent the insurance company from taking any money from your settlement or award, your lawyer must submit a special notice to the health insurance company pursuant to C.R.S. § 13-64-402 sixty (60) days after filing your lawsuit. If the health insurance company fails to properly respond to this notice within ninety (90) days, then you will get all of your settlement and not have to pay the insurance company anything. If your lawyer is not familiar with this requirement and does not file this special notice, the insurance company might collect most or perhaps all of the monetary recovery from your medical malpractice claim.

3) STATE CAPS ON DAMAGES LIMITS RECOVERY REGARDLESS OF HOW HURT YOU ARE

A lawyer called me last week to talk about a case that she was bringing against a doctor. We talked for a few minutes and she told me how scarred and injured her client was because of the negligence of this particular doctor. Towards the end of the conversation, this lawyer asked me how much I thought her claim was worth. She was shocked when I told her $300,000 and unfortunately, not a penny more. I didn't come up with this number to be stingy or pessimistic. To the contrary, pursuant to C.R.S. § 13-64-302, non-economic losses including pain, suffering, and even permanent physical impairment arising from a medical malpractice claim are capped in Colorado at $300,000. This means that even if a jury awards you millions of dollars against a doctor, the judge will simply reduce the verdict to $300,000. Also, medical malpractice claims that result in exorbitant wage loss or future medical needs are capped at one million dollars pursuant to C.R.S. § 13-64-302. That cap can only be exceeded under the rarest of circumstances. For example, a claim involving a birth injury where the medical needs for the child eclipses one million dollars annually. Under such extreme circumstances, even Colorado law relents. However, for nearly all Colorado medical malpractice claims, regardless of how severe your injuries are, your relevant and unavoidable caps on damages are $300,000 for non-economic losses and an overall total cap on damages of one million dollars.

CONCLUSION:

Bringing a malpractice claim in Colorado is challenging compared to other jurisdictions because of the strict statutory rules and requirements associated with prosecuting such a claim. If you have been injured as a result of a doctor's negligent care and are seeking to bring a medical malpractice claim against that doctor, it is essential for you to hire an attorney who is familiar with the statutory requirements associated with bringing such a claim in Colorado. Otherwise, your claim, and any hopes of recovery, will be quickly swallowed and decimated. At ANDERSON, HEMMAT & LEVINE, we are well-versed in the rule-driven pitfalls associated with medical malpractice claims in Colorado and are ready to help you navigate through this legal maze so that you can be compensated for any injuries that you have suffered as a result of a doctor's negligence. Accordingly, if you have been injured due to a doctor's negligence, please call and speak with one of attorneys today.

TEXTING WHILE DRIVING: at Pandemic levels 2011 NHTSA study shows ... yet STILL no government action

Chad Hemmat — Tue, 20 Dec 2011 05:11:00 GMT

If 5 to 10% of the US population suffered from an illness that had a high likelihood of being fatal AND was highly contagious, the press would label it a "pandemic." Not only that, the government may even close our nation's borders, appoint Presidential Blue Ribbon Panels, and approve urgent appropriations to the Center for Disease Control that would make the financial bailout of 2008 look like a local toy drive. And isn't that what you would expect of your government? Because that's what we do in this country when we face life threatening crises, right? We address the problem. It is the American way.

So, if crises are always addressed, how did a study come out just this month, December 2011, from the National Highway Traffic Safety Administration that announced what clearly amounts to a pandemic, and yet CNN barely covered it. Republicans didn't blame the President for inaction, and no Blue Ribbon Panels were appointed. Why is this pandemic being ignored?

What is this pandemic? The National Highway Traffic Safety Administration's latest study confirms what every driver on the roads already knows. At a minimum, 5% of drivers regularly engage their handheld cell phones while driving, and at least 1% are visibly texting while driving. Similar studies show that in the last 2 years there were no less than 77,000 traffic fatalities with a significant number of those due to distracted driving. While there are many reasons for distracted driving, most studies have pointed to the use of handheld devices as the supreme culprit.

If gambling, alcohol, and even Charlie Sheen enjoying the company of "professional women" can be considered a disease, why isn't texting while driving? Why isn't our government more concerned about the sheer body count? This year, we lost more lives in traffic fatalities in three months than we did in ten years of war in Iraq and Afghanistan combined. Why is this not a public health problem that requires government intervention? How is this not more important than many things Congress tries to regulate?

Peoples' good intentions aren't making the problem go away. In fact, like any other untreated pandemic, the problem is getting much worse every year. The cell phone and car manufacturers have had plenty of time to address this problem on their own, and yet haven't done a thing to tackle this crisis. Frankly, why should they? Who wants to be the first to market a product that won't work if you decide to do something dangerous or stupid with it? Clearly, there needs to be a solution and it needs to happen now. Too many lives have been wasted already.

THE SOLUTION:

Different than drinking and driving or chronic diseases like AIDS, there are a couple of relatively simple solutions to this crisis. Vehicle manufacturers, in cooperation with the cell phone industry, need to create a technological solution.

The car and cell phone industry currently have the technological capabilities to do it. However, until governments require car and cell phone manufacturers to apply this technology, these high profit industries won't police themselves.

Most people feel that they can safely use their handheld device while driving, but, of course, other drivers can't do it safely. But the truth is that no one drives well while distracted. Most people are well aware that drinking and driving is extremely dangerous. But a study from the University of Utah determined the effects of driving under the influence of alcohol to be comparable to texting and driving. The study found little, if any, difference in driver reaction between these two dangerous driving-related collateral activities.

My vehicle's GPS won't allow me to input an address when my vehicle is moving. Car manufacturers have technology to immobilize a vehicle from far off locations if the vehicle is stolen. The technology to eradicate cell phone/texting/handheld distracted driving can be accomplished if the cell and car industries were required to address this dangerous problem together.

Vehicle manufacturers, with the assistance of the cell phone industry, could do one of two simple fixes: (1) create a "dead zone" in the vehicle precluding cell phone usage from the driver's seat; or (2) the vehicle manufacturers could wire a vehicle in such a way that a signal would be sent to the electrical system of the vehicle to shut off the engine if the driver turns on his/her cell phone.

In just the last two years, it is likely that 77,000 more people would be alive today if manufacturers in both industries addressed this problem on their own. Obviously, it is time for our government to treat this urgent public health matter with regulations to go where these "fat cat" industries won't go on their own.
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At ANDERSON, HEMMAT & LEVINE, it is our hope that you will make the commitment today to put down the cell phone while driving. And should you be injured by someone who has not made a similar commitment, it is our mission to help you get the justice you deserve.

THE 3 (AND SOMETIMES 4) THINGS THE JURY WON'T EVER GET TO KNOW WHEN CONSIDERING YOUR AUTO ACCIDENT INJURY CASE

Chad Hemmat — Sun, 04 Dec 2011 06:02:00 GMT

From my experience as a trial attorney, I have found Colorado juries to be fair, and even, dare I say, compassionate. Generally, I find it relatively easy to get juries to agree that my clients were injured and should be compensated for their injuries. Furthermore, I am one of those rare trial attorneys who truly believes that our fine Colorado juries nearly always come to the correct decision even though court rules limit the evidence that we attorneys are allowed to present to the jury. Personal injury cases are won before Colorado juries all the time even though those juries never hear the whole story. Accordingly, this article is about the legal limitations placed on what jurors get to know and what they get to consider in making the final decision in your case including if you win, and if so, how much do you win?

The judge at trial is like a referee in a basketball game. Her job, like a referee, is to make sure the players are playing by a set of rules that supposedly makes things fair to both sides. To facilitate fairness, the courts have created certain rules that limit or exclude certain kinds of evidence from being heard by juries. The idea behind these rules is that certain types of information should not be heard by juries because judges believe that the information might overly inflame or influence the jury as they examine the relevant evidence that they should consider in coming to a verdict.

In general, a jury will be able to consider the details of an accident (how it happened), causation (what caused it to happen), and damages caused by the accident (pain, permanent physical impairment, and out -of-pocket economic losses). When juries hear testimony and see evidence in a trial to ultimately decide who wins and how much money they get, the judge limits what is presented to a jury. The idea is that while the jury does not get to hear the whole story at trial, they get to see and hear the "relevant" parts of the story that are necessary to come to a verdict.

When speaking with clients about their upcoming trials, there is a moment when both clarity, and to a lesser extent, fear and disbelief sets in when they hear about all the things that the selected jurors WON'T get to hear in awarding just compensation for their injuries. Those clients start to realize that many of the things they thought were going to be the "keys to victory" at trial are almost always the types of information that evidence rules prevent juries from hearing or seeing. Feel better about the process now? Don't worry, your trial is probably going to work out just fine. The following is a sample of the questions I answer for clients during that often shocking conversation.

Question #1: CAN WE TELL THE JURY THAT THE AT-FAULT DRIVER HAD INSURANCE, THAT THE LAWYER DEFENDING HIM IS BEING PAID BY THE INSURANCE COMPANY, AND THAT ANYTHING THE JURY AWARDS HERE WILL SIMPLY BE PAID BY THE INSURANCE COMPANY?

Answer: No. Rule 411 of the Colorado Rules of Evidence specifically prevents the jury from being told any of this. In fact, in Colorado, the lawsuit you file is NOT against the insurance company at all. Instead, your lawsuit will only name the at-fault party as the defendant. This makes it APPEAR as if you are going to take money from the poor old lady who accidentally rear-ended you.

The main reason personal injury cases go to trial is because of breakdowns in negotiations between injured folks and adjusters from the at-fault driver's insurance company. The at-fault driver usually has nothing to do whatsoever with these negotiations. Nonetheless, according to the Colorado Rules of Evidence, when we sue, we must bring the claim against the at-fault driver, not their insurance provider. This is an attempt by the rules to hide from the jury that an insurance company is involved in the case. In actuality, the whole trial becomes an exercise in us trying to get a jury to award money that will be paid entirely by an insurance company without us ever informing the jury of the "I-word."

