Thursday, August 1, 2013

Lawsuits. More specifically, medical malpractice...

Lawsuits are a necessity.  Someone reading this would probably say "I bet you think that because you are an attorney."  But, that is not at all the case.  Lawsuits are another form of checks and balances.  It keeps individuals and corporations alike in line.  It also keeps lawyers in line.  And, most importantly, it keeps people safe.

Contrary to what corporate funded commercials would have you believe, the filing of frivolous suits is a complete rarity.  A filing of a frivolous suit can subject the lawyer who signed the Complaint to severe penalties.  Simply put, it is not worth the risk- both financial and to the lawyer's reputation.

But more to the point, there should never be a risk because why would a lawyer who swore to uphold ethical considerations ever file a frivolous suit?  (I know, I know, people choose to do wrong things).

Me personally, the risk of being sanctioned for filing a frivolous suit is 0% because I simply do not accept those cases from the beginning.  I tell those callers to take a hike and do not bother calling any other attorney to help you.  I value my reputation in the community and among other lawyers.

(Funny side note- I did have a potential call and say he found a bone in his soda.  He wanted to sue.  I asked if he had any injuries and how he knew a bone had been in his soda.  He told me he could see it through the bottle and it was still in there.  I said, no injuries, no case, see you later.  He called back a day later saying he swallowed a bone while drinking a soda and he was injured.  Wonder what ever happened to that guy).

Which brings me to medical malpractice lawsuits.  These suits get labeled frivolous the most and are often used as an example of why every state needs "tort reform."  (I think I wrote about tort reform in early postings, but I do not need to re-hash things now.  The very idea of tort reform makes me sick and gives me enough material to write about that subject whenever I feel like it).

Why is this so?  Well, doctors and medical care is a huge business in America.  Doctors, pharma companies that sell medicines through doctors and medical centers have a lot at stake, and a lot of money to lobby with for protections from lawsuits.

They are also able to create a lot of "junk science" reports, studies, etc., when they need to create some sort of defense to injured peoples' claims.  (For example, it is clear that brachial plexus injuries (which can leave the arm anywhere from somewhat functional to paralysis) are caused by a physicians force during labor.  So, a study was complied, "Lerner Study," to "show" that a mother's own contraction can be enough force during labor, absent force from a doctor, to cause a brachial plexus injury.  Now, defense doctors use this "study" to defend when a doctor has used to much forced and injured an infant.  Funny enough, while the doctor which the study is based on said baby was delivered without physician force and a brachial plexus injury occurred anyway, doctor's own notes indicate she used force during delivery.  The medical malpractice lawsuit against her settled just before trial).

But this all gets me to something interesting I came across on Medscape.  They conducted a study/poll of 3,480 U.S. physicians across 25 areas of practice on what the experience of being sued for medical malpractice is like.  40% of those surveyed, or 1,392 doctors, had been sued.

Most striking to me was the outcome to the question "Was the lawsuit result fair?"  62% of those doctors sued (835.2 doctors) believed that the lawsuit result was FAIR.  (I presume in my analysis that only doctors who have been sued answered all the survey questions.  The study was not explicitly clear on this, but it would only make sense).  Only 38% thought the result was unfair.

One doctor was quoted as saying that it was "my responsibility.  Parents had to sue to get financial relief for the burden of caring for their infant.  I understood that."

Now, the poll did relate that only 47% of malpractice cases ended with the plaintiff being awarded money compensation, whether through jury or settlement and that 35% of cases settled before trial, with only 2% of cases resulting in a jury awarding money to a plaintiff, but poll does not state what portion of the 62% that said result was fair was an award or settlement for the plaintiff.  However, I would presume that since 37% of the cases resulted in compensation for the plaintiff, that more than half of those doctors who thought it was a fair result had an award or settlement against them.

