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Currently Viewing Posts Tagged Car Accident

Humpty Dumpty Injury

     It’s one of my pet peeves and it happened on the way to work. I was driving in the right lane, slowing down for traffic ahead of me. All of a sudden and without a turn signal, a van with a painted “Medical Transport”, pulled over and right into my lane.

     I slammed on my brakes and avoided hitting the van. Then, I couldn’t help it. I pulled up next to the van and peered in to see who was driving. I was looking for some explanation or maybe even a sheepish look from the driver. Instead, he was just drinking coffee and talking on his cell phone. That didn”t make me feel any better.

     I couldn’t tell if someone was riding in the back. The last thing they needed was to be in an accident while on their way to a medical appointment, because of an inattentive medical transport driver.

      That event reminded me of a recent case that I was working on. The fact pattern has repeated itself several times. What happens when a person is already hurt and they get into another accident? The mentioned case involved someone riding as a passenger, who was rearended while leaving the hospital, after just having back surgery. Hurts to even type those facts.

     What injuries and harms should be the responsibility of the at-fault driver?  For blog purposes, there is no simple answer. It does go back to the law on preexisting injury. It’s also sometimes casually called “The Humpty Dumpty” Instruction:Humpty

     This is the instruction that is usually read to a Virginia jury: 

If you find that the plaintiff had a condition before the accident that was aggravated as a result of the accident or that the pre-existing condition made the injury he received in the accident more severe or more difficult to treat, then if you find your verdict for the plaintiff, he may recover for the aggravation and for the increased severity or difficulty of treatment, but he is not entitled to recover for the pre-existing condition“.

     A defendant is not responsible for prior injury. They are responsible for making the injury worse… the aggravation.

     If you really enjoy reading about history, here is the suggested real story about Humpty Dumpty. Apparently, it was really a cannon that fell off a wall and not an egg. I like the egg story better.

          Honestly, I wanted to write this blog to vent a little about crazy driving; Plus, photos of Humpty Dumpty just make me smile!   fancy humpty

     Still, for pic o’ day I thought I would go with the cat that is not about to fall, if he can help it. Humpty Cat sat above the water.

cat strategy

Retirement or Just Plain Tired

     “Don’t be pushed by your problems, be led by your dreams”. (Ralph Waldo Emerson) I was reminded of that quote in an article from Intentional Retirement.com titled “8 Habits of Successful Retirees“. It really provides some good reminders on living life:

     1. Live with a sense of urgency. Life is limited; Live each day with meaning.

     2. Take Risks. We all should have insurance and wear seat belts. Still, to pursue goals means taking some risk to attain.

     3. Be healthy. In 1900, the three leading causes of death were flu, diarrhea and tuberculosis. Today, the three leading causes of death are stroke, heart attack and cancer. The article reminds that stress and diet are part of these causes.

     4. Retire to something, not from something. The article discusses pursuing not escaping.

     5. Retire based on your bank account, not your birthday.

     6. Choose yes over no; active over passive; adventure over inertia. Mark Twain said, “Twenty years from now you will be more disappointed over the things that you didn’t do, rather than the things that you did”.

     7. Do Important Work. All of us are created to do something meaningful and productive.

     8. Foster meaningful relationships. “If a man (or woman) does not make new acquaintances through life, he will soon find himself alone. Keep friendships in constant repair”. (Samuel Johnson)

     The article attached above has many more nuggets on life. It seemed applicable in the blog because I had just sat down with someone to discuss value for their case. Many of the things above had been impacted by the crash.

     For instance, she couldn’t hang out with her friends; was not able to work and save money; was fearful for her health; and felt like the crash had caused her to be a couch potato. When the accident happened, she was a teenager. These principles of a good retirement were reminders for a teenager. 

     A reminder that no matter where we are in life, we all need purpose. Plus, we need to be able to have the physical capability to carry out that purpose. Without your health, it is hard to enjoy anything.

     And from Mom’s archives for pic o’:

friddday

 

Battle of the Trial Experts

     In yesterday’s blog, I wrote about expert testimony in trial.  Last week, Kim Raab and I tried a case in Richmond Circuit Court, where the experts provided different opinion testimony. It was up to the jury to decide the truth.

     Our client’s car was rear-ended, when she was sitting still on Hull Street. The insurance company’s lawyer told the jury that they accepted liability for the cause of the crash… just not the cause of our client’s injuries. So, the case went to the jury on the claim for injuries.

     In these cases, it really comes down to what harms were caused. That includes how long the injuries last. That’s where the experts went different directions.

     My client was treated by an orthopedic doctor, who gave her an injection in her back; but also said that she had a permanent injury. Her chiropractor had tried to treat her conservatively, because her MRI showed a bulging disc at two low-back levels.

     Both the orthopedic doctor and the chiropractor testified that there was really nothing else that they could do for her. She doesn’t feel pain everyday, but the disc bulging can be aggravated by simple activities like sitting or standing for long periods; driving on trips; or trying to do certain exercises or doing too much activity that involves her low back.

     The defense hired a doctor for the sole purpose of coming to court to testify. He did not see or talk to my client and he did not talk to any of the treating doctors. Instead, he did a “record review”. By his own testimony, that placed him in a better position to evaluate the injuries.

     The doctor hired by the defense told the jury that our client had suffered some injury in the car accident, but that all injuries had resolved. He testified that she did not have any permanent injury and certainly did not need any additional medical treatment.

     When I cross-examined this defense doctor, I knew that it would not be smart to attack him on medicine. He was firm in his opinion. The defense had already brought out that he had been hired and paid by them. The defense attorney just tried to make it sound like an independent evaluation.

     I went back to the fact that the doctor had only read the medical records. I hear it often from defense experts, but I still never get their testimony that they are in a better position to give an opinion because they have not seen the client. Something like no emotional tie.

     As in this case, I always then ask the doctor, “Doctor, do you personally have any patients that you have not seen or spoken to, whom you are currently treating?”. Of course, the doctor answered “No” with a smirk. In closing, it again went back to the reality of the double standard of treatment, versus the defense doctor being paid for testimony in trial. It’s one of those moments when you are hoping that the jury is also shining a light on that defense testimony.

light

     When it comes time for the jury to decide its verdict,  they have to decide who is telling the truth. Kim had asked the client during her testimony, to discuss what “permanent” meant in her everyday life. The client discussed issues that included what she could do at work. She also talked about how she has a hard time wearing high heels and now basically only wears flat shoes; or physically pays for it the next day when she wears heels.

Hope

     When I am waiting for the jury to hit the courtroom buzzer to indicate that they have reached a verdict; I am just hoping that they don’t believe the defense doctor.

     I usually don’t talk about the trial result and then I get emails that asked, “So what happened”. The jury came back with a verdict that was more than 10x the settlement offer. That defense doctor was apparently not influential. The jury believed our client.

     For pic o’ day, this is about presentation. Also, this one is for my Mom!

Facebook presentation

Sorority Hazing Lawsuit

On November 20, 2010, Victoria T’nya-Ann Carter was in the backseat of a car that was headed to a pre-dawn hair appointment. That was an unusual time for a hair appointment, but it was based on her soon-to-be induction into Delta Sigma Theta Sorority. (Newsobserver.com)

Unfortunately, Carter never made it to that appointment, because the car she was riding in careened off a North Carolina Road and slammed into a tree. She and another East Carolina University student were killed. Now, a lawsuit has been filed against the sorority, with a claim that this single-car accident was caused by a hazing initiation, that led up to that ride.

The driver of the car has already pled guilty to two counts of misdemeanor death by a motor vehicle. The Carter lawsuit, brought by her mother, claims that the driver was suffering from “excessive and overwhelming fatigue, exhaustion and sleep deprivation”. Ultimately, she “fell asleep behind the wheel”.

Following the crash, University officials conducted their own investigation. The investigators could not get the sorority to cooperate in providing information from its members. The sorority was immediately put on probation by the University.

It was later learned and according to the lawsuit, the following are the facts that led up  to the crash: 17 pledges were required to live together in a two-bedroom, two bathroom apartment. There, and with the specific intent, they had difficulty getting sleep. They were also required to perform exercises that consisted of doing “wall sits”, which meant holding their backs against the wall in a seated position for long periods of time.

The pledges were also forced to stand on one leg and hold heavy bricks over their heads for long periods of time, while being subjected to ridicule and humiliation from the “Big Sisters”. They were forced to rub hot sauce on their lips and drink a “Delta Apple” which was made from a large raw onion. They then were made to eat large amounts of cottage cheese and drink buttermilk.

The nights and morning before the crash, the pledges had been perfecting the sorority “probate death march” and were kept awake. Then, they were sent for  6 a.m. hair appointments. The lawsuit claims that the sorority caused the events that led to the crash and should therefore be held accountable.

I am sure that the defense attorneys for the sorority will defend the claim by pointing the finger of responsibility away from the sorority, and to the driver. When I read the lawsuit, I see peer pressure that led to the crash. It was a recipe for disaster. Hopefully, this will have some long term impact on what is condoned at Universities.

For pic o’ day, I post a picture that seems to indicate some employee anger… I’m making that mental leap.

Fault versus Responsibility

Major league baseball pitcher, Bartolo Colon, was just suspended (ESPN article) for 50 games, after testing positive  for a performance-enhancing substance.  Baseball decided a couple of years ago that it was no longer going to turn a blind eye to steroids, human-growth hormone and other drugs.

When it was announced that Colon had tested positive for a banned substance, he or his agent released the following statement on his behalf, ” I apologize to the fans, to my teammates and to the Oakland A’s” (his team)

When I saw this story and the statement, I wondered why he was apologizing. For the last couple of years, there were rumors about him unfairly competing. Now, baseball has confirmed those rumors. Is he sorry that he took banned drugs/substances or is he sorry that he got caught? Was he sorry the day before he got caught.

For every lawsuit that I file, I receive an answer to the suit.  Almost always, the answer is filed by the defense attorney that has been hired by the insurance company. In that answer, they deny everything except that there was an accident. Then, on the day of trial or a couple of days before, I usually am told by the defense that  “they are admitting liability”.

Although they admit liability, they then attack my client about injuries and treatment. Recently, I asked a defendant if he was at fault for the crash. Like clockwork, he said that he accepted responsibility for his actions. I then followed up with, “So you accept responsibility for the injuries that you caused my client?”  He hesitated, looked over at his attorney at counsel table and then blurted out, “oh no, that’s not what I meant”.

Whether it’s the real world, baseball or from a car accident, getting caught doesn’t usaully mean “I’m sorry and I’m responsible”.  I suppose that will never change.

For pic o’ day, this pup just realized that Vet doesn’t mean what he thought they were saying:

Bad Idea in a Patrol Car

On the way home from South Carolina, we saw two speeding police cars go past us. We were creeping along the road in Charlotte. We knew that we would probably be creeping a little longer because the problem was obviously more than just morning traffic.

When the police cars raced by, someone mentioned that it sure looked odd to see them driving so close. In fact, it almost looked like one officer was chasing the other.   That leads me to what happens when a Deputy crashes his own patrol car.

KATC.com reports that a Louisiana Deputy did just that. 911 had been called to report that a police car had hit a tree.

When we start our representation of a client, we usually mail a letter under the Freedom of Information Act (FOIA) to get a copy of all the 911 calls. I wonder if the Louisiana call sounded something like, “This is Deputy Hyer. I’d like to report a single-car accident involving a drunk driver”.  (911 operator): “Deputy, would you go to the scene?” (Deputy): “I am the scene”.

According to the story, the Deputy has resigned. I guess if that tree had not jumped out in front of the Deputy, there would be no story. This story ends with its own wisdom. Don’t drink and drive. Don’t drink and drive in a police car. Yes, watch out for moving trees. And then there’s that.

For pic o’ day, how about some computer advice!

National Distracted Driving

I keep doing it and I can’t help it. If I leave a few minutes later than usual in the morning, it means that I will pass the cow outside of the Chick-fil-a.

I know that I’ve written about it before, but you’ll notice that I didn’t write “the person in the cow suit”. No. In fact, I’ve started to believe in that costume. Part of it is that the cow is never that excited when I beep my horn multiple times. It just calmly waves a hoof.

When I pass someone in the Lady Liberty costume, they seem energetic. Yes, I do give a quick friendly beep. The cow, though, seems so casual about it. No spinning signs, just friendly. Not even a shrug of the shoulder.

The point is that I can get distracted. Recently, I heard that driving in the 10-2 position is no longer the way to hold my hands on the steering wheel. Apparently, I should drive in the 9-3, with my thumbs to the side; so I don’t  have any potential problems from airbag activation.

See. that last paragraph happened  because I had a thought distraction while blogging. Instead, I intended to stay focused on the subject of driving while distracted.

April is National Distracted Driving Awareness Month. (Information here) Programs have been put together to remind high school students about driving safely and making the road safer.

The program includes important steps and reminders for all of us. No makeup while driving (note to self); No texting or making calls while driving. Another reminder, is not to reach into the back seat for objects. That reminded me of  one of our cases where the defendant admitted that she crashed into our client’s car, because her child dropped a hot dog from the car seat… Yes, she reached back to secure the lost hot dog.

The entire lists has great ideas for safety. Last year, T-Mobile announced an optional service that automatically disables alerts and sends all calls to voicemail, if a cell phone is in a moving car.

I probably won’t stop the horn of encouragement to that friendly morning cow. But, I know that I’m a candidate for distraction from safety if I get too carried away.

In light of the blog, pic o’ day has special meaning:

 

Don’t Hire a Lawyer!

     Sometimes when I am negotiating with an adjuster, I can hear a “rumpling” sound. It sounds like turning pages. Then, the adjuster might come out with some response to  my question about why the offer is so low.  The adjuster then says something like,  “our medical review panel determined that the amount of necessary medical treatment should only have lasted 6 weeks”.

     Every now and then, I throw them a curve ball. The adjuster might start out with the argument that, “you do realize that there was little damage to the car?”  I quickly assure the adjuster that “I don’t want you to worry about the car, I don’t represent the car”.  There usually is a pause. I don’t think that the claims manual has “car representation” in the categories for response.

     Many insurance companies also have manuals that include written scripts; when calling an unrepresented person, right after a  car crash. In a lawsuit a few years ago, below is the script that was produced to one lawyer, that was  the form to be read, when contacting someone that had not hired a lawyer:

Quite often our customers ask if an attorney is necessary to settle a claim. Some people choose to hire an attorney, but we would really like the opportunity to work directly with you to settle the claim. Attorneys commonly take between 25-40% of the total settlement you receive from an insurance company plus the expenses incurred. If you settle directly with Allstate, however, the total amount of the settlement is yours. At any time in the process you may choose to hire an attorney. I would, however, like to make an offer to you first. This way, should you go to an attorney, you would be able to negotiate with the attorney so his/her fees would only apply to amounts over my offer to you.”

Now, why would Allstate worry about whether a person hires a lawyer, when that person isn’t even their insured. Well, in Allstate’s “Unrepresented Segment Training Manual” (p 15-30) they tell their adjusters that when an injured person retains a lawyer, it more than doubles the recovery.

I don’t want to overload information on studies and statistics, so just one more. In 2003, the insurance industry’s chief research organization (IRC) outlined that the vast majority of insurance dollars that are paid out on bodily injury claims, are paid to people who retain lawyers for those claims. (79% of all payouts).

Insurance companies are in business to make money. That’s why Cigna denied a liver transplant for a dying teenager because they deemed the procedure “experimental”. Progressive sent investigators to pose as potential member at a church Bible study, to secretly tape a claimant’s conversation.   

It’s a jungle out there!

And now, a newspaper correction as our pic 0’day

Brain Injury and Talking Teeth

   As a child, my parents would take me to a Dentist named Dr. Evey. Now, most kids are scared of the dentist and so was I. Dr. Evey  had experience in dealing with those fears.

     Every time I would go for a teeth cleaning, that same fear would creep on my shoulder. So, he would make great effort in making me laugh.

     He kept a collection of false teeth and would pretend like the teeth would talk to me. It was almost like a puppet show, but they were just talking teeth.

     I would laugh my fears away because of those talking teeth. In fact, I always would ask him to pull all my teeth, so I could have my own set of false teeth.

     I thought that it would really be fun to pull those teeth out and play with them. I had no thought of the consequences. My brain was not developed enough to understand a future of Polident; scary corn on the cob events; and the fact that teenagers are not humored with false teeth, like a kid might be.

     Thankfully, Dr. Evey did not take me seriously. He just cleaned my teeth and sent me on my way until the next “tooth show”. My brain was not developed to appreciate that pulling all my teeth was not a good idea.

    Decision making is made in the frontal lobe of our brains. When someone gets in an accident and hits their head, it can have a long term effect on the executive functioning and thinking.

     Our practice represents many people that have hit their head in a car crash. Many have their symptoms resolve in a year. Some, though, have permanent problems that effect them for life.

     Brain injury can occur without bring knocked unconscious. Sometimes, even the force of an airbag can cause such trauma.

     The impact on the person extends to family members. Some describe the event as “the day I lost my wife or husband” . The person they married is changed and it’s because of someone’s carelessness.

     For brain injury, help needs to be given to the individual and to the family. The Brain Injury Association of America (BIA) provides information on treatment and support groups. It also helps families cope with the issues of brain injury.

     Sometimes, just understanding the issues and symptoms becomes a big relief to families. A brain injured person is helped to overcome being a victim; to become a brain injury survivor.

Titanic and Insurance

    

 Tragedy is never expected.  On April 10, 1912, the Titanic embarked on its maiden voyage. The initial passengers that boarded could smell the fresh paint and they had to be careful, because it still had not dried in some areas. The powerful and influential had jockeyed to be the first passengers to sail on this mountain of steel,  that was to be captained by the highly qualified Edward John Smith. The first class passengers had paid a tremendous sum of $4350 for a parlor suite ticket.  The Titanic had been proclaimed “Unsinkable”.

     On April 14, 1912, the party was in full tilt. At once, tragedy stuck as the ship crashed into an iceberg, causing the head to begin taking on tons of water. No one was worried that there were only enough lifeboats on board for half of the passengers. In fact, even as the unseen Death Angel had climbed aboard, Bruce Ismay, who was the President of the company who owned the Titanic, went around to let those in ear range know, “Not to worry, all is well. This ship is unsinkable and it’s clear as far as the eye can see”.

     Despite the assurances of Mr Ismay, you know the ending.  On the early morning of the 15th, the unsinkable was no longer. Even after the ship was at the bottom of the sea and 1517 people had perished, the headlines of the New York  paper announced “All saved from the Titanic”. Telegrams were sent with such messages as “All passengers are safe” and ” The Virginian is towing the Titanic to safety”.  Everyone was in complete denial because the Titanic could not sink.

     We look back now and wonder what they were thinking. Of course, I could do multiple blogs on how Big Business and the greedy completely ignored signs of problems. Not sending enough life boats had to do with taking up passenger space; Which would have cut into profits. The Titanic was not equipped properly to send warnings  since it had no red flares. With just one flare, the ship named “California” could have seen the distress signal, because it was reportedly less than 10 miles away. 

     Skip reading to the bottom, if you are tired of the failures, because I am guessing that my point is clear.  However, just to mention two other things; There were no binoculars in the crow’s nest for the watchman to see the iceberg.  The temperature of the water was unknown to the crew because the thermometer was on a rope that was too short for the water. So, when the captain read the temperature log,  there were no worries about freezing water.

     The lessons of the Titanic are many. Jury consultants have told me that there will be those who sit on juries, who bring a bias with them that basically says, “That couldn’t have happened to me”. The “harms bias” juror then puts some fault on the plaintiff for not avoiding the harms caused by the defendant.

     It is this same reason why many people carry little or no car insurance. In the state of Virginia, the minimum coverage is 25K.  Somehow, that makes people think that they have enough coverage.  Plus, they never think that the person crashing into them might not have any insurance.

     The ending to this blog is to encourage you to step up your coverage limits. I think you will find that it is much less expensive than you expect. Then, if tragedy strikes, coverage won’t be an issue. Even if the person that hits you is insured because you will have uninsured motorist coverage. Think about it. Minimum coverage is not enough if there is serious injuries and significant medical bills. Most of the time, coverage becomes an issue in serious injuries. Call your agent.  For a minor cost, the binoculars could have been in the crow’s nest.

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