Oftentimes, insurance defense lawyers exploit this rule so that it provides an unfair advantage for their side. Defense lawyers tell the jury that they "represent Joe Smith (the at-fault driver), and while Mr. Smith agrees he caused the crash, Mr. Smith feels that the amount of money that HE is being asked to pay is exorbitant." Yes, the insurance defense lawyers sometimes get away with distorting the jury's viewpoint by misleading the jury into thinking that the at-fault driver will be counting up loose change out of his couch to pay the verdict.

In our view, the fact that the insurance company will have to pay the verdict should be honestly revealed to the jury. However, the courts have reasoned that if a jury is told that the insurance company, and not the at-fault driver, will pay the verdict, the juries might award exorbitantly higher verdicts out of disregard or dislike for insurance companies.

In a typical trial, there is only one time where if the jury is listening carefully, they will learn that the insurance company IS paying the defendant's judgment. We lawyers and judges call it "the question." It usually happens so quickly that potential jurors don't even retain the information after hearing it. During the jury selection process, the judge will ask during a series of other rapid-fire questions for any jurors to raise their hands if they are an officer, director, shareholder, or employee of ABC Insurance Company. Yes, it comes up that quickly. This clue that the insurance company is going to pay the defendant's judgment goes away even quicker when the judge asks other "raise your hand" questions like "raise your hand if you already served on a jury in the last year."

So, if you are assuming that the jury will know that the insurance company is going to "foot the bill" and pay the jury award, think again. My clients are nearly always surprised to learn that this key informaiton will be hidden from the jury, and many juries deliberate without knowing or understanding this key information.

Question #2: CAN WE TELL THE JURY THAT THE AT-FAULT DRIVER HAS A REALLY BAD PRIOR DRVING RECORD, AND THAT AFTER THIS CRASH HE HAD SEVERAL MORE SPEEDING TICKETS AND OTHER CAR CRASHES?

Answer: No. Rule 404 of the Colorado Rules of Evidence prevents a jury in a typical car crash case from knowing anything about a defendant's prior driving record. Additionally, courts regularly rule that any moving violation or car crash in which a defendant is involved subsequent to the particular crash that brings us to court is irrelevant and cannot be considered either.

Consequently, clients can count on the jury not being told about any prior or subsequent driving offenses by the defendant during the trial. Again, this rule is often exploited by insurance defense lawyers who tell juries things like "my client has never been involved in ANYTHING like this before." Depending on what a jury assumes, the words "anything like this" could ultimately cause the jury to believe that the accident that the defendant caused was a one time blemish on an otherwise pristine driving record. While there are some unique cases where the driving records of defendants can be introduced into evidence, in the great majority of trials, the driving record of the at-fault defendant is never heard by the jury.

So, if you think that the jury is going to be outraged by the defendant's horrible driving record and numerous moving violations prior to your crash, you are going to be surprised to learn that we cannot present this evidence to the jury. In my experience, nearly all of my clients are surprised by how infrequently the jury ever hears this kind of evidence.

Question #3: CAN WE TELL THE JURY THAT WE SUED ONLY AFTER THE INSURANCE COMPANY OFFERED US $500 AND TOLD US TO STICK IT?

Answer: No. Rule 408 of the Colorado Rules of Evidence prevents the jury from hearing about any prior settlement discussions. The idea behind this rule is to encourage settlement discussions between the parties without any concern that what they say in an effort to settle the case will be used against them later on if the case goes to trial. Accordingly, we are not allowed to tell the jury about any offers or any discussions related to settlement negotiations. Consequently, if you think the jury will be outraged by the inadequacy of the pre-trial settlement offers by the insurance company and will award you a large verdict, guess again.

Question #4: CAN WE TELL THE JURY ABOUT THE AT-FAULT DRIVER'S RECKLESS DRIVING THAT CAUSED THE ACCIDENT?

Answer: Theoretically yes, but as a practical matter, no. Rule 402 of the Colorado Rules of Evidence excludes irrelevant information from being introduced to a jury. Of course, that begs the question, what could possibly be more relevant in a car crash trial than how the crash occurred? This is true if the defendant claims that he did nothing wrong to cause the crash. In these cases, the details about how the crash occurred will be introduced to the jury. However, with 20 plus years of trial court experience, I can tell you that in any aggravated case of outrageous driving on the part of a defendant, the insurance defense attorney will smartly admit liability. Admitting liability means that the defense lawyer can tell the jury "yes, my client admits he was at fault for this accident." What that seemingly harmless statement does is render any details about the crash and the reckless driving of the defendant "irrelevant" by the judge. Surprisingly, this means that no information about the details of the crash will be shared with the jury. In these cases, the jury is routinely told that there was a crash, the parties agree that the defendant caused it, and that the trial will only focus on whether any injuries were caused by the accident, and if so, how much should the plaintiff be compensated for those injuries.

Even when the defendant admits liability, there are some notable exceptions such as drunk driving that allows us to reveal the reckless driving of the defendant to the jury. However, most of the time, anything really reckless that a defendant did behind the wheel to cause or contribute to an accident will be kept from the jury simply because the defendant admits liability, thereby focusing the entire trial on the extent of damages actually caused by the crash.

So, if you think that a jury is going to be outraged by the bone-headed driving of the at-fault defendant and consequently award you a large verdict, you thought wrong. Again, most of my clients with upcoming trials are surprised to learn that juries rarely get to hear about the defendant's reckless driving that caused or contributed to the car crash.

CONCLUSION:

I hope that this article has given you a better understanding of the legal limitations placed on what jurors get to know and what they get to consider when they are deciding on a verdict in a car crash injury case. Nevertheless, at ANDERSON, HEMMAT, & LEVINE, we are not afraid to go to trial and have found that even though juries do not get to hear the "whole story," Colorado juries are fair, compassionate, and nearly always "get it right" with respect to the verdicts they award.

SOCIAL SECURITY DISABLITY: Answers To The 10 Most Asked Questions

Chad Hemmat — Sun, 13 Nov 2011 06:44:00 GMT

From my experience, there are protections and benefits afforded by our laws that people know that they are entitled to if they are injured. For example, people seem to know that they are entitled to workers' compensation benefits if they are injured on the job. Also, people seem to know that if they are injured in a motor vehicle accident, they can look to the at-fault driver's auto insurance or their own uninsured motorist coverage (or both), for compensation for their injuries.

What most people do not seem to understand are the overlapping benefits that Social Security provides to injured people. A common misconception is that individuals with work-related injury claims or motor vehicle accident claims are not eligible for Social Security disability benefits. As a result, Social Security is often overlooked as a continual source of benefits for injured people, and thousands are missing out on benefits that they are eligible to receive. Sadly, they are missing out on those benefits simply because they are unaware of their rights.

This article is a basic review of Social Security disability benefits and provides answers to 10 of the most common questions that we get asked about Social Security. To better help our readers understand their rights, these answers are as direct and to the point as possible.

1) AM I ELIGIBLE?

ANSWER: Social Security is a system into which you pay during your working years through the FICA contribution on your pay check. To be eligible for disability benefits, you must have worked long enough and recently enough under Social Security guidelines, depending on your age. If you have worked about half the business quarters in the last 10 years, you are probably eligible.

2) AM I DISABLED ENOUGH?

ANSWER: Social Security pays benefits to anyone who can establish that they meet the definition of "disabled." According to the Social Security Administration, "disabled" means "an inability to do any substantial gainful activity by reason of a medically determined physical or mental impairment which can be expected to continue for not less than 12 months."

3) HOW DO I APPLY?

ANSWER: Lawyers are not involved in the application process when you initially file for Social Security benefits. Social Security claims can be filed online or in person at a Social Security office. A call in advance to set up an appointment may be helpful in speeding up the application process.

4) WHAT HAPPENS AFTER I APPLY?

ANSWER: When you apply for Social Security benefits, usually months will go by with no word whatsoever from the Administration. You might not hear anything for 6 months or even longer after you submit your application. During that time, the Social Security Administration is gathering your medical records and submitting those records to a case worker to determine whether you are entitled to benefits. Eventually, after many long months of waiting, you will get their determination.

5) HOW OFTEN DO PEOPLE GET DENIED BENEFITS FOLLOWING APPLICATION?

ANSWER: All the time. Nearly everyone who applies for benefits waits months to hear from Social Security, and when they do, it's usually a denial.

6) SO, SHOULD I GIVE UP WHEN I GET THAT DENIAL?

ANSWER: No way! When you find out that your benefits have been denied, you should quickly submit the necessary forms to appeal that denial. In Social Security matters, your case is brought before an administrative law judge only after you appeal the initial denial of your application. This is the stage that you can, but are not required to, hire an attorney to help you with your case.

7) HOW DO I APPEAL?

ANSWER: The denial letter that you receive will detail the forms that you must submit and the deadline to lodge your appeal. Once those forms are filed, it is up to Social Security to ready your matter for the hearing in front of an administrative law judge. Hearings are set anywhere from 8 months to even as much as a year or longer from the time you file your request for an appeal.

8) WHAT SHOULD I EXPECT AT THE HEARING?

ANSWER: Hearings are conducted in several locations throughout Colorado. Each hearing is attended by one judge, the judge's clerk, and usually by a vocational rehabilitation expert that is retained as a consultant for the judge. Sometimes, a medical doctor consultant will attend, usually by telephone, to assist the judge. There is no opposing counsel at the hearing. That's right--there is no one at the hearing who has been hired to try and keep you from receiving benefits. Hearings generally last from 30 to 45 minutes.