But for me, the biggest point is that even if a doctor settled or had a jury decide the doctor was negligent, some doctors still accepted that as a fair result.  One doctor went so far as to be quoted that he understood why he was being sued and accepted that.  He may not have agreed with the suit, but he understood why it was occurring and why it was necessary for the plaintiff to bring a lawsuit.

I am happy to see these numbers.  A decision to sue a doctor is never taken lightly and never done without a thorough review of the records.  In my practice, I decline medical malpractice cases way more than accept them, almost exclusively based on the fact that no doctor or nurse did anything wrong.  If we accept such a case, it is with a 100% belief, and knowledge, that medical malpractice occurred.

Also interesting were the results of the "Long-term Emotional and Financial Effects of the lawsuit."  63% had none.  The next biggest category is that 29% of doctors no longer trust their patients and treat them differently.  Only 6% left the practice setting.  However, if "Emotional" was not part of this poll, I firmly believe 94% (thus excluding the 6% that left the practice setting) would have answered "none" to long-term financial effects.

Why is that?  One, doctors have insurance, and insurance providers foot the bill and pay any award or settlement. (Same as if you had car insurance and caused an accident and injured someone).  No money out of the doctor's pocket.  Second, patients rarely look or rarely know that a doctor they are seeing has been or is being sued.  It is rarely reported in the news, as it is not that interesting.  Also, unless there is a jury trial (very rare) and the plaintiff wins (even more rare), the record simply shows that the matter was dismissed, regardless of whether the plaintiff was paid something or not.  So, a lawsuit has no effect on the doctor's business.

What I take from all of this is that even doctors recognize that most medical malpractice lawsuits are not frivolous and are a necessity for injured people to obtain compensation they need to care for themselves for the injuries they sustained.

Just like counting to make sure all instruments are accounted for before sewing someone back up after surgery, lawsuits act as a system of checks and balances to help keep patients safer.

Wednesday, June 19, 2013

Things to Know After an Accident...

This list is not all inclusive, but if you have been involved in accident while riding your bike (whether bike v. bike, car v. bike or defect in road/path), you should make sure to do the following, if you are able to do so...

- if physically injured at the scene, call 911 and seek immediate medical attention

- get the name, phone number, address and insurance information for the other vehicle operator

- locate any potential witnesses and get their contact information

- if you can, take pictures of the scene, the other vehicle, your vehicle (bike/car) and possibly your injuries at the time

- look around and see if any outdoor security cameras may have recorded the accident, a make a note of this information.  May need to contact these places to preserve the tape.  Usually tapes are kept for a short period of time before they are recorded over

- if there was a roadway defect, make note of the defect and take pictures of the defect

An accident can take many forms: bike v. bike, car v. bike, dooring (car door v. bike) or defects in the roadway and/or signage. Be sure to gather information as this may assist you in proving the fault of the other party involved in any accident.  Seek legal counsel soon after the accident to ensure your rights are preserved.

Wednesday, May 1, 2013

Senate Bill 22 Update...

Well, I got some information the other day, and it looks like Senate Bill 22 regarding the Collateral Source Rule will not be going any further.  This is absolutely great news for citizens of Wisconsin.

Thanks to those who voiced opposition to the bill.  Ironically however, it is probably not your voice that mattered too much.  The reason the bill appears dead is because the insurance companies spoke up in opposition to the bill citing an increase in insurance rates if the bill became law.

Only when the insurance companies spoke did legislators listen.  This highlights who the current government hears and listens to- businesses and corporations, not individual citizens.  While it is great that Bill 22 will not become law, it should be concerning that it took opposition from a corporation before legislators listened.

However, our elected officials are at it again.  There is a proposal seeking sponsorship to become a bill that completely guts Wisconsin's Lemon Law.  Such a bill would be a Consumer Burden Bill, because it puts all requirements on the Consumer to fulfill before obtaining a refund or comparable vehicle.  Even then, you may not get either.

Watch for a new post to follow on this issue with more detail and the proposed legislation.

The Biggest Variable...

