Personal Injury & Wrongful Death

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 3:

3. If a client settles his or her personal injury claim against an at fault defendant, will they have to repay their own insurance carrier under current subrogation provisions of the law?

Answer: This question often comes up in the context of serious injury cases where the injured individual has incurred substantial medical expenses. If the injured individual is covered by a self-funded ERISA plan, federal law requires that reimbursement be tendered to the self-funded health insurance plan from that portion of the settlement which constitutes reimbursement for the same expenses. This is what the doctrine of subrogation means, that being that the insurance company is subrogated against the rights of the injured individual to recover monies it had to pay as a result of the negligence of the third party. If the third party pays the medical expense money to the injured individual, the health insurance company is subrogated and therefore has a right to recover those expenses back from the at fault party since the at fault party caused those expenses to be incurred. In the context of a case where the injured individual only has insurance through a ERISA self funded plan, the bad news for injured individuals is that they may very well have to repay the healthcare plan with monies recovered from their settlements.

The Ortho Evra contraceptive patch has been used by many young women who unfortunately have developed clot related injuries. Some users have had strokes, heart attacks, pulmonary embolisms or deep vein thrombosis as a result of using this product. This past week, the Food and Drug Administration announced a significant update to the manufacturer’s warning on the contraceptive patch. The label now warns users of the patch that they are at a significantly higher risk of developing clot related injuries than other women who use traditional birth control pills. This label change came as a result of a study conducted on behalf of Johnson & Johnson.
Users of this product who have been injured by it should consult with counsel concerning their rights. Litigation has spawned over the country concerning unsuspecting users who have developed clot related injuries. Given the new warnings, which were based on studies documenting these injuries, those who have experienced problems while using this patch should consult with counsel immediately about their legal rights and remedies.

This continues in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 2:

2. Who will bear responsibility for my future medical expenses if I settle my serious injury case today?

Answer: Anytime a serious injury case is settled, there has to be an evaluation of future medical expenses. Has the injured individual recovered completely from their injuries? Are future medical expenses likely? If future medical expenses are likely they need to be considered when the issue of settlement is addressed. In short, a settlement is a once and for all payment meaning that no more monies will be paid in the future. Thus, if future medical expenses are anticipated, they have to be provided for today and then the funds set aside for those future anticipated expenses.

We have previously written about the dangers of medication errors in hospitals. Recently another incident made the news because a celebrity was involved. Actor Dennis Quaid’s newborn twins and another child were put in serious danger when they were administered overdoses of a blood thinner. The California Department of Public Health said the Cedars-Sinai Medical Center gave the newborns 1,000 times the intended dosage of heparin. Fortunately, all three children recovered, but two needed a drug that reverses the effects of heparin.

The authorities said the “violations caused, or were likely to cause, serious injury or death to the patients who received the wrong medication,” and they faulted the hospital for its “deficient practices” around administrating the drug.

The regulators’ found that the hospital did not adequately educate staff about safe use of heparin, which it described as a “high alert, high risk” blood thinner, and that nurses sometimes failed to adequately read labels on vials of the drug.

Our attorneys are increasingly reviewing cases where major surgical procedures are being performed at small physician-owned hospitals and surgical centers.

On January 10, 2008, the Washington Post revealed that the Department of Health and Human Services, Office of Inspector General, had issued a report concerning physician-owned specialty hospitals. The report concluded that most physician-owned speciality hospitals are poorly equipped to handle medical emergencies.

The report revealed that only 55% of the 109 physician-owned hospitals studied had emergency departments, and of those, the majority had only one bed. Fewer than a third of the hospitals had physicians on site at all times and 34% relied on dialing 911 to summon emergency medical assistance for patients who developed problems. Moreover, 7% of the hospitals failed to meet Medicare requirements that a registered nurse be on duty at all times and that at least one physician be on call or in the hospital.

Our medical malpractice attorneys are frequently forced to decline cases which have merit from a liability standpoint, but due to caps on the amount of recovery cannot be justified in economic terms.

Last week, the Los Angeles Times ran a story concerning a 72 year old woman who entered Stanford University Medical Center for double knee replacement surgery in April. Four days later, she was dead. Her son, an anesthesiologist, felt that the case was a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain which she described as a 10 on a scale of 1 to 10. The hospital failed to diagnose the cause of her pain and continued to treat her with pain relievers. Her vital signs became unstable and she was moved to an intensive care unit, but she died of complications from an undiagnosed and untreated bowel obstruction.

According to the story, state regulators found the hospital at fault and cited it. The anesthesiologist and his family decided to sue and approached 24 lawyers. All the lawyers declined to take the case for the same reason – the medical malpractice caps on the amount of recovery didn’t justify the expenses.

Serious injury lawyers like ourselves often hear clients involved in serious accidents tell us that they had “full coverage” at the time of the accident and that they therefore have “excellent” insurance protection. The vast majority of the time, this is not the case at all. This is because the term “full coverage” means that one has the coverage one is minimally required by law to possess. Full coverage does not mean adequate coverage nor does it mean excellent coverage. It means minimally required coverage required by law.