9) HOW DOES THE JUDGE DECIDE?

ANSWER: Administrative law judges are trained to use a 5 step sequential process to determine whether you qualify for Social Security benefits. If you fail to meet any of the requirements, you lose.

Step 1: The judge determines if you are currently performing work that is both substantial and gainful. If you are, you lose.

Step 2: The judge determines whether your impairment or a combination of impairments would be considered "severe." If the judge determines that it is not, you lose.

"Severe" is defined as more than a minimal effect on an individual's ability to do basic work.

"Impairment" must result from an anatomical or physiological or psychiatric condition.

Step 3: The judge determines if the impairment has lasted or is expected to last 12 consecutive months. If it is a condition that will not last 12 months, you lose.

Step 4: The judge must determine whether you can perform past relevant work.

This step requires the judge to determine what your impairment level still allows you to do. They call this your "residual functional capacity" or RFC. The judge then reviews the physical and mental demands for the type of work that you performed in your past, usually the last 15 years. For assistance in answering these questions, the judge will ask the vocational rehabilitation expert in attendance to detail the demands for the type of job that you performed in the past. To answer these questions, the vocational expert refers to a book called The Dictionary of Occupational Titles. Lastly, once the judge determines the generic requirements of your past work, the judge then considers your age, education, and RFC, and then determines whether you are restricted from returning to your past relevant work. If the judge determines that you can return to your past relevant work, you lose.

If the judge determines that you can no longer perform any past relevant work, then the judge proceeds to the 5th step of this sequential process.

Step 5: The judge considers your RFC along with your age, education, and past work experience to determine whether other work exists in the national or regional economy that you could perform on a regular basis.

Again, to answer these questions, the judge will turn to his vocational consultant for clarification. The questioning goes something like this: "Assuming I rule that Mr. Jones is unable to return to his former jobs as either a mechanic or a security guard, based on his background, education, and relevant work experience, and not considering for a moment any physical limitation, are there other jobs that Mr. Jones is qualified to do?" The vocational consultant might then say, "Based on Mr. Jones' background, he would be qualified to be an auto parts clerk and a dispatch operator for a security company."

Then the judge will ask something like, "Assuming I find that Mr. Jones' current physical restrictions are that he must alter his position sitting and standing every 15 minutes, he will require 15 minute breaks every 45 minutes, and he can lift no more than 5 lbs, and assuming he can do no bending, stooping, squatting, no climbing ladders, no climbing stairs, and no work from any elevation, would Mr. Jones qualify physically to do either of the two jobs you described--that of a dispatch operator, or auto parts clerk?" The vocational consultant will then review for the judge the requirements for these jobs using The Dictionary of Occupational Titles and express his opinion as to whether these jobs fit within the restrictions laid out by the judge. If the vocational consultant convinces the judge that you qualify for these jobs by experience or training, that you could perform these jobs according to your RFC, and that those jobs are plentiful in the economy, you lose.

10) HOW OFTEN DO PEOPLE WIN BENEFITS AFTER HEARING?

ANSWER: Nationally about 60-65% of those who go through the hearing process after originally being denied benefits win at hearing.

At ANDERSON, HEMMAT & LEVINE, we believe that when you are injured, you should get all of the benefits and compensation to which you are entitled. Thousands of people who are injured on the job or in car accidents overlook Social Security as a continual source of benefits only because they are unaware of their rights. If you have been injured and you have questions about your eligibility to receive Social Security benefits, please call us today for a free consultation.

THE TOP 10 WAYS TO SELF-DESTRUCT YOUR PERSONAL INJURY CASE:

Chad Hemmat — Sat, 29 Oct 2011 03:05:00 GMT

Before I begin, I want to confess that this is going to be a frank and honest discussion about your case. Let me warn you that this article is not for the faint of heart, because it is too important of a topic for me to mince words. The fact is that there are several types of cases, situations, and clients that my lawyers are trained to identify and reject. Like David Letterman, I compiled a list of the top 10 ways that people self-destruct otherwise perfectly good personal injury claims. This top ten list, in relative order from less egregious to more egregious, will hopefully serve as an eye-opener for present and future clients.

It is a fair bet that if you contact my office and detail one or more of the following circumstances, you will be gently and politely told that we probably can't help you unless you have some strong compensating factors (i.e. you were hit by a drunk driver or some equally compelling fact). In truth, if you have one or more of the following circumstances, like Tom Cruise said in the blockbuster "A Few Good Men," you probably don't need a lawyer, you need a priest.

10) Waiting Weeks To Seek Medical Attention:

If you look hard enough, you can find statistics claiming that a large percentage of individuals injured in motor vehicle crashes will experience little or no symptoms for up to 6 weeks after the crash. Not surprisingly, these types of statistics are usually found in pamphlets located in the office reception area of personal injury attorneys. However, do you know how many people actually believe that these statistics are true? Nobody believes they are true, not even the personal injury attorneys and chiropractors who made up these statistics.

As a trial attorney with 20 years of experience, I know all too well what I can and can't sell to a jury of your peers. I can say with certainty that if you were in a car crash and it took you weeks or months to recognize that you were hurt, you should not waste your time by bringing a personal injury claim. If it really took you 6 weeks to feel pain after a big crash, I'm afraid that you have much bigger problems than an insurance claim to worry about.

9) Treating only with Chiropractors/ Massage Therapists:

The following is a summary/combination of the answers that I receive from prospective clients when I ask them about the medical care that they received after an automobile accident. "I was injured a year ago and my care has been limited to chiropractic manipulation, shiatzu massages, acupuncture (administered by my chiropractor), and Rolfing, by some guy in saddles whose name I forget." I'm sorry-- you might be legitimately injured, but the choices you made for treatment are really….well….. Look, in the eyes of most juries outside of Woodstock, your case isn't worth the price of your ergonomic pillow. A few lawyers will take your case, but if you think they are going to score big money for you, you are kidding yourself.

8) Failing to show up for doctor appointments or Stopping Treatment For No Reason:

This one mystifies me the most. I often see victims of severe car crashes start their personal injury cases on the right foot by scheduling and attending an appointment with a good medical doctor. From there, these victims are referred to treat their injuries with a respected physical therapist. With appropriate care, in about 5 to 7 months, the doctors will be able to detail a meaningful prognosis, and these cases will usually settle for really good money. However, in some cases, the client will discontinue their treatment for no reason and disappear off the face of the planet. Nothing tells the insurance company that you "ain't hurt" like suddenly quitting your care without a good reason. If you are injured but you don't want to actually get medical care, please don't waste your time, my time, and your doctor's time by bringing a claim against the insurance company. By prematurely ending your medical treatment for no reason, you just snatched defeat out of the hands of victory.

7) Focusing Your Claim on Post-Traumatic Disorder:

If there is a bigger "waste of time" diagnosis than this for a personal injury claim, I certainly haven't seen it. Generally, most jurors are going to associate PTSD with shell-shocked Vietnam Vets, not a salesman in a Chevy Cavalier who was involved in a minor fender-bender. While I acknowledge that PTSD is a very real malady, I honestly don't care what your shrink, Dr Sigmond Putz Ph.D, is telling you about "how real the trauma is to you." In a minor, fender-bender case, I can't sell this B.S. to any juror anywhere.

6) Telling Big Fish Stories

I often have clients that self-destruct their personal injury claims by trying to exaggerate the severity of their accident and the injuries that they received from that accident. For example, the police report says that the driver was rear-ended by a vehicle going less that 20 mph. At the hospital, my client tells the ER doctor, who of course records it in my client's medical records, that it was a 40 mph crash. Months later, that same client visits an orthopedic surgeon and claims that the at-fault driver was going 50 mph when he rear-ended my client's vehicle. Insurance defense attorneys call these "big fish stories." More than anything, this sort of exaggerated storytelling makes the injury victim look like a liar. While telling a "big fish story" will not always be fatal to a case, it will undermine your credibility in front of a jury and cost you tens of thousands of dollars in your settlement or judgment.

5) Providing Doctors Alternative/ Possible Reasons For Your Injuries:

This one is a gem. The rough-and-tumble macho guy walks himself into the ER days after a crash and tells the doctor, who promptly records it in their notes, that the crash from days ago might be why he's hurt, but of course he has to also say, "I do a lot of power lifting and nearly always lift with some degree of pain." Who are these guys trying to impress? They certainly aren't trying to impress me. In these types of cases, I suggest you take your case to a lawyer who knocks on people's doors with poster- sized checks. In all honesty, there is no better butt-kicking that a client can get than the one he gives himself.

4) Concealing Your Medical History:

Up until now, we have been largely focusing on ways that people involuntarily or unknowingly self-destruct their personal injury claims. Now, we are going to discuss the more deadly and voluntary ways that people destroy their claims by engaging in intentional deception. One of the quickest ways to self-destruct your case is to conceal or lie to your doctors, opposing counsel, and your own attorney about your medical history and prior injuries.

If you had neck and back injuries before a car crash that are well-documented by your prior doctors, but you lie by telling your current doctor that you have no prior neck and back injuries, and they record that in your file, your case is a goner. This is a trick that has never worked for any deceptive client that I have unknowingly (until the day their deception becomes clear) represented and it has always blown up in their faces. The doctor looks uninformed, the client looks like a liar, and a good case is now worth very little.

3) Drug-Seeking:

The truth is that juries hate drug addicts more than they hate negligent drivers. Sadly, this is true even if the drug addict became a drug addict because of the injuries that they suffered from a collision with a negligent driver. In any case, it doesn't matter because the jury will almost never, and I mean NEVER, award decent injury compensation money to a drug-seeker because they assume that they will just use that money to buy drugs.