Here is video of a motorcyclist hitting a cyclist.  Luckily, no one was seriously hurt.  That aside, from the video it looks as if the motorcyclist intentionally struck the cyclists because (1) motor man appears to have a clear view of the cyclists in front of him when the motor man comes around the corner and, (2) while the motor man may be sticking out his foot to stay upright, it looks more like the motor man kicks at the cyclist just before impact.

Just goes to show that you when operating a vehicle on the road (bike, car, motorcycle), no matter how safe you are operating, you still cannot control the biggest factor that leads to accidents- OTHER operators.

Stay safe out there!

Monday, February 18, 2013

My Email to Senator Vukmir...

I encourage readers of this blog to send the same to their representatives and also to those in the Senate Judiciary and Labor Committee: Sen. Grothman, Sen. Vukmir, Sen. Farrow, Sen. Risser, Sen. Harris.

Senator Vukmir,
I am writing to ask that you vote against Senate Bill 22 and any change to the collateral source rule.  This has been the law for a century in Wisconsin, and was recently unanimously upheld by the Wisconsin Supreme Court.  A change to this rule punishes those who purchase health insurance and benefits drunk drivers, inattentive drivers and other individuals who injure citizens of this state through negligent conduct.  Any change to the law in this area would effectively punish a citizen for buying health insurance.  Insurance attorneys will be able to submit to the jury what an insurance company paid based upon a discounted rate the insurance company has with a medical provider -- a rate which the citizen who purchased insurance has no say in whatsoever.  Discounted rates, instead of the full value of the medical bills, do not fully compensate an injured individual for their injuries.  In fact, under this bill, an injured person who has health insurance and/or disability insurance would receive less money for the same injury than someone who is negligent and never decided to obtain insurance.  It makes no sense.  Further, because of subrogation laws, it is entirely possible that any settlement or verdict an injured citizen receives would be recouped by the individuals insurance provider, thus leaving the insured without any compensation for their injuries, much less any reasonable compensation.  Again, it makes no sense.  Injured individuals need money to help with future medical care and to compensate him/her/children for injuries that were sustained entirely through someone else's fault.  I encourage you to do what you were elected to do-- help and protect the citizens of this state.  A vote against any change to the collateral source rule would accomplish this goal.  A vote for it would completely contradict your role as a Senator.
Please vote against any change to the collateral source rule.
Thank you for your time.

Friday, February 15, 2013

Important Read...

WAJ Logo  

Release Date:  February 15, 2013        
Contact:  Jason Acord & Jeff Pitman, 608-257-5741

New Legislation Encourages Premium Theft

Rep. Andre Jacque and Sen. Paul Farrow have introduced Senate Bill 22 (SB-22), which will completely change Wisconsin's law regarding how juries determine the reasonable value of medical care an injured person receives as the result of an accident.  The change overrules the collateral source rule, the law in Wisconsin for over a century. 1  
Current law allows an injured person to recover from the negligent person the reasonable value of medical services required to treat the injury.  The law provides that the value of medical services is presumed to be the amount of the medical bills.  Evidence of the amount paid by someone else, like health insurance, is not allowed. 

The Wisconsin Association for Justice (WAJ) President Jeffrey Pitman denounced the bill, "SB-22 discriminates against responsible Wisconsinites who have planned ahead and purchased health insurance.  By allowing in evidence of amounts paid by someone else, people with health insurance could recover less money for their medical care than people without insurance.  That is wrong."

A unanimous Wisconsin Supreme Court in Orlowski v. State Farm Mutual Auto Ins. Co.,2012 WI 21, recognized three principles of why evidence of outside (collateral) sources is not allowed:

  1. First, is to deter a tortfeasor's negligent conduct by placing the full cost of the wrongful conduct on the tortfeasor.
  2. Second, is to fully compensate the injured party.
  3. Third, is to allow the insured to receive the benefit of the premiums paid for coverage that he or she had the foresight to purchase.
Pitman continued, "SB-22 denies the injured person the benefit of a reduced medical bill because of the health insurance premiums paid.  Families should be encouraged to purchase health insurance.  Denying a family the health insurance benefit it paid for is tantamount to stealing the premium paid."

