The Power of Words

Words have great power, as any linguist will tell you.  The particular word chosen can greatly influence the audience’s perception.   For example, in personal injury litigation, it is common to call a collision between two cars an “accident”.  That is how people generally speak about such things.  The problem is that the word “accident” is used in our vernacular to indicate something that has occurred through no one’s fault.   

Webster New Word Dictionary defines “accident” as a chance happening or mishap.  Calling a collision an accident has the tendency to create an inappropriate bias for the defendant, by creating a conscious or unconscious misunderstanding that the incident was fault-free, or a chance happening.

 A one-liner used by some insurance company lawyers in closing argument to the jury is “Accidents happen.”  This suggests to the jury that no one should be held accountable.  It was no one’s fault.  My one-liner response is “Carelessness causes accidents”.   Since personal injury litigation is about fault and damages, it is important to minimize the use of the word “accident”.  I prefer “incident”, “collision” or, best of all, “wreck” or “crash”.  Even “fender bender” is better than “accident”. Similarly, insurance company lawyers refer to collisions between cars and children as “child dart out” cases.  Smart plaintiff’s lawyers call them “pedestrian knockdown” cases.  You can easily see that the label we place on a situation can influence how it is perceived.

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Capping expert fees for testimony

So you think nothing can be done to stop expert witnesses from the mercenary practice of excessive charges?  Are you concerned that you will have to pay an expert $5,000 or more for an hour of her time in court?  If you live in my state, Pennsylvania, you have cause for concern. 

But in many states, the courts limit the fees paid to expert witnesses (including doctors).  There is a significant body of law interpreting the term “reasonable fee” in the context of expert witness testimony.  Our research of reported court cases from 1994 to 2001 did not reveal a single case approving an expert witness fee in excess of $400 per hour. 

The range was from $250 an hour to $400 an hour for live testimony.  The $400 rate was reached only after the parties stipulated to that number, with the court commenting that it would only have approved a rate of $220 per hour.

One case in Chicago, which set the expert witness fees in the $300 to $400 per hour range, has apparently now become standard practice in Cook County.  The federal court in Baltimore restricts the hourly rate treating doctors can charge to $250.

The San Diego County Superior Court established a fee schedule for various expert witnesses.  It states in part, “Excessive expert fees are limiting access to the court and undermining the quality of justice”.  The fee schedule is as follows:

                        $250 — physicians, osteopaths, surgeons, dentists

                        $250 — attorneys

                        $200 — psychologists

                        $200 — economists

                        $200 — engineers, architects

                        $150 — chiropractors

MICA (Mutual Insurance Company of Arizona), the largest liability insurance carrier for Arizona physicians, hires more expert witness doctors than any other entity in Arizona.  It imposes a $300 per hour cap on its testifying experts.

In Massechusetts, the court approved a rate of $375 per hour for a “prodigiously qualified” toxicologist.  In Illinois, a psychiatrist’s fee was reduced from $600 to $250 per hour.

In Delaware, a pediatric neurologist’s fee for testimony was reduced from $1,200 for the first hour and $1,000 per hour thereafter to $1,100 for the first two hours and $300 per hour thereafter.

In Colorado, a senior attorney was permitted to charge no more than $235 per hour for his expert testimony.  In Iowa, a motor vehicle aerodynamics expert’s charges were reduced from $500 to $250 per hour.

Experts should not be permitted to profiteer by gouging excessive fees from litigants who desperately need their testimony, and have no choice but to pay.  It makes sense to cap expert fees to a reasonable amount.  Caps help to bring litigation costs down, and that’s good for everyone.  

Now if only the legislators in Harrisburg will consider this in the next round of “tort reform” battles ….

Forced testimony and the reluctant doctor

Personal injury attorneys sometimes refer their clients to one of “the usual suspects”, that is, a doctor whose practice concentrates primarily on people who are suing because of injuries.  One reason is that a treating physician who is disinterested in litigation or out right hostile to it can ruin a case.  I had an experience last month with a doctor who would not return my phone calls when I sought to set up his deposition.  This deposition involved medical testimony on behalf of his long time patient.  This highly skilled medical expert could have commanded a fee of several thousand dollars to testify.

I considered sending the doctor a subpoena along with the small witness fee to which all non-expert witnesses are entitled.  If he chose to ignore the subpoena, I could have asked the court to hold him in contempt.   I decided against this option since I suspected that his compelled testimony would be, shall we say, less than optimal.  It can be devastating to the case if the doctor is just going through the motions because he/she resents having to participate in the process, or worse, is hostile because his attendance was involuntary.  Contrast this with the doctors hired by the insurance companies.  They are almost always highly qualified physicians, schooled in the art of litigation, and well paid to register opinions sympathetic to their benefactor.

Truth be told, this doctor was very clear from the outset as to his reluctance to be involved in litigation.  He insists that all patients sign “waivers” in which the client agrees that the doctor will not be involved in litigation.  Apparently, he prefers to spend his time concentrating on healing patients rather than testifying in their lawsuits.  Can you imagine?  Many doctors ask when screening patients if the prospective patient has an attorney.  They may reject the patient if he or she has a lawsuit pending.

Query whether such a patient “waiver” is ethical per AMA Ethical Guideline #9.07 which states in part:

MEDICAL TESTIMONY:  “As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice.  If a patient who has a legal claim requests a physician’s assistance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights.…  The medical witness should be adequately prepared and should testify honestly and truthfully.”

So I sent my client’s doctor a courteous but frank letter quoting this language and again requested his assistance in testifying.

I sent the letter for three reasons.  First, I hoped to change the doctor’s mind by emphasizing his ethical obligation to his patient.  Second, sometimes the doctor doesn’t even know that a lawyer is trying to obtain his assistance.  He may not have received any of my inquiries, because they were screened by his office staff.  My letter, marked “personal and confidential”, could have made it through his palace guard.  It didn’t work.  The doctor did not respond.

The third reason I sent the letter was to take the wind out of the sail of defense counsel.  I expected him to argue to the jury that the “usual suspect” doctor that I ultimately chose would not have been necessary had I called the treating doctor to testify.   He would have suggested that the treating doctor didn’t testify because his testimony would have been unfavorable to the plaintiff.  My letter to the doctor would help to rebut that suggestion.

And so, rather than pressing the issue, I sent my client to a “usual suspect”, who I knew would cooperate.  This hurt the credibility of the medical claim, but what practical choice did I have?

I invite you to give me your thoughts and solutions to this interesting problem.

A Biblical Basis for Personal Injuries Lawsuits

King Solomon said in Ecclesiastes, “There is nothing new beneath the Sun.”  This ancient adage applies to personal injury litigation.

Jewish law, as expressed in the Talmud, (Rabbinic Commentary on the Jewish Oral Law) compels one who injures a colleague to pay compensation in five ways.  One must pay for the colleague’s pain and suffering, medical bills, loss of past earnings, loss of future earning capacity and embarrassment.  Making restitution in this manner is considered one of the Torah’s 613 commandments.  Wouldn’t President Bush be shocked to know that.

One of the best known and most completely misunderstood verses in all of Scripture is “ayin tachas ayin; shen tachas shen. “  This is generally translated as “an eye for an eye; a tooth for a tooth.” (Exodus 21:24; Leviticus 24:20)  Many cite this verse in scornful attacks on the “vengeful G-d of the Old Testament.” 

Who can forget Tevye’s line in Fiddler on the Roof in which he decries that we shall all end up “blind and toothless” under this barbarous system?  Two wrongs ironically seem to make a right.  The audience’s laughter betrays a simple ignorance of the true meaning of this verse.

The Talmud proves both logically and through Scriptural analysis that the verse cannot be interpreted literally.  Rashi (the outstanding Biblical commentator of the Middle Ages) explains that “an eye for an eye” is not to be taken literally.  We don’t maim our fellow by taking his eye out or cutting off a limb. 

Rather, the Jewish sages who have interpreted this verse through history hold that “an eye for an eye” refers to monetary compensation.  We fine the offender the value of an eye.  Never has a Jewish court blinded or otherwise inflicted physical injury out of vengeance. 

This Biblically mandated system is not so unlike our own civil justice system of compensation for personal injuries.  If it is a slogan for anything, “an eye for an eye” is a slogan for an entire civil legal system; not criminal and not capital.

Within the context of the Talmud, we learn that this verse of Torah is not indicative of a vengeful G-d.  Rather, it represents G-d’s system of compensation where victim’s rights are protected and the perpetrator comes to understand the gravity of the offense.

The Hypocrites of “Tort Reform”

We all know that President Bush is a relentless advocate of “tort reform”. But did you know that in 1999, then Governor George W. Bush sued Enterprise Rent-A-Car over a car accident involving daughter, Jenna? Although his insurance would have covered the repair costs making a lawsuit unnecessary, Bush filed suit against Enterprise, which had rented a car to someone with a suspended license. For more details see: http://www.patridiots.com/000844.html.

Pennsylvania Senator, Rick Santorum is another big “tort reformer”. Less well known is that a Virginia jury awarded Senator Santorum’s wife $350,000 in damages on December 10, 1999. She charged that a chiropractor’s negligence caused her permanent back pain. Roll Call, a newspaper that covers Capitol Hill, reported that Santorum testified that his wife might not be able to actively campaign for him.

Throughout the trial, Santorum aides declined to comment. After the trial, they issued a statement from the senator saying: “The court proceedings are a personal family matter. I will not be offering any further public comments, other than that I am not a party to the suit. But I am fully supportive of my wife.”

U.S. Senator Trent Lott, a famous proponent of caps on the amounts for which people can sue, sued State Farm over its refusal to cover his Hurricane Katrina property losses. Shouldn’t there be a cap on the amount of damages he gets?

Prior to the storm Senator Lott has uttered the following gems: “I’m among many Mississippi citizens who believe tort reform is needed.” “It’s sue, sue, sue… That’s not the answer.”

Hurricane Katrina destroyed Lott’s 154-year-old waterfront home in Pascagoula, Mississippi. The house was worth $750,000. On the Senate floor Lott pounded his fist and said homeowners along the Gulf Coast are fed up, warning that insurance companies better do the right thing or there will be “hell to pay…” State Farm says the storm surge destroyed the home, and since Lott didn’t have flood insurance, he isn’t entitled to coverage.

Query the basis for filing suit against his homeowner’s insurance carrier for flood damage, when a basic homeowner’s policy does not, and never did, cover flood damage.

It seems that when Trent “Humpty Dumpty” Lott files a lawsuit, it is not considered “suing”… “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “It means just what I choose it to mean — neither more nor less.”

Pennsylvania Senate Majority Whip Jeffrey Piccola recently sued orthopedists for medical malpractice. Senator Piccola is a co-sponsor of the Corman/Piccola bill that seeks to drastically limit joint and several liability. It would limit the liability of entities that have been proven to be at least partially culpable for a harm. This would increase the risk that the financial burden of treating an injury will fall upon the injured person.

In future e-newsletters, it will be the doctors’ turn again. We’ll explore the concept of doctors and other “experts” who sell their opinions to the highest bidder. We’ll also investigate doctors who refuse to testify in court, nothwithstanding their ethical obligation to the patient.

Editor’s Note: I am not implicating all doctors and all politicians, just those whose hypocrisy merits exposure.

Doctors vs. Lawyers – Who’s the Evil?

The drumbeat goes on.  Over and over we hear the tales of doctors fleeing the
state to avoid outrageous malpractice premiums.  And they blame the lawyers,
of course.  Let’s look a little deeper and see whose hands could use a bit more
scrubbing.

Did you know that it is commonplace for doctors to charge literally thousands of
dollars for a few minutes of their time to testify in a legal case?  I am working
on a case right now in which the doctor’s written policy calls for a charge of $3,000
for a one-hour deposition.  For each additional hour or part thereof, he charges an
extra $2,000.  That means that if his deposition takes one hour and one minute,
he expects to be paid $5,000.

If that’s not bad enough, this doctor also charges an additional $750 for any time
spent with the lawyer preparing for the deposition.  P.S.  If the deposition is
canceled “for any reason whatsoever, these fees are not refundable.”

These charges are ultimately the client’s responsibility, although typically the lawyer
will pay the doctor and only be reimbursed at the time of settlement or verdict.  So
it’s not the lawyer who gets soaked, it’s the client.

Doctors’ depositions are typically taken in the doctors’ office, at a time that is
convenient to the doctor.   This particular doctor charges $5,000 for a ½ day court
appearance and $10,000 for a full day appearance.  Don’t believe me?  I’ll be happy to
fax you this doctor’s written policy to prove it.

How do they get away with this?  Simple.  The doctors know that the client and lawyer
need them and have no good choice but to pay the freight.  The only other option is for
the lawyer to refer the client to another doctor who charges less.  This, unfortunately,
exposes the client and new doctor to devastating cross-examination at trial.   The
opposing lawyer may suggest the client went shopping for a medical opinion because
the client’s first doctor did not believe the injuries were real.

I’ve got much more to say about doctors.  But you’ll have to wait a bit for that.  Stay
tuned for the next month’s post—Politician Heal Thyself!!  I will reveal to you some
of the litigious exploits of some of our country’s biggest “tort reformers”.  You won’t
want to miss my discussion of Dick Cheney’s first combat experience, shooting an
armed but elderly lawyer.

Stella vs. McDonald’s – Part II

Last time we examined the tip of the iceberg known as Stella v. McDonald’s a/k/a the lady who spilled coffee on her self and sued Mickey D. Out of such stuff do urban legends grow. Let’s look a bit beneath the surface.

An acquaintance forwarded the email below in jest. Unfortunately he recalls the details of these “stories” saying “I liked the one about….” Before you read these “stories” understand that many if not all have been debunked as false.

Time once again to review the winners of the Annual “Stella Awards.” The Stella Awards are named after 81 year-old Stella Liebeck who spilled hot coffee on herself and successfully sued McDonald’s. That case inspired the Stella Awards for the most frivolous-ridiculous-successful lawsuits in the United States.

Here are this year’s winners:

5th Place (tie): Kathleen Robertson of Austin Texas was awarded $80,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store were understandably surprised at the verdict considering the misbehaving little toddler was Ms. Robertson’s son.

5th Place (tie): 19-year-old Carl Truman of Los Angeles won $74,000 and medical expenses when his neighbor ran over his hand with a Honda Accord. Mr. Truman apparently didn’t notice there was someone at the wheel of the car when he was trying to steal his neighbor’s hubcaps.

5th Place (tie): Terrence Dickson of Bristol, Pennsylvania was leaving a house he had just finished robbing by way of the garage. He was not able to get the garage door to go up since the automatic door opener was malfunctioning. He couldn’t re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation and Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found and a large bag of dry dog food. He sued the homeowner’s insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of $500,000. In my opinion this is so outrageous that it should have been 2nd Place!

4th Place: Jerry Williams of Little