Here in Georgia, in order to operate an automobile, the driver must have a minimum of $25,000.00 in liability coverage protection for any one person, $50,000.00 per accident. What this means is that if someone runs a stop sign and seriously injuries another, he has “full coverage” if he has $25,000.00 in liability insurance coverage for an innocent third-party victim, $50,000.00 for all victims in a single accident. Anyone familiar with hospital and medical costs today knows that any serious injury can hardly be compensated for $25,000.00. Indeed, any serious injury usually involves medical bills far in excess of $25,000.00.

It is heartbreaking for our lawyers to see cases where the at fault driver has “full coverage” and our clients are indeed seriously injured, sometimes with amputations, permanent disabilities and death. In those cases involving death of a family member, $25,000.00 could never adequately compensate the survivors, much less address issues such as medical expenses, funeral bills, lost wages and the like. And yet, we hear over and over again from people inexperienced in this area that they have “full coverage” thereby deluding themselves into believing that they have adequate insurance coverage.

Our medical malpractice attorneys are many times forced to turn away cases against emergency rooms where the patient is injured by clear negligence. This is caused by the gross negligence standard for emergency departments adopted by the Legislature in 2005.

With the Georgia Legislature meeting this week, Senators from both sides of the aisle, Democrats and Republicans, have joined to co-sponsor Senate Bill No. 286. This bill is designed to amend the provision of the so-called Tort Reform Bill initially passed in 2005, which essentially gave emergency rooms immunity from law suits. As part of the February 2005 bill, patients alleging malpractice in emergency rooms must prove gross negligence. Gross negligence is most often characterized under Georgia law as a reckless disregard for the safety of a patient, and in many cases has been interpreted to mean intentional harm.

Georgia’s gross negligence standard is the harshest in the country. Supporting this amendment are not only Republican and Democratic Senators, but Mothers Against Drunk Driving (MADD). MADD Director, Denise Themes, has commented that victims of drunk driving accidents usually go directly to an emergency room for treatment. She points out that given the unique conditions in the statute, it’s nearly impossible for one of those victims to prove gross negligence after the fact.

Our firm is working on a police chase metro Atlanta case involving an officer who has been in two separate high speed pursuit cases resulting in two deaths. We have learned in this case that another officer in the same department has also been involved in two other accidents that have resulted in four deaths. Thus, between these two officers within the same police department there have been 4 high speed pursuit cases we know of involving six deaths. Is the public being protected when police officers engage in these high speed police chases? We think not.

An officer cannot fire his service revolver into a crowded mall in order to stop a shoplifter. Most people understand that it would be too dangerous for an officer to fire his weapon in a crowded mall to apprehend a suspect for such a minor offense. In short, the danger to the public would far outweigh the need to apprehend the suspect. And yet, in a police pursuit context, the police are firing their proverbial guns (engaging in chases) on crowded streets, sometimes in residential areas, sometimes at night and sometimes under circumstances where there are many innocent motorists on the road, and yet, even in those cases where the need to apprehend the suspect is far outweighed by the danger to the public, the chase proceeds. The question is why these practices continue to occur year after year in this country with no meaningful decrease in the carnage on the roads.

Regrettably, it appears that the deaths and injuries which do occur in these cases simply have not affected the right people. When the injured are the family of politicians, perhaps there will be a change in the law. If the next police chase victimizes a prominent politician’s family perhaps there will be an understanding of the dangers of these high speed pursuits. Until such time, the public will continue to be “entertained” by television shows depicting the excitement and adrenalin that one feels when viewing a high speed pursuit. We can assure the public that such adrenalin and excitement would not be felt if their loved one was killed as a result of a pursuit involving a minor offense such as shoplifting. Indeed, as of the writing of this blog, we are reviewing a case where a shoplifter was fleeing from a police officer and during that pursuit, two adults and a child were killed and another adult seriously injured. Was the price worth it? Again, we think not.

Our serious injury attorneys frequently see cases in which insurance companies refuse to pay valid claims and then turn on their insureds accusing them of fraud.

Last Tuesday, the Western Missouri Court of Appeals upheld a jury verdict of nearly $8.5 million against State Farm Mutual Automobile Insurance Company for breach of contract claims and malicious prosecution against a claim holder. The case originated in 1997 when Jennie Hampton reported that her vehicle had been stolen and filed a claim with her insurer, State Farm. Several days later, the car was found abandoned and burned.

State Farm allegedly investigated the claim and denied it on the grounds that Hampton had listed her engine as being in excellent condition when State Farm contended that the car had suffered an engine failure. The Company further alleged that Hampton and an acquaintance towed the car after the engine failure and burned the vehicle. State Farm took their claims to the district attorney’s office and allegedly pressured prosecutors there to file insurance fraud criminal charges against Hampton and the acquaintance.