Insurance companies know how to find out if you are a drug addict. They know the tricks that drug-seekers use to get drugs like rotating through multiple doctors and multiple pharmacies. Sometimes drug-seekers go to 5 or 6 different metro area emergency rooms and get drugs by claiming that they are suffering from "through the roof pain." Insurance companies discover drug seekers by sending medical releases to get your records from all of the local hospitals and pharmacies. Drug seekers always get caught, and once they are caught, their personal injury cases lose most of their value and are settled very cheaply in favor of the insurance company.

2) Cheating On Your Taxes- But Then Seeking Lost Wages:

Now, this form of intentional deception takes "real huevos." I am always amazed at how often I have to explain to people who don't file taxes or misreport their income--there I go again, trying to keep things nice--I mean tax cheats-- that they won't be able to make a claim for wage loss in their injury claim. I can always tell that I am going to have to prepare to have this special talk with a client when that client refuses to give me their tax return, but swears up and down that he can prove his income by showing me his W-2's, 1099's, or bank statements.

Here's the rule: If you want to claim lost wages in your injury claim, the only proof that insurance companies will accept are your tax returns. Juries dislike tax cheats (even if some of them are doing the same kind of cheating) almost as much as drug-seekers. If I learn in advance that you are seeking a wage loss claim, but you didn't file your taxes, I promise that your claim for wage loss will never see the light of day. Furthermore, by advice of your counsel, you will be pleading the 5^th Amendment a lot during your painfully long deposition.

1) Being a Jerk:

Should I be more specific? Sure, okay. The number one way to ruin your case is to do anything that demonstrates that you are a "loose cannon," arrogant, not likable, or maybe just a prick. The type of behavior that I am referring to would include threatening the other driver at the scene of the accident, being nasty in the emergency room to doctors and nurses, acting unappreciative of your doctors or therapists, being difficult in the insurance doctor's exam, acting like an A-hole in your deposition, and/or yelling during your court-ordered settlement conference.

First, this sort of conduct is ALWAYS written down and recorded by someone. Second, and most importantly, insurance companies and their lawyers know that juries dislike jerks even more than they dislike drug-seekers and tax cheats. You should assume that if you were acting like a jerk on a couple of occasions during your medical care or during the litigation of your case, it is likely that your case won't settle, and it is also likely that when your case goes to trial, you will lose or get very little.

CONCLUSION

Over the years, I have found that many well-intentioned plaintiffs simply do not understand how certain actions are perceived by an insurance company. I hope this blog has been informative and will help you avoid the pitfalls that self-destruct a personal injury case. For those intentionally deceptive plaintiffs, while our firm does not want to represent those people, maybe this blog will deter them from engaging in such conduct. If you have been in an accident and are legitimately injured, call us today for a free consultation.

AUTOMOBILE INSURANCE: What it does, What all those options mean, and What you are really buying

Chad Hemmat — Sat, 22 Oct 2011 01:12:00 GMT

When you purchase automobile insurance, you are purchasing peace of mind and a level of financial security. Some people have a lot of assets and therefore, have a lot to lose if they are involved in an accident. Others have very little and do not have as much to lose. In any case, the options and levels of coverage that insurance companies offer can be confusing. Recently, I went to a new insurance company and updated my own coverage. During that process, it occurred to me that a basic explanation of the options and levels of coverage that insurance companies offer might be helpful to those who are thinking about purchasing or updating their car insurance.

BACKGROUND:

In life, there are some certainties. One such unfortunate certainty, is that during the course of your life, statistically, you will probably be involved in at least one serious car accident. You might be a victim of an automobile accident and consequently, you will expect the driver who caused the crash to pay for your property damage and hospital bills. You could be the cause of the crash and have the people that you injured looking to you to pay for their hospital bills. You or a loved one could be the cause of a serious catastrophic injury, or even a death.

When car accidents happen, the law looks to the person who caused the accident to pay the damages and losses. Let me repeat my prior statement for emphasis--the law looks to YOU to pay if you are at fault. So, while all Colorado residents are required to have car insurance, NOTHING relieves you of your primary legal responsibility to pay for all of the injuries and losses that your careless driving causes to others.

When you buy car insurance, it becomes the insurance company's job to pay your share of the injuries and losses that your careless driving causes if you are in an accident. But it is important to remember that having auto insurance is by no means a blank check. All auto insurance is sold at different levels of coverage. When your coverage is exhausted, you are left to pay for the injuries and losses that your insurance didn't cover. Therefore, purchasing the right level of coverage is critical.

One size does not fit all when it comes to auto insurance coverage. Simply put, not everyone needs the same level of coverage. A 50-year-old married breadwinner who supports his two children in college generally requires a greater level of auto insurance protection than a single 19-year-old Starbucks employee who still lives with his parents. Why? Because the more assets you have, the more someone can take from you if you cause a car accident. Auto insurance is designed to protect your assets. The more assets you have, the more insurance coverage you should seek to protect yourself.

INSURANCE COVERAGE OPTIONS:

If you call an auto insurance agent today and tell them that you would like to purchase insurance for your car, you will be struck by just how many different options are available. Do you want collision coverage or just basic liability? How much liability coverage do you want--basic or higher limits of coverage? Do you want Med Pay? How much Med Pay do you want? How about uninsured motorist coverage? What about an umbrella policy?

Decision #1: Liability Only, Or Full Coverage:

The basic insurance that every car owner in Colorado is required to carry, at the very minimum, is a 25K/50K liability policy. That means that if you crash into someone, your insurance company will pay no more than $25,000 per person, and no more than $50,000 per accident for the physical injuries, medical bills, wage loss, and emotional suffering to the people that your careless driving hurt. This minimum coverage also pays no more than $15,000 for all property damage that you cause as the at-fault driver.

So what happens if you have a minimum limits policy and your bad driving kills someone on the road? This is a great example of when your insurance may be exhausted and you still might be looking at many hundreds of thousands of dollars of personal liability. There is nothing wrong with purchasing only liability coverage at the minimum limit. However, this type of coverage is not appropriate if you make good money, have assets, or are not prepared to declare bankruptcy in the event that you really injure someone in a crash.

Another coverage option that you can purchase in addition to liability is collision coverage ("full coverage"). The only benefit collision coverage adds to your policy is the ability to get your own car repaired or replaced, even if you cause the crash. If you have a nice car, and you are not okay with driving around with dents and dings on your vehicle, collision coverage is really important. Collision coverage will also pay to repair your vehicle if a deer jumps in front of your car, if you park your car and it gets hit, or if you inexplicably smash your car into a tree or light post.

If you are not at fault for the crash, you do not need to look to collision coverage to pay for the damage to your car. The at-fault driver's insurance will have to pay. But with collision coverage on your policy, if you don't like what the at fault driver's insurance wants to pay for your car damage, you can always have your insurance company repair your vehicle through your collision coverage. Clearly, having collision coverage is for anyone who has a newer vehicle that he would want to repair if it was damaged in a car accident.

Decision #2: Limits of Liability:

When you are choosing the liability limits of your insurance policy, this is not the time to go cheap. When you are asked how much liability coverage you want, the real question is how much protection you need from people who sue you if you injure them in an accident. Again, the amount of liability coverage that you need is determined by what you have as far as assets, money, good job, etc. For example, a millionaire should be looking for a million dollars or more in liability coverage limits. A young college student needs nowhere close to that amount of coverage. A basic 25/50 policy would probably be fine. When that student graduates, gets a job, a wife, a baby, and a mortgage, changing over to higher liability coverage limits would probably be in order.

Think of it this way. Assume you are driving down the road and you get an important call on your cell phone. While trying to answer your phone, you strike and severely injure a pedestrian in a cross walk. When I get hired by that injured pedestrian whose injuries now prevent her from working, I will be looking to determine the extent of my client's current and future medical needs and past and future wage loss. I will then compare those figures against the limits of your liability coverage. If my client's medical needs are greater than your coverage limits, I will have to make a decision as to whether I'm going to accept a settlement with your insurance company for the limits of your coverage, OR decide to take you to court in the hopes of reaching beyond your insurance coverage limits to take your personal assets. So, if you have low coverage limits, but have a house with equity, cars you own outright, savings accounts, or a good job where I can garnish your wages, then I may decide not to take what your insurance company is willing to pay and instead pursue you in excess of your coverage limits.

Consequently, you should try to purchase liability coverage that is equal to or better than your own financial picture. Beyond basic 25/50 coverage, insurance companies nearly always offer 50/100, 100/300, and 250/500 coverage limits. Remember, the first number signifies how much your insurance company will pay to any injured person looking to come after you for your bad driving, and the second figure is the total amount that they will pay regardless of how many people you hurt in your crash.

Many insurance companies offer one million dollars of liability coverage. Professionals with houses, cars, and good jobs should strongly consider such higher limits of coverage. Again, the higher your liability coverage limits are, the more likely the people that you injure in a car accident will limit their demand for injury compensation to the limits of your liability coverage. In other words, having a lower liability coverage limit increases your risk of personal liability if you are involved in an accident. Conversely, having a higher liability coverage limit reduces the risk of personal liability.

Decision #3: Uninsured/ Underinsured Coverage

Studies show that 15-25% of all drivers on the road are uninsured. Regardless of how much liability insurance you have, if you don't purchase uninsured motorist coverage, and you are injured by an uninsured driver, no one will be there to compensate you for your injuries and losses. Beyond the population that is completely uninsured, most drivers on the road are underinsured. Purchasing uninsured coverage gives you the ability to look to your insurance company to compensate you for your injuries that are caused by at-fault uninsured and underinsured drivers.

As a basic rule, whatever level of liability coverage you have, you should consider the same amount of coverage to protect you against uninsured and underinsured drivers. So if you decide you need 250/500 liability coverage, you get 250/500 uninsured motorist coverage for the same reasons. It tends to be rather cheap coverage and invaluable if you are hurt by a careless driver.

Decision #4 Med Pay or Not?

If you are hurt in a crash and you have Med Pay, your insurance will pay for your hospital and medical bills up to the limits of the Med Pay coverage you purchase regardless of who was at-fault for the accident. Med Pay is less important if you have good health insurance. However, health insurance companies expect to be paid back for the money that they spend for your care if you get a settlement for your auto accident. With Med Pay, you never have to repay your insurance company the money that they provided for your care. Also, most health insurance plans require co-pays and deductibles to be paid, and you can use your Med Pay to cover those costs. In Colorado, Med Pay is automatically included in all basic auto insurance plans to the level of $5,000 unless you decide that you don't want it. Most insurance companies offer Med Pay coverage levels between $5,000 and $25,000.

Decision #5: How About Umbrella Coverage?

Insurance companies also sell a product called umbrella coverage. These are generally affordable secondary policies that protect you up to another million dollars beyond any other policy that you might have in place. For less than a couple hundred dollars a year, you can add an umbrella policy to your car insurance coverage to protect you from personal liability for injuries that you cause to others that might exceed your current coverage limits. Additionally, some insurance companies sell umbrella policies that can be used as secondary uninsured/underinsured motorist coverage. If you are injured, these umbrella policies, along with your uninsured motorist coverage, can afford you high levels of potential insurance coverage.

Because the cost of umbrella coverage is so reasonable, and because they provide such complete and massive coverage, any professional with assets and obligations, mortgages, children, a good job, etc. should strongly consider adding this coverage to their existing coverage if possible.

At ANDERSON, HEMMAT & LEVINE, we want you to be the safest driver possible and we hope that you will never be the cause of an accident. But whether you cause an accident or not, determining the right type and level of insurance coverage is vitally important. I hope that reading this article has given you the information that you need to make an informed decision about your car insurance policy.

WHAT TO DO IF THE MEDICAL FINANCE COMPANY INFLATES THEIR BILL

Chad Hemmat — Fri, 14 Oct 2011 23:11:00 GMT

I wrote this article to inform uninsured individuals who have been injured in a motor vehicle accident of their rights when they are dealing with medical finance companies. If you are uninsured and in need of medical care, there are several private programs that will direct you to qualified physicians and therapists. To receive treatment, you will sign what is called a “medical lien agreement.” Under this agreement, medical care is provided without any money paid by you up front and in exchange, at the time of settlement or jury verdict, the medical lien company will seek reimbursement from your settlement proceeds for the treatment provided.

These medical finance companies provide an avenue of care for uninsured people who might otherwise go without much needed medical treatment. However, these "treat now-pay later" agreements can be pricey because these companies are assuming a risk that the case might not result in settlement and charge huge mark-ups on the medical service that they provide. For example, an outpatient knee surgery, which normally may cost $5,000, may end up costing you $40,000. Consequently, sometimes the personal injury settlements that our clients receive might not be large enough to cover all of their medical bills. This article discusses the rights of injured victims and the solutions and techniques that we utilize when the bills exceed the money available.

A) MEDICAL CHARGES MUST BE REASONABLE

When the medical finance bills become due, it is important that injured victims understand that the bills can be reduced through negotiation with the medical finance company. If the finance company is unwilling to negotiate or if the parties are unable to agree on an amount, the amount that will be paid will be determined by a court. So, ask yourself, if the finance company has to seek a court order requiring the payment of their bills, what do they have to prove? The simple answer is that they have to convince a judge that their medical charges are reasonable regardless of any one-sided agreement that you signed with them to receive treatment. The law requires the finance companies to prove that what you were charged for your medical care is reasonable as compared to what another patient might pay for similar services.

From what I have observed, the reasonableness of the rates that medical finance companies charge for medical services is always vulnerable to attack. On the other hand, the higher costs charged by the finance company come with the territory because these medical finance companies allow you to see doctors right away without you having to pay any costs up front while they agree to wait months or years to get paid. For this business structure to make sense there must be some kind of incentive for the finance company. After all, this business model would not be viable if finance companies can only expect to receive the “going rate” two to three years after they provided you with the resources necessary to see the doctor right away.

Nevertheless, when we take medical finance companies to court over their billing, we know that they regularly have problems proving that their charges for medical care are reasonable. Now that you know that you, the patient, are in a superior bargaining position with medical finance companies, the question now becomes, what do you or your attorney do to get them to take less?

B) 3 STEP APPROACH:

The remainder of this article discusses the 3 step approach that we use in our office to get medical finance companies to reduce their bills. This approach works both when dealing with medical finance companies or doctors.

STEP 1: THE LETTER:

The first step that we take to reduce our client’s medical finance bills is to send a letter to the finance company to begin the negotiation process. In our view, written communication through a letter is a necessity for negotiating and reducing medical bills with the finance company because telephone calls or emails are meaningless. This letter must be sent to the person in charge of collection for the finance company and it should be sent by certified mail or in a way that you can prove that it was received. Certified mail, although costly, is usually adequate and it makes the letter appear more important. I prefer to fax the letter because the medical finance receives it quickly and I have a confirmation sheet proving that they received the letter.

When I write these companies to tell them that their prices are too high, I nearly always begin the letter by explaining that my client has every intention of paying the reasonable value for the treatment that they received. Again--let me be clear--these companies deserve to be paid the reasonable value of their services. But the prospect of getting money NOW can provide an additional incentive for these companies to agree to accept far less than their gross charges.

I always try to be specific in my concerns about the prices being charged for the treatment. For example, I point out that they invoiced my client for physical therapy at a rate of $350 per visit. Then I tell them that we are aware that other therapists in the area charge health insurance companies around $150 per visit. Also, these therapists that charge significantly less often expect to receive less than this amount.

The amount billed for surgical procedures is likewise often inflated. Often, people who have knee or shoulder surgical scopes have their procedures in an out-patient surgical center. From my extensive experience, I know that these procedures are invoiced to insurance companies in the range of $4,000 to $5,000. Also, I know that the insurance companies only pay doctors between $1,800 to $3,000 for these procedures. Conversely, medical finance companies will often submit invoices to my clients charging them $15,000 or more for these same procedures. I simply inform these companies that I know the "going rate" for the services and that their charges far exceed that amount.

The three other things I nearly always communicate to the finance companies in my letters are: (1) I tell the finance company the amount of money that my client received from his or her settlement. Including this amount in the letter helps the finance company understand why my client needs them to reduce their bill because they are told how much we have in total to pay them and the other medical providers that have liens on my client’s settlement; (2) I provide the finance company with the monetary amount or figure that my client would be willing to pay. Simply complaining about a bill will get you nowhere. You have to make the finance company understand that you are willing to pay them, just not as much as they want; (3) I always give the finance company a deadline to accept the figure. The collection people to whom we send these letters have to get approval from their supervisors before they can authorize any reduction, so I usually give them ten days to accept my offer.

In our 3 step approach to reducing our clients’ medical bills, a majority of the disputes with the finance companies are resolved by writing a letter and negotiating amicably with the finance companies. However, if that doesn't work, the next step is to retain a physician to review the billing. Hiring a physician to review the finance company’s bills demonstrates that you are very serious about disputing their charges.

STEP 2: RETAIN A PHYSICIAN TO REVIEW BILLING--SEND SECOND LETTER:

As I stated earlier, sending a letter to the finance company detailing the reasons why my client needs their bill reduced often leads to a favorable compromise for my client. However, on occasion, I retain a medical doctor to review the billing that is in dispute. The physician then writes a report that discusses the medical services that my client received and the reasonable value of those services. Of course, hiring anyone costs money, and physicians charge a few hundred or even a thousand dollars for these kinds of reports. However, these reports are usually worth every penny because they can reduce the bill that you owe to a medical finance company by thousands or even tens of thousands of dollars.

Hiring an expert to determine the reasonable value of the medical care that my clients received usually results in a favorable resolution for my clients. It shows the finance company that you are serious about disputing their charges. It also shows the finance company that if this matter has to be decided by a judge, we already have our expert ready to go. Overwhelmingly, cases that don't resolve with a letter get resolved after submitting our expert’s report and a subsequent second letter to the finance company.

However, there are cases where some finance companies continue to refuse to reduce their bills even after we have sent them a letter and provided them with an independent doctor’s report showing that their billing is unreasonable. In those rare cases, we turn to step 3.

STEP 3: INTERPLEADER:

99% or more of the fights with finance companies resolve either with one letter or after we retain an independent doctor to write us a report. However, there are occasions where resolution can only be reached by interpleading the money with the court.

“Interpleader” is a strange legal word which basically means "let's let the judge decide." Interpleader works well for my clients because when we seek a judge’s intervention, we already have an independent doctor who has provided us with her opinion that the finance company’s bills are unreasonable. Plus, once the case is before the court, we can demand that the finance company produce, as part of discovery, checks and invoices to show what they ACTUALLY paid the clinics that treated my client. Invariably, those prices will be substantially less than what they are now asking for in return from my client.

In my experience, the interpleader hearing is nearly always a quick and pleasant experience for my clients. Generally, judges like people much more than companies. Also, inflated invoices from the finance company coupled with us bringing in a live independent doctor with a much more reasonable opinion of the true value of the charges usually results in my clients winning and receiving a verdict in their favor.

At ANDERSON, HEMMAT & LEVINE, we fight to get the most money for our clients, either through a settlement or jury verdict. Still, sometimes the bills are overly inflated or there just is not enough money to go around. In those cases, we will continue to negotiate with medical finance companies to reduce our clients’ bills so that the client gets to keep as much of their settlement as possible. This willingness to fight for you even after you have settled your case is what sets us apart. Call us today if you have been seriously injured and are worried that a medical lien company will take all of your settlement money.

WHY THE HEALTH INSURANCE COMPANIES' RIGHT TO REPAYMENT AFTER THE INJURY SETTLEMENT IS DEAD IN THE NEW ERA OF MAKE WHOLE ARBITRATIONS

Chad Hemmat — Sat, 08 Oct 2011 02:46:00 GMT

Due to the passage of C.R.S. §10-1-135, the "Make Whole" statute, I believe injury victims will have a huge advantage against state-regulated (Non-ERISA qualified) health insurance companies in future subrogation battles. This new statute calls for arbitration to determine the extent to which insurance companies can claim a plaintiff's settlement money. Just this week, I participated in the first arbitration in Colorado that tested the strength of an insurance company's right to subrogation. I believe this new statute effectively ends the "chokehold" that insurance companies have had on plaintiffs for years.

For a more in-depth discussion of subrogation and the "Make Whole Statute," please refer to our prior articles on these topics.

A) FIRST ARBITRATION IN COLORADO ON MAKE WHOLE STATUTE:

This week, Anderson, Hemmat & Levine arbitrated the first case testing the recent law change in C.R.S. § 10-1-135. Pursuant to this statute, a health insurance company has no right to repayment or subrogation if an arbitrator determines that the amount of recovery does not fully compensate the injured party for his or her damages. In other words, the injured victim's right to be made whole is stronger than the right of the health insurance company to be paid back.

1) The Way It Used To Be:

Prior to the adoption of the "Make Whole" statute, an injured person was contractually obligated to pay back his or her health insurance company for the medical bills that were paid on the insured's behalf because the medical expenses were caused by someone else's negligence. This contractual requirement is generally buried deep within an insurance policy. Nonetheless, before the enactment of the "Make Whole" statute, health insurance companies never hesitated to enforce their right to repayment.

2) How it Has Changed:

C.R.S. § 10-1-135, the "Make Whole" statute, was adopted last year and went into effect on August 11, 2010. This new statute states that insurance companies do not have a right to take any settlement or judgment money from an injured victim until that victim has been "made whole" by settlement or judgment. An arbitrator determines whether an injured victim has been made whole.

Furthermore, if an injured victim receives the full amount of the available coverage limits the rebuttable presumption is that the injured victim has NOT been made whole. Conversely, if the settlement by the victim is less than the coverage limit, the rebuttable presumption is that the victim HAS been made whole. However, even in those cases, the law simply requires proving, regardless of the settlement reached, that the victim has not been fully compensated for his or her injuries and damages. With the "Make Whole" statute now in place, how exactly will health insurance companies ever succeed in arguing for subrogation at arbitration? Simply stated, they can't.

3) Why Injury Victims Now Hold Nearly All of The Cards:

Throughout the years, we have recovered a hundred million dollars or more for our injured clients. Without exception, all of these victims would give the money they received from their cases back to have never suffered the injury, pain, or disability in the first place. In fact, given a choice between having their health restored or doubling their settlement recovery, the overwhelming majority choose good health over a cash payment. Accordingly, I have always believed that it is unlikely that any monetary settlement can make an injured victim completely whole after sustaining injuries from a negligent party, and I bet that most arbitrators and insurance adjusters will see things my way.

B) THE BATTLE BEGINS:

This week, what started out as a theory got tested as I arbitrated the first case testing the recent law change in C.R.S. § 10-1-135.

1) The Facts:

After a horrific car accident, my client required neck surgery as a part of her medical treatment and healing process. As a result, of the accident my client became disabled, lost her $50,000 per year job, and incurred $102,000 worth of medical expenses (for which the health insurance company paid $36,000). Furthermore, due to her disability, my client has been unemployed for three years. Not surprisingly, the health insurance company wanted every penny of the $36,000 to be repaid.

2) The Health Insurance Company's Argument:

The only argument that the health insurance company could muster is that my client suffered from pre-existing neck injuries that she sustained before the car accident that was the subject of the arbitration. They argued that my client, who received $150,000 (two policy limit settlements), had been made whole because my client had only suffered a "mere exacerbation" of her prior injuries. Consequently, the health insurance company claimed that it was entitled to subrogation because the bulk of what was being paid to my client for her injuries was "unjust".

3) The Knockout Punch:

Because attorneys that represent health insurance companies are almost all "one-trick ponies" I was more than ready to handle this argument. Right after the insurance company's attorney began to smear my client and deemphasize her serious injuries, I jumped in and destroyed their entire argument with three carefully crafted questions.

Question #1: "How much of the medical billing paid here is your insurance company client wanting to be paid back?

Answer: "Well, all of it."

Question #2: "So the health insurance company believes that EVERYTHING they spent on Mrs.____'s care should justifiably be paid back from this settlement?"

Answer: "Of course."

Question #3: "And that's because the health insurance company believes that if not for this accident, my client would NOT have required ANY of this care, treatment, or surgery, right?

Answer: "Correct."

RIGHT THEN AND THERE THEIR ARGUMENT WAS DESTROYED!

At this point, all of the health insurance company's arguments, that my client was not entitled to the settlement because her supposed pre-existing injuries were only exacerbated by the accident, fell apart. Their argument fell apart when the insurance company revealed that they wanted to be repaid for all of the money that they paid because they maintained that the crash caused ALL of my client's injuries. Their argument would have only made sense if they had requested a fraction of the medical bills to be paid back. Nonetheless, the health insurance company was greedy and followed the old adage that "pigs get fat and hogs get slaughtered."

CONCLUSION:

With the "Make Whole" statute now in place in Colorado, health insurance companies are going to be man-handled and decimated in arbitration after arbitration unless there are extraordinary factual circumstances or the health insurance company generously concedes to receive a fraction of the amount that it paid for an injured victim's care. Optimistically, the health insurance companies will learn from their consistent defeats and stop asserting that they are entitled to any subrogation rights in Colorado.

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At ANDERSON, HEMMAT & LEVINE, we believe that the Make Whole statute is an important change in the law that can have a significant and positive impact on an injured victim's recovery. If you have questions about how this change in the law can be used to benefit you, please call and speak to one of our attorneys today.

DON'T BE AFRAID OF BEING CAUGHT ON SURVEILLANCE: Just Be Smart - And Don't Be A Faker!

Chad Hemmat — Sat, 01 Oct 2011 03:37:00 GMT

A private investigator conducting surveillance is usually a sign of a desperate insurance adjuster who has no other angle of attacking your otherwise legitimate right to compensation.

I want to make it very clear that 99.999% of my past and current clients suffered or continue to suffer from real injuries that they sustained from accidents caused by negligent and reckless individuals. However, in extremely rare cases, perhaps a dozen out of the tens of thousands of legitimately injured clients that I have represented, we have had clients, who unknown to us, have claimed to be injured, only to be exposed as liars and fakers through surveillance footage.

While there are notable exceptions, most video surveillance of my clients has been either helpful in proving my point or has proved little to nothing. As scary as it may sound to my clients that they are under surveillance, I can only think of a small handful of occasions where the surveillance was particularly damaging to the outcome of a case.

It is these rare cases that this article will focus on. By sharing these rare cases where our previous clients have been exposed as faking an injury on surveillance footage, I am not condoning, supporting, or conspiring with these "fakers" in any way. At Anderson, Hemmat & Levine, we help legitimately injured clients and we would prefer that fakers not bog down the system by bringing false injury claims and take their business elsewhere.

A) Frequency of Surveillance Usage:

Generally, surveillance seems to be on the rise in workers' compensation claims. I would estimate that surveillance is being utilized upwards of 30% of the time in worker's compensation cases. However, in auto accident injury claims, we see surveillance as little as 3-5% of the time.

B) What Surveillance Footage Generally Shows:

Normally, surveillance does not result in the kind of "gotcha" moments that you might see on television programs. Surveillance usually takes the form of a private investigator stationed in a van that is conspicuously parked down the street from a client's house. Usually, the private investigator has a large outdated camera that he will point at the subject client's front door. So, there is nothing meaningful that is going to come out of this type of surveillance unless a client decides to re-sod his front lawn (yes, I had a client who did that).

I also had a client who, in the dead of winter, ran out of his front door every morning in his tighty-whities to collect his newspaper. While embarrassing to the client, this surveillance footage was not harmful to his case.

Other common surveillance tactics that private investigators utilize occur when the private investigator follows a client on his daily errands. We see lots of meaningless video of clients going in and out of grocery stores. Occasionally, we get video of a client carrying a bag or two of groceries. On one occasion, we had a client who claimed that he had a back injury and surveillance footage caught him carrying several 2-liter bottles of soda under each arm up the stairs to his apartment. While this client was a very large man, his herculean task of carrying 16 bottles of soda at one time was not defendable, and Costco's super-sale probably cost this man his case.

On rare occasions, private investigators might have gadgets such as miniature "covert" cameras that will allow them to follow a client around in a store. Our clients shopping at hardware stores tend to be the most difficult for us to defend. Conventional wisdom holds that people with truly injured backs don't lift heavy plywood or ten gallon buckets of roofing tar. Nonetheless, private investigators, more than once, have caught our clients lifting or carrying one or both of these types of items.

C) Where You Won't See Surveillance:

You will never have investigators inside your house, bedroom, or bathroom because private investigators are subject to criminal laws. As a result, insurance companies will never be able to challenge such things like whether or not clients are doing their home exercises on a daily basis.

Please understand these investigators are not the CIA elite or the A-Team. They are generally low-paid security guard types who are handed scant information and told to sit outside a house and follow the occupants. Their equipment is not cutting edge and neither are they. Basically, I submit that unless you are really unlucky or living a lie, these folks are going to document little or nothing out of the ordinary, and certainly nothing worth mentioning at trial. So relax!

D) Special Circumstances - When you Should Expect Surveillance:

Whenever the insurance company is aware that you are going to be at a deposition for your case, or if they send you for a paid medical examination with a doctor of their choosing, you should expect surveillance. I'm fond of advising clients that on those days, from the moment they wake up untill the moment they return to their houses at the end of the day, they should assume that all their activities will be videotaped.

Unfortunately, despite my warnings to clients, I recall having one client who, on the day of an appointment with an insurance doctor, walked to his car from his front door without the aid of a walker or walking stick, and drove to the doctor's office. Once he got to the doctor's office, he struggled to assemble a walker in the parking lot that had not yet been assembled and that had obviously gone unused. If that's not bad enough, after assembling the walker, he ambled halfway across the parking lot before returning to his car to grab his previously unused neck collar, and slipped it on. Well, I recall showing my client this surveillance footage some weeks later and surprisingly, this client did not see a problem with what he had done. Not surprisingly, he was not my client after that meeting.

I have also had a client leave a doctor examination and proceed to break into a runner's sprint to his car. Also, I had a client who went skiing at A-basin right after she left a medical examination. This surveillance footage was not good for her case. Again, out of the thousands of straight shooters that I have represented, it is the dozen or so fakers whose stories make this article interesting.

E) Other Bone headed Things Caught On Surveillance:

The main message in this article is to be yourself. If you are really hurt, you have nothing to fear from an insurance company's personal investigator and his camera. But, for those of you living a lie, or perhaps not quite being what you claim, you should look elsewhere besides my firm for representation, and you should WATCH OUT! The following is a basic laundry list of other things that my former clients have been caught doing on surveillance:

** Performing shade tree mechanic work on their vehicles

** Launching a boat

** Throwing a Frisbee in the park with a dog

** Running, hiking, and fishing

** Climbing ladders to do roof repair

And my personal favorite of all time….. I once had a client who was unlucky enough to be caught in the act of shoplifting on video by an insurance investigator while her injury insurance claim was pending. Crime doesn't pay, and it certainly won't boost your credibility with an insurance adjuster!

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At ANDERSON, HEMMAT & LEVINE, we work hard to represent honest clients with real injuries. Although insurance companies may resort to desperate measures such as video surveillance to defeat your legitimate claim, our clients have nothing to fear from such tactics. Accordingly, if you have been injured as a result of someone else's negligence, please call and speak with one of our attorneys today.

THERE'S NO SUCH THING AS AN "ACT OF GOD" CAR CRASH!

Chad Hemmat — Sat, 24 Sep 2011 17:50:00 GMT

This is not a religious opinion, but a legal one. The fact is that insurance companies blame God for a bunch of events that, in reality, are actually manmade.

Generally, insurance companies have to pay for claims when their insureds are involved in accidents that cause injuries or property damage. Lawyers call this sort of conduct "acts of negligence." Nonetheless, insurance companies write into most policies that they DON'T have to pay for injuries or damages that their insureds cause either due to intentional acts, like road-rage, or ACTS OF GOD. Acts of God are unavoidable events of nature that are also referred to as a force majeure, which is French for "superior force." This is the notion that parties to a contract are freed from their mutual obligations when something major happens beyond anyone's control.

The classic act of God exclusion in insurance claims applies to damages caused by such events as earthquakes or falling meteorites. As victims of Hurricane Katrina discovered, unless they had a special provision in their policies to cover "flood damage," their losses were uninsured. Curiously, folks in the low lying South seem not to be offered this coverage by their insurance companies, but insurance companies are more than happy to sell this to me when I live 5,000 feet above sea level. In the case of Katrina, the insurance companies chose to ignore any wind damage (which was generally covered) and called everything an "act of god" and denied, and therefore avoided paying, hundreds millions of dollars worth of claims.

In our practice, which consists primarily of motor vehicle injury accidents, we also see our fair-share of bogus claim denials based on unexplained acts of God.

Insurance companies don't always express their denials in the form of divine intervention, and often don't use the G word at all. Specifically, the insurance company will deny your claim if they can demonstrate that the accident caused by their insured was an unavoidable, unpreventable force majeure.

I have been a trial lawyer for 20 years and I have devoted an entire career to representing injured victims in motor vehicle collision cases. Consequently, I have seen every imaginable and not so imaginative form of claim denial by nearly every insurance company in existence. Please understand that I speak from an extensive level of experience when I tell you I have never seen a legitimate "act of God" denial in a motor vehicle collision. That is to say, I have always been able to beat the insurance company and their at-fault insured every time they try to justify a crash by the terms "unavoidable," "unpreventable," or as an "act of god." In fact, I'm comfortable saying: show me a motor vehicle crash that THEY say is unavoidable or an act of God, and I will show you not only negligence, but either gross negligence, or a driver who can be proven in court to be a total and complete liar- and probably both. And yes, when you prove either gross negligence or that the driver is a liar, the insurance company is forced to pay, and at that point, they pay a lot.

There are three classic "unavoidable crash" scenarios used by insurance companies that this article will explore. Each classic scenario has hundreds of derivations, but for brevity, I will stick to the garden-variety bogus denials, and I will show you how we defeat them.

A. Spontaneous Brake Failure

Every year, clients walk in my door after an insurance company for an at-fault driver denies their claim for a clear liability rear end crash into my innocent clients because they believe that the accident was caused by "spontaneous brake failure." I submit that although spontaneous brake failures often occur in James Bond movies, they never happen in Colorado.

When an insurance company denies a claim based on spontaneous brake failure, we file paperwork to legally obtain temporary possession of the vehicle so that the brakes can be inspected by a mechanic. Predictably, every alleged spontaneous brake failure turns out to be nothing short of gross neglect on the part of the vehicle owner. Our mechanic always finds worn out brake pad, malfunctioning brake calipers, or other defects that can be avoided by regular brake maintenance. By the time we are done listing the long-standing, outrageous nature of poor maintenance history and neglect by the at-fault insured, the insurance company that started out refusing to pay anything is begging us to take their full policy limits.

There is nothing godly about neglecting the proper maintenance of a vehicle, and certainly nothing spontaneous about the failure of worn down brake pads.

B. Driver's Sudden Blackout

Another classic excuse that insurance companies use to avoid paying on clear cut negligence by their insured's is that they are not liable because the accident was caused when their insured's "sudden black out" while driving a vehicle.

These types of claims take two forms. First, when we further investigate these bogus "blackout" claims, they turn out to be mostly manufactured excuses created by insurance lawyers. We learn the truth about these bogus claims when we explore the traffic accident report and note that the at-fault driver initially made no mention of blacking out to the investigating offers. After that, we review the at-fault driver's medical records to determine how many visits after the crash it took before the driver mentioned the "sudden blackout." Not surprisingly, the first mention of fainting or blacking out by the at-fault driver almost always coincides with or comes after the first visit with the insurance company's attorney. In fact, there is one particular attorney in town that has represented nearly all of the insureds that I have come up against that have claimed syncopal episodes (sudden "unexplained" fainting behind the wheel). I can't say for sure, but since each syncopal episode defense alleged by this attorney has turned out to be bogus, and since this lawyer continues year in and year out to argue that the true cause of his clients' crashes are caused by black outs, I'm assuming this defense must be effective against someone. However, it hasn't been effective against me.

The second type of "sudden unforeseen blackouts" that we encounter are actually the result of total recklessness on the part of the at-fault driver. These blackouts (that actually get reported on the scene as blackouts) are always, in my experience, cases where epileptics, heart patients, or diabetics failed to take their prescribed medication. Again, there is nothing godly about risking the lives of everyone on the roadway because you chose to go off your medication and drive. This sort of neglect is easily provable by looking at the at-fault driver's medical records. In my experience, once we expose that the at-fault driver caused the accident by failing to take medication, the insurance company will pay to make the case go away

C. The Actions of a Mystery Vehicle Resulted in an Extreme Reaction by the At-Fault Driver

The third classic excuse that insurance companies use occurs when an at-fault driver claims that some mystery vehicle (almost always a "yellow van") did something outrageous on the roadway that left the at-fault driver with no choice but to rear end my client's car. This defense also takes two bogus forms: 1) acts not reported to the police at the scene and manufactured later, and 2) acts reported at the scene.

In some cases, an at-fault driver will report weeks after an accident that there was a mystery vehicle that REALLY caused the crash and then fled from the scene. However, for some reason, the driver did not mention the mystery vehicle to the police during their investigation of the crash. This defense always results in a fun deposition of the lying at-fault driver. After we finish with the deposition of the lying driver, we depose the police officer who investigated the accident. Police officers are well trained and adept at investigating motor vehicle accidents to determine which driver was at-fault. If a mystery vehicle was the TRUE cause of a crash, police officers will accurately include that information in their reports. If an at-fault driver claims that a mystery vehicle caused an accident, and there is no mention of a mystery vehicle in the accident report, the insurance company will realize that their insured is a liar. This realization forces insurance companies to roll over and pay on these types of claims all the time. There is certainly nothing godly about lying.

On those occasions where the driver reports the conduct of a mystery vehicle at the scene of the accident, the driver's story does not usually hold up when we scrutinize and examine their story in a deposition. However, on the extremely rare occasion, which I don't personally recall ever happening, where the at-fault driver's story about a mystery vehicle holds up, we can use the at-fault driver's story to submit a claim to our client's own uninsured motorist insurance. Either way, our injured clients will recover damages for the injuries that they sustained in motor vehicle accident.

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At ANDERSON, HEMMAT & LEVINE, we know that car accidents are caused by negligent and reckless drivers, not by unavoidable acts of God. Our attorneys have the experience and knowledge to defeat bogus excuses such as blackouts, failed brakes, and mystery vehicles. If an insurance company is telling you that your claim is being denied because an accident was unpreventable, please call and speak with one of our attorneys today.

INSURANCE COMPANY DOCTORS: What they say and how we beat them

Chad Hemmat — Sat, 10 Sep 2011 00:11:00 GMT

We previously wrote an article on how you, as an injury victim, should approach your required visit with the insurance company doctor. Different than that article, this article assumes that your exam has already occurred. Furthermore, we are now assuming that the report has come back and the doctor, as they often do, wrote a report that is a total smear job. So now what?

There are really only two approaches for your lawyer in handling this challenge--"fight or flight." The view that often seems to be popular is to ignore it (flight), pretend the doctor's dangerous report doesn't exist, and assume that the effects of the report will be minimal if ignored long enough. We feel this is sort of like ignoring the 800 pound gorilla in the room.

This article will not spend any time discussing the "flight" approach, largely because we don't agree with this approach so often taken by our colleagues. To the contrary, this article will detail our approach: the "Fight" approach.

A) THE "FIGHT" APPROACH:

Pursuant to Colorado Rule of Procedure 35, the insurance company is allowed to lodge negative, unfounded, and unscientific conclusions into the mix of your medical records. But this does not mean we are completely helpless.

If left unchecked, these doctor reports will cost you many thousands of dollars in settlement money, and if trial occurs, rest assured these doctors will come in spewing this nonsense as science. Furthermore, these records become part of a patient's medical records for the rest of her life. So, while many of our colleagues might respectfully disagree, we view ourselves as having no greater responsibility than to aggressively attack these doctors, their questionable credentials, and certainly take every opportunity to attempt to neutralize these dangerous, baseless reports.

B) WHAT THEY SAY:

In my 20 years of serving injured victims, I have reviewed more than a thousand of these paid insurance medical reports. I have found that each insurance company doctor's approach to smearing a patient makes them very vulnerable to attack. Their opinions are usually founded upon no science whatsoever. If a lawyer takes a good deposition and follows up with well-supported pre-trial motions, these smear reports can usually be controlled and, if nothing else, greatly minimized.

The approaches used by these doctors take the form of 3 types of insurance industry-supported conclusions they attempt to pass off as science:

1) The crash would be too insignificant to cause these sorts of injuries: "You're a Faker"

This is usually an opinion based on the doctor being given a selective framework of medical records and perhaps a photograph or two of a car bumper with little or no damage on it.

From these two sources, the doctor spins a tale that basically no one, and certainly you included, could have been physically injured in such a minor impact. This sort of smear, while very persuasive to a jury if ignored, will almost always fail if handled by your lawyer correctly.

a) How we beat them:

Medical doctors, particularly the ones hired by the insurance company, are almost never properly qualified to render opinions about the forces on a vehicle and what is or isn't sufficient force to cause injury.

In fact, there is no recognized "injury force threshold" agreed upon by the actual qualified experts. The experts say that there are just too many variables. So really, no one can look at a crash and say, this amount of vehicle damage COULD NOT cause an injury. Certainly, even if such an expert could be qualified by training, education and experience to make such a conclusion, certainly, THIS doctor isn't so qualified and certainly could not offer such an opinion based solely on medical records and a couple of photos of a bumper.

In my experience, this sort of opinion dies in the deposition ... and it's usually more of a suicide. The doctor himself will nearly always admit that he is not qualified to make such opinions, lacks the engineering qualifications, and lacks sufficient information to rule out injury from such a crash, regardless of the report he wrote.

But, if they stay headstrong during the deposition, a series of questions like the following usually "turns out the lights:"

Q: Do you ever diagnose patients solely by looking at photographs of them?

A: No.

Q: But, you spent 8 years in training doing nothing but studying the human body, right?

A: Yes.

Q: You then did a 2 year internship and a 2 year residency, correct?

A: Yes.

Q: With 12 years of focused training, you never became so proficient at the human body to be able to look at a photograph and conclude the extent of injuries to your patient?

A: It's just not done that way.

Q: It's not done that way because as a man of science you know that there are way too many variables about human injury, that a photo won't help you address, correct?

A: Correct.

Q: How much training have you undergone as an auto body mechanic?

A: None.

Q: Have you ever required your patients to show you their car for you to examine, in order for you to rule out injury to your patient?

A: No.

Q: And you don't do that for the same reason, right? Looking at their car isn't going to help you diagnose or treat your patient?

A: It has no clinical significance what the car looks like.

Q: We won't ever find you walking into an examination room and saying to your patient, "I really can't know what's wrong with you until you drive your wrecked car over here and let me take a look?"

A: Of course not.

I win! Even if this doctor gets on the stand and tells the jury why looking at the photos helped him conclude no injury here (big IF, because odds are his conclusions will be stricken for lack of qualification), there won't be a jury anywhere who will find his opinion credible after we go through the doctor's answers to my above questions.

2) The injury IS real--it's just unrelated THIS crash: "You're too stupid to know where your injury came from"

Yes, there was a crash. Yes, the crash adequately distorted metal, broke seats, and bent the steering column. And, yes, the patient is suffering the symptoms that can be caused by a trauma, such as a car crash. But the patient's injuries were not caused by the crash. This doctor says the injury stems from a preexisting condition, or an interviewing superseding event, or perhaps a dormant condition, that coincidentally became known to the patient after the crash, but entirely unrelated to the crash. This line of argument is very common among insurance doctors trying to dissuade a jury.

a) How we beat them:

These reports are fun, because when the deposition occurs the doctor usually comes out looking down right silly, and completely "bought and paid for."

This deposition goes partly like this:

Q: Doctor, you don't dispute that the impact of the crash was sizable?

A: Correct.

Q: And you don't dispute that my client didn't complain to a sole about any back problems until after the crash?

A: Correct.

Q: And, you agree that after the crash my client was put on a backboard, and taken to the hospital?

A: Correct.

Q: And, you agree that since that day, my client has suffered with back-related symptoms?

A: Yes.

Q: But the confluence of the back complaints and significant crash you concluded was just a coincidence?

A: Correct.

I win! When the irony of this sort of opinion is fully developed through the deposition, no jury ever finds much in the way of any credibility for this doctor's "it's a coincidence" opinion.

3) The patient had a dormant condition for a long time before the crash, but it didn't manifest itself until after the crash, but it is MOSTLY caused by this patient's inability to properly cope with life-events: "You're crazy, but at least your craziness was caused by the impact, but mostly ... you're just crazy."

This is the insurance company doctor's favorite type of opinion, because if left unchecked, it allows them to dig deep into any patients psyche, and even if not qualified, allows them to play psychiatrist and make a patient look like they are just crazy.

Doctors think this sort of opinion is the easiest for them to sell to juries. However, if handled correctly this sort of testimony can likely be stricken because it conflicts with a particular rule of law that judges are required to follow and advise jurors of.

a) How we beat them:

With a good set of questions and answers from this sort of doctor, we will nicely be able to seek an early order from the court striking the doctor's entire opinion as violating the "Thin Skull Doctrine."

Every juror is told as part of their jury instructions, that an injured person is entitled to full recovery even if they were, through their medical history or even just their DNA, predisposed to greater injury than might be expected from this magnitude of trauma. In law school we learn that "you take your victim as you find them," even if they might have an unusually "thin skull." Such a person is still entitled to full recovery if a negligent act caused their "skull," albeit thin, to crack in a way that no other skull might crack.

Doctors don't know the law and are rarely prepared properly for questions, including:

Q: Doctor, you agree that what brought on my client's symptoms, was in fact this crash?

A: Yes.

Q: You trace back all of the complaints my client had to the emergency room one hour after the crash, correct?

A: Yes.

Q: No place in your report do you conclude that my client would have developed any of these symptoms, at that time, except for the happening for this crash, correct?

A: Correct, I said nothing about that in my report.

Q: Because, the fact is, you don't know if my client, except for the happening of this accident, would have ever manifested symptoms the likes of which she presently has.

A: Correct, I couldn't say one way or another.

Q: You are here to say, that in your review of my client's history, psychological and otherwise, that you view my client to have a very escalated presentation of pain and injury complaints arising from this crash?

A: Yes, we normally see a much lesser degree of symptoms and for a much lesser extent of time post-crash, than how your client has reacted to this crash.

Q: You don't dispute that these symptoms are real to her?

A: They are real to her.

Q: She just has an exaggerated way of coping with these injuries that take her way out of the norm of how your average patients react to this level of traumatically-induced injury.

A: Yes, we call it multi-factorial. She has a certain type of psychological profile: neglectful parents growing up, two early in her life divorces, a general low pain tolerance, which coupled with this moderate collision has resulted in her simply having a very pronounced, very exaggerated reaction to what would have been merely a small bump in the road. To her it has had a profound physical, emotion, and psychological reaction.

Q: But, you found it was this car crash, albeit moderate in it's force, that set off this profound reaction, correct?

A: Correct.

I win! This is the perfect recipe for striking the doctor's opinion from ever being heard by the jury. The doctor is using fancy words to simply say, "the crash caused her more injury than it would cause a normal person to have." Well, that is entirely contradictory to the law that tells the jury not to concern themselves with a "normal person's" extent of injury. The are ONLY to focus on this particular person's injuries.

A motion will be filed after such a deposition and I expect a smart judge will strike the crux of this doctor's damaging and yet baseless conclusions.

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At Anderson, Hemmat & Levine, we believe it is important to face your dragons. That is why we do not cower away from bought and paid for insurance company doctors who attempt to solicit junk science to the jury. I have found that this battle is best fought early on in the case and out of the sight of a jury. If you are being told that an insurance company doctor is making any of the above arguments, please call today and speak to one of our attorneys who are happy to discuss your claim with you.