Pitman stated, "SB-22 would allow a bad driver, like a drunk driver, to pay less to the injured person because that injured person had health insurance. This bill  would mean that an injured person who has worked hard, planned ahead and made sacrifices to obtain health coverage, disability insurance and other benefits would receive LESS for the same injury than someone who never bothered to buy insurance.  It rewards the irresponsible, not the hard-working person."
Pitman concluded, "SB-22 penalizes people who have worked hard and bought health insurance.  The bill rewards bad behavior and encourages premium theft."

1 The collateral source rule has been part of Wisconsin tort law since at least 1908.
Gatzweiler v. Milwaukee Elec. Ry. & Light Co., 136 Wis. 34, 116 N.W. 633 (1908).

Friday, February 8, 2013

This Man (and his friends) Don't Care About You...

This is Andre Jacque, from the 2nd Assembly District of Wisconsin.

                                                               Photo from

He looks, well, very unattractive.  And yes, he is smiling at you, but his smile says "F**k you!"

You may or may not know him. I didn't until he pushed Assembly Bill 180, otherwise known as the "pothole liability" law.  I wrote about that here: Pothole Liability  He effectively took your rights away to sue for defective roadways.

And, surprise, surprise, he is back at it.  He has introduced a bill, dubiously titled "Jury Information Act."  This bill would do away with Wisconsin's Collateral Source Rule.  If you are injured, and have insurance, your insurance company has a discounted rate of what it actually pays for your care versus what the medical provider charges.  ER may charge $10,000, but because of the discount, your insurance provider may only pay $1,000.

The Collateral Source Rule prohibits insurance attorneys from telling the jury that (1) injured person has insurance, and (2) that insurance only paid, and medical provider accepted, $1,000.  That is because Wisconsin law allows an injured party to claim the actual value of the medical bills for his/her damages.  So, in our example, the injured person could request payment of $10,000 for being injured.

With this new bill, the uncaring jerk pictured above, wants to take a injured person's right to be fairly and fully compensated away from the individual.  He wants the jury to have this "information" so that ultimately the jury awards less money and does not compensate the injured party.  Obviously, this serves two purposes: (1) saves insurance companies some money, and (2) screws the injured person.

How does this screw an injured person you ask?  Well, when you obtain health insurance, your contract usually has a subrogation clause.  This clause allows an insurance company to take your money if you receive a settlement or jury verdict.  The reasoning here is that insurance companies argued that if an injured individual had bills paid for by insurance and also received monetary compensation from someone who injured the insured person, the insured person would get a "windfall.  What an insurance company is entitled to be paid back is dependent on whether the contract is governed by Federal law (BAD!) or State law (BETTER- but probably only for a little).

At any rate, with the new proposed law, the jury would be able to hear what an insurance company actually paid.  Thus, insurance attorney can argue that is what the reasonable value of the case is.  Thus, injured individual is unable to obtain the value of what was actually billed.  So, when insurance company comes calling, insurance company could take everything you received from the person who injured you, thus leaving you injured and uncompensated.

Using the example above, if you only had 1 bill for you injuries, and it was $1,000, and a jury awarded you $1,000, the insurance company can (and definitely will) take your $1,000.

So, in the end, you were injured through no fault of your own, you go through treatment, you sue for your damages to your body and mind (which may or may not be permanent) and in the end one insurance company essentially just transfers funds to another insurance company leaving you with nothing.

Sound fair? Sound just?  Sound like a good law?  If you have any intelligence, your answer to those questions should be no, unless you (a) work in insurance or (b) are pictured above.

This bill not only helps insurance companies, but also benefits drunk drivers, people texting while driving, people not paying attention while operating a vehicle.  Do we really want to protect drunk drivers?  Does that seem smart? Most importantly, does that seem fair?  Why should we benefit people who make reckless or bad choices?  Is a state that rewards such behavior a state you want to live in? Raise children in?

What can you do?  Spread the word about this bill and tell legislators that it is a bad bill which should not be supported or passed.  Explain to our legislators why it is a bad bill.  Explain to legislators that there job is to legislate for us, the citizens, and they are there to protect us.  This bill does nothing except hurt the injured people of this state.  It takes away their ability to be fairly and fully compensated for their injuries and to have money for future care related to their injuries.

Here is the email for Jacque:

Emailing him is a good start.  Then start emailing and calling others. This state, which was such a good state, is falling apart at the hands of those currently in power.  Attacks against citizens of this state must stop.

Tuesday, January 29, 2013

Pothole Policy...

On JSOnline yesterday there was a post about Pothole Liability in Wisconsin. ( You can read it here, Potholes , and I love how an important issue like this is not addressed by the newspaper itself, but instead by the AP.  Nice!)

I wrote a blog post on this exact issue February 1, 2012, entitled "Seriously Injured."  You can visit this post via the archives on the right of this blog, or click here: Seriously Injured .

In a nutshell, cities, towns, villages, municipalities, etc., have, except in very specific circumstances, immunity from maintaining their roadways.  YES, you read that correctly.  Perhaps that is why, as you are driving or biking over the Menomonee River Parkway in Wauwatosa, you notice a gazillion potholes starring you in the face.  There is no incentive for the city to fix those potholes in a timely fashion, or at all for that matter.

Of course the "reasoning" behind this move is that cities, etc., claim they will have less suits to defend, and presumably, more money to use to fix roads.

First, bullshit. Governments always try to insulate themselves with immunity because they can. And of course, they cite lawsuits as the main reason immunity is needed. (Damn, here comes that trial lawyer, with his frivolous claim that his client was killed when his client's vehicle struck a pothole and was forced off the road into a tree. We need to stop such coldhearted actions NOW!)

Second, there was a cap on damages at $50,000 prior to immunity.  Considering that these type of lawsuits were few and far between anyway, I fail to see how saving a potential maximum of $50,000 in a lawsuit is of much benefit.  Not to mention the lawyers representing the cities earn a salary from the city and are not some $400/ hour lawyer hired to defend such lawsuits. Also, considering the amount of potholes I see every day just traveling around Milwaukee, I am going to go out on a limb here and say that this "extra cash" is not being used to fix roadways.  Just sayin'.

Third, Wisconsin cities, towns, etc., already receive considerable state and federal funding for roadways.  Again, see point #2.

Finally, a potential maximum payout of $50,000 was already somewhat of a deterrent to take such a case.  Depending on the injuries (see the JSOnline article), $50,000 may be nowhere near the money needed to compensate and injured person.  Such a cap can deter plaintiffs attorneys from taking a case as the firm may spend more to prove a case than a firm is able to recoup. (Same logic is applied by those who passed caps in other areas such as medical malpractice and nursing home cases- if we cannot bar legal claims, lets make it extremely financially burdensome for a plaintiff's attorney to bring a claim at all.)

All in all, this is just another blow to the face, potentially literally for those who travel the roads. Citizens of this state are continually having rights stripped or curtailed in the name of "tort reform" or "jobs" or "budget surplus."  Fancy wordplay, but the question is really at what expense to the citizens of Wisconsin and those truly injured individuals who must suffer mentally, physically and financially at the sword of "immunity."

Think about that when you next see a pothole (or a hundred) while commuting.

Wednesday, January 9, 2013

Consumers Have Rights...

I cannot say much as the case is ongoing, but I am proud to have written the opposition brief in this case on behalf of Ms. Riley, whom the defense was trying to force into arbitration for her claims of negligence and the wrongful death of her husband.  It is a big decision in favor of consumers in Wisconsin.  I encourage you to give it a read.

Read the decision here: