Recent Blog Posts in February 2009

Victims injured in motor vehicle collisions often have either no insurance to cover medical care whatsoever or several different kinds of insurance. People that are lucky enough to have health insurance often ask me if they should use their health insurance to pay for medical care related to an auto accident or whether they should use MED-PAY coverage that they have on their auto policy. There is general confusion in the medical/legal community about this topic. In this blog, I want to dispel some of the common confusion about these issues and also detail advantages and disadvantages of each option. There are some issues in the law that breed debate, and multiple viewpoints can often be correct. The views expressed here are generally regarded as the majority viewpoint of attorneys representing injury victims.

HEALTH INSURANCE:

Advantage: In the case of an auto accident, health insurance will pay for your treatment. They will not pay bills at full price. They pay bills at an agreed upon rate with the health care provider. At the same time, in these situations, the doctor's office cannot charge you the balance of what the health insurance does not pay, other than co-pays and deductibles.

Disadvantage: When settlement occurs, it is important to know that the health insurance company will nearly always seek reimbursement for medical expenses that they have paid. This right to be repaid is called subrogation. If you fail to pay back the health insurance in this situation, they can take action to suspend your insurance coverage and can even sue you. Please note that these insurance companies are often quite negotiable on the amount they are willing to take back in subrogation.

MED-PAY:

In a recent blog, I detail changes related to Colorado's new law requiring mandatory MED-PAY on all auto insurance policies. By way of review,  starting in 2009, under Colorado's new mandatory MED-PAY statute, there is a minimum five thousand dollars ($5,000.00) of automatic MED-PAY sold as part of every insurance policy and renewal. The only way a policy will not have at least the minimum coverage ($5,000.00) is if it is waived in writing by the policyholder. Most, if not all insurance companies will offer optional additional MED-PAY coverage, such as ten thousand ($10,000.00) or even twenty five thousand dollars ($25,000.00). For the first 30 days after notice to the insurance company of an auto accident, five thousand dollars ($5,000.00) of med-pay must be held by the insurance company to pay any hospitals or ambulance companies who might present a bill. After 30 days, the money frees up and can be used to pay any injury related medical bill.

Advantage: It pays any medical bills related to any auto accident related injuries. Also, as of the time your policy renews in 2009, there is no repayment requirement. This means that whatever care is paid by this source DOES NOT have to be paid back when you reach a settlement or jury verdict.

Disadvantage: These coverage limits are generally small. There is usually no more than $5,000-$10,000 of coverage. That amount of money will pay the emergency room, the ambulance and little else. Even at the higher limits coverage of $25,000, any major surgery or long term care will quickly exhaust these limits.

MEDICAL LIENS:

If you are uninsured and in need of medical care, there are several private programs that will direct you to qualified physicians and therapists. At the time of settlement or jury verdict, the medical lien company will seek reimbursement from your settlement proceeds.

Advantage: Care is provided without any money paid by you up front. It provides an avenue of care for uninsured persons who might otherwise go without much needed care.

Disadvantage: The payback terms can be exorbitant. Because these companies are assuming a risk that the case might not result in settlement, they charge huge mark-ups on the care. An outpatient knee surgery, which normally may cost $5,000, may end up costing you $40,000. There is usually some negotiation with these companies at the end of the case. However, an uninsured person will need to settle their case for as much as 3 or 4 times the value of an insured person's case to net equal amounts of money after everything is paid back.

RIGHT APPROACH:

Let's start with the answer: Yes, when hurt in an accident, you should always use your health insurance and insist that all doctors, clinics and therapists send their medical billing to your health insurance as your primary coverage. If you also have MED-PAY, you should treat it as a secondary insurer to reimburse your co-pays and deductibles. We recommend that you or your attorney send a letter to your MED-PAY insurer early in the case telling them that you want to be consulted and be permitted to authorize specific payments under this coverage. The worry is that without you informing your insurance company that you want to maintain control over the disbursement of these proceeds, your insurance company might simply send money on any occasion when a health care provider sends them an invoice. Since this is coverage you are paying a premium to have, we feel it is your property and you have a right to control its use, if not entirely, at least after the first thirty days when the hospital and ambulance reserve-time expires. Attorney's call this process of analysing and best using multiple insurance coverages for the benefit of their clients, BENEFITS COORDINATION. Any attorney you hire for your injury accident should be willing and in fact eager to do that for you.

WRONG APPROACH #1:

Some doctor's offices will try and convince accident victims to use all their MED-PAY coverage through their auto insurance first, and only after the policy limits are depleted, utilize health insurance. This is the wrong approach. Doctor's offices prefer to send their billing to MED-PAY because the auto insurer will simply pay the bill until the coverage is depleted. That is an important consideration because health insurance will take a bill and ratchet down payment, called "re-pricing," often substantially, from what the doctor's office has billed. With health insurance the doctor cannot bill the client for the balance. Thus, the motivation for the doctor is evident. For the injury victim, once the MED-PAY is exhausted, the patient will be paying out-of-pocket co-pays and deductibles. That can be unjustifiably expensive.

WRONG APPROACH #2:

Some doctor's offices will encourage patients with insurance not use their insurance at all and instead simply sign a lien agreement, entitling the doctor to be paid out of the settlement proceeds at the end of the case. This can be great for the doctor in that his elevated bills will not be re-priced by the health insurance company. However, the patient is going to have to payback substantially more at the end of the case to the clinic on lien than they would ever pay back to an insurance company in subrogation. Basically, this option is great for the doctor-bad for you.

CAVEAT:

Please note that doctors that take cases and wait to be paid back are rare and are doing the work of angels. This blog should in no way reflect poorly on doctors who are compassionate enough to treat a person today and perhaps wait years to get paid. There are, however, some misguided professionals in every profession (attorneys as well). The overwhleming majority of physicians and chiropractors and physical therapists who take liens are doing it appropriately as a last resort motivated to assist uninsured injured persons, and should be afforded the respect and admiration of the entire medical, insurance and legal community.

CONCLUSION:

At the end of the case, it is not the settlement amount that matters. The only really important focus should be what the client gets to keep. At Anderson, Hemmat & Levine, we always strive to remember how important it is that our client end up with as much as possible in her hand. Consider calling us and setting up a consultation if you have any questions about anything related to this or any topic covered in our blog. Our attorneys would be happy to go through all of these issues with you on a one-on-one basis, and we never charge you for that first consultation.

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A loved one dies in an accident that was not their fault. As the heir of your loved one, you hire a lawyer to represent you.  This type of action is called a wrongful death claim.  In Colorado, this is a very specific claim that few (including most lawyers) completely understand. Because of this confusion, it is also very common that attorneys who do not frequently represent people in such actions commit malpractice, which could cost you plenty. I have seen it in my colleagues over and over again. I am writing this blog to expose the problem but also to help educate my fellow attorneys in the hopes of lessening the future mishandling of these claims.

THE LAW OF WRONGFUL DEATH:

1) Who can bring the claim?

We have covered this topic at length in prior blogs. In a nutshell, when a person dies, there is only one class of survivor who can bring a claim for wrongful death. This class of person is called a lineal heir. For example, a deceased wife's husband is a lineal heir and is entitled to bring the action. If a person dies without a spouse, the person's children (if any) are the lineal heirs.  If a person dies without a spouse or children, the deceased person's parents are the lineal heirs.

2) What can they bring a claim for?

While it may seem minimal, the Colorado legislature has limited these actions to include THE HEIR'S losses that resulted from the death of the person. The heir's grief, economic losses, and emotional suffering arising out of the loss of the deceased are the recoverable damages.  That is it. While these damages and recoveries can be quite substantial, they cannot include hospital or medical bills that the deceased incurred prior to death. 

THE PROBLEM:

Lawyers are regularly settling these cases on behalf of lineal heirs and signing agreements on behalf of these heirs which identify the lineal heir as the "personal representative of the estate of" the deceased. It seems harmless, doesn't it?  To the contrary, it is quite literally the difference between being the "lineal heir of John Smith" versus being the "Personal Representative of the Estate of John Smith."  As in many areas of law, the wording can make all the difference.  This may seems like semantics, but the difference between whether a person brings a claim as a "lineal heir" as opposed to "the personal representative of the deceased's estate" can determine whether the heir is sued for fraud as well as the complete value of the hospital and medical charges.  This pitfall is completely preventable with experience and proper legal training.

How often does this happen?

For years, I have received settlement documents containing language attempting to confer "personal representative" status to my clients. I have even received checks written to my client trying to misrepresent them as a personal representative. We have made the insurance company change that language every time. I have also seen the releases signed by heirs represented by other firms where the attorney did not require that language be changed. Was it an accident by the insurance company that such language was added to release agreements?  In actuality, it was likely intentional. Insurance company officials have confided in me that they regularly try to pass this language off on inexperienced or unsophisticated attorneys, as well as people who represent themselves.

Attorneys who fail to acknowledge and correct this change in the settlement paperwork have no business representing anyone in a wrongful death claim 

There are few cases with more pitfalls and long term consequences for a client than a wrongful death settlement. These matters require experienced attorneys and attention to detail.

At Anderson, Hemmat & Levine we are happy to review any release agreement. Remember, we always offer a free initial consultation.

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In an earlier blog, I detailed the importance of the first call to the law firm. Assuming a series of successful first calls, you should now have two or more firms that still interest you. The next step is to visit prospective firms. When you do that, I suggest you create a mental checklist for the experience.

Visiting law firms is a critical part of the selection process. The expression "seeing is believing" has no greater meaning than when it comes to your visit to a law firm. Everything in this process has a meaning. When you see these various law offices and meet law firm personnel, these are the same experiences that the insurance adjusters, their lawyers, and other clients are seeing. An attorney's presentation affects which attorneys are tested by the insurance companies with trials verses which attorneys are offered good settlement offers. The office and the staff also help establish the attorney's reputation for success. I suggest that as you attempt to figure out which firm is the right fit, you should create a mental checklist to gauge those experiences. A checklist can be an invaluable tool in choosing the right firm.

There are rarely diamonds in the rough when it comes to the correlation between the presentation of the office and the lawyer in charge. As a rule, the appearance of the attorney's office reflects the quality of the attorney. In fact, you should consider everything you see (good or bad) to be a reflection of the lawyer you are considering hiring.

APPEARANCE OF THE OFFICE:

A law firm that is unkempt or messy suggests a lack of attention to detail on the part of the attorney. A law firm that looks like they just moved into their office, with a paper sign and things still in boxes, projects a lack of consistency or establishment. Cheap furniture and minimal décor reflect an attorney who is not going to spend what he should on experts and reports to maximize client recovery, nor will he go all the way to trial. Trials are expensive and cannot be done "on the cheap." This type of attorney is going to invariably sell your case short. A clean, well-organized, appropriately arranged office projects that the attorney has that same attention to detail in his legal work.

STAFF:

Angry, or even bickering staff, means a law firm in disarray. Any unprofessional outburst during your visit suggests poor management. Seeing staff members walking around projecting dissatisfaction or outright hostility towards other staff or clients is a sure sign of deep-seated fundamental problems in the survivability of the firm. Staff with poor hygiene, wearing shorts or jeans, joking and laughing, and a general lack of office decorum projects a general lack of professionalism that you can assume goes all the way to the top. Does the receptionist greet you warmly? Are you promptly given intake paperwork to fill out? Do they give you a pen and a clipboard? Do they seem to know what to do with you after the intake paperwork is completed? Do they move you into the conference room promptly for your meeting? And of course, does the attorney start that meeting without making you wait too long? Every one of these items should be on your mental checklist when considering the retention of your new attorney.

NON-STAFF IN THE OFFICE:

When you enter the office, look for what appears to be a healthy mixture of opposing party's attorneys, current clients, court reporters and other activities that reflect that the firm is in the midst of litigating cases. You do not want your new law firm to be just a settlement mill, where they simply warehouse and settle cases without any real attorney activities occurring. But pay attention to any other unfolding dramas. For example, nothing is more telling as you walk into the office than to see an angry current client screaming at the receptionist. How are current clients being treated by the staff? When people call, are they getting to talk to the attorneys in the office? Or are you hearing the receptionist give a series of explanations to various callers as to the unavailability of the attorneys? Listen to how often the callers are being offered voice mail. Voice mail is useful. But you want a professional relationship with an attorney, not his voice mail. Are there private client matters being discussed openly among the staff? Settlement paperwork being signed in the reception area is a big "no-no." Client matters must always be kept confidential even when it comes to settlement paperwork. Do the firm members have smiles or frowns on their faces? An unhappy law firm makes for unhappy clients. All of these experiences, both sights and sounds, need to be placed on your mental checklist.

PERSONALITIES:

If you finish your meeting and think to yourself, "this firm seems like a decent firm, but I know that lawyer (receptionist, paralegal, whomever) and I are going to come to blows," do not hire that attorney. In fact, a first meeting is like a first date. If, despite putting their best face forward, you still hate the personality of the receptionist, the lawyer is rude, or the staff seems unprofessional, do not hire that firm. Remember, the first impression is important. You are not going to like these people more in your second or third encounter. In fact, you will invariably like them less in these subsequent meetings. So cut your losses and keep looking for a better fit. Keep setting meetings with law firms until you find one where the experience was completely satisfying. You are entitled to be completely satisfied with location, parking, and the personalities of the office staff. All of these things need to be right for you before you hire an attorney. There are plenty of attorneys out there. You should resolve not to hire a firm until you feel completely comfortable.

Of course, I wrote this blog because I feel we score pretty high on this checklist and would encourage you to give us a chance to be that perfect (or at least near perfect) fit for you. We always provide a free consultation and we invite you to apply this checklist to your experience with our firm on that first meeting.

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A driver heading straight into an intersection collides with a left-turning vehicle. Police arrive and give the left-turning driver a ticket for taking the right-of-way. You are hurt and leave by ambulance. Your car is totaled. But at least you can take comfort that the insurance company for the at-fault driver will accept responsibility and take care of everything, right? Open and shut case, right? WRONG!!!   Unfortunately, these are some of the most fact-driven, most contentious and generally most difficult cases to prove without impeccable legal work and investigation done early in the process.

Let's talk about proof for a minute. The insurance company for the at-fault driver will not pay for anything out of generosity. They will only pay you IF they feel, in a court of law, you would win. In a court of law, you would need to convince a jury that the weight of the evidence supports the conclusion that the at-fault driver caused the collision. However, if a jury is so conflicted that they are not certain, one way or the other, then the plaintiff (you) loses.    

The problem from a proof standpoint is that people in accidents generally tell wildly different versions of the same story. In this sort of accident, if there are no independent eye witnesses, rarely are these cases winnable. If the driver is making a left turn from a dedicated left turn lane with an arrow, they will simply say their arrow signaled green. If the driver is at a light without an arrow, he can simply say that he was stuck in the intersection when his light went from green to yellow to red. Only after the light turned red did he commence his left turn, right when you ran the red light and caused the accident.  The at-fault drivers are often in contact with the insurance company and even lawyers and often start melding their story from fact to fiction within days of the event. Lastly, even if the police give the left-turning driver a ticket, this is immaterial, because in court this information would be hearsay.  

So what should you do?

First, never assume that police are going to do a complete investigation. Get the names and phone numbers of any witnesses to the accident. If the at fault driver is making statements at the scene that accept responsibility, make sure that witnesses are present to hear it. On most occasions, left-turning drivers mistakenly claim that they turned on yellow, which means they took your right-of-way as an oncoming vehicle also justifiably proceeding on yellow through the intersection. Once they get "lawyered-up" they often change their version of the story to reflect that they commenced their left turn from the middle of the intersection once the light turned red. Getting the driver to commit to the story they are going to tell is very important. Consider asking at the scene that the driver write out a statement for you. Surprisingly, the police do not always get witness names and often neglect, unless prompted, to get the at-fault driver to write out his version of the events. Do your best to coax the police to do a complete investigation if you can.

In conclusion, these cases can be very complex and they require very early intervention, proper scene investigation and most importantly, smart, proactive thinking at the scene. Lastly, never assume that the at-fault driver is going to do the right thing when it comes to owning up to responsibility for causing the crash.

Please remember that at ANDERSON, HEMMAT & LEVINE, we will always talk to you on the telephone about your matter and you can always count on a free consultation.

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Attorneys spend millions of dollars advertising to make the phone ring. But when it does, it is surprising to me how rude, uninformed, rushed and unprofessional law firms can be. I have spent 18 years representing victims of injury accidents. This blog fulfills a longtime promise that I made to many of my clients, past and present, to chronicle some of their worst experiences dealing with other law firms, before they found us.

Here goes:

You call the law firm. The telephone rings, 6-7-8 times before a very rushed, very rude person answers and rattles off a law firm name that is incomprehensible. You start to explain your story – she puts you on hold. She gets back on the line minutes later. Now, it is obvious that she has forgotten who you were. You start again-only to be put on hold, again. She gets back on the phone and tells you that you will NOT get to talk to an attorney, but she will put you through to some secretary or paralegal. Next, you find yourself talking to yet another rude, rushed person. You, at least for the third time during this call, feel like you are bothering them with your case. This person interrupts you, makes you feel insignificant and tells you after a brief exchange that ”someone will get back to you.” You wait an hour- two – three, if you are lucky, and then you get a call. Now, this person is even more rushed, and rude. He identifies himself as an attorney. You ask a question about your situation. He does not answer it directly, but instead says “well, come on in and let’s talk.” You ask what is the deadline for filing your claim? Again, not a direct answer but instead he responds, “so, can we set an appointment?” You ask him how often his firm handles cases like yours? He responds abruptly by saying “so, you are not wanting to set an appointment?”

Does the above sound at all familiar with any recent experiences you might have had with a law firm? I hope not. I am at a loss how these law firms get any clients to come in after such a horrible display.  Yet, my clients tell me about these sorts of experiences with their first call to other firms, all the time.

I am not here to say that we at ANDERSON, HEMMAT & LEVINE are perfect. But, we know that YOU NEVER GET A SECOND CHANCE TO MAKE A FIRST IMPRESSION. 

Furthermore, I can show you a bad law firm with substantially unsatisfied clients, miserable employees and poor management and I never even have to meet the attorneys. Give me 20 minutes on the telephone with their staff. On that alone, I can tell you what is happening with the firm. See, lawyers, like doctors, generally view themselves as above all this “business and customer satisfaction” stuff. After all “we are LAWYERS!!” BUT, THEY ARE ALSO DEAD WRONG. Our firm was the first in Colorado, MAYBE EVEN IN THE COUNTRY, to send out CONFIDENTIAL CUSTOMER SERVICE SURVEYS to our clients. Why do we do this? Because we care about our client’s view of us and want to learn if there is anything else we can do better. Do we even sound like law firm? Well, good I hope we don’t. Simply stated, WE WANT TO BE BETTER THAN YOUR OLD LAW FIRM.

Let me give you an example of how that first telephone call is different at ANDERSON, HEMMAT & LEVINE:    

Our receptionist, who has been with us for more than 6 years, has absolutely no responsibilities in the office other than to answer your calls, listen and try to help. Furthermore, you will never be directed to a secretary or a paralegal during the intake of your case. Attorneys are ALWAYS available to talk to you on your first call to our office, and thereafter. Our attorneys WILL answer your questions straight. Our attorneys are not clock-watchers. They are paid a salary and are not required to bill their time. So, they will not rush you through the call. They will be respectful and polite. Lastly, we are not car salesman and WILL NOT high-pressure you to come see us. 

Make the decision to visit an attorney based on your experience during that first call. Please consider calling us and other law firms. And, of course we always provide you a free consultation.

One last thing, we always want to know how we are doing. If you ever have a problem with an experience at my firm, feel free to give me a call, personally. My cell phone number is 303-912-2223. I think you will find that ANDERSON, HEMMAT & LEVINE is a different experience entirely from other law firms, and you will notice it from the first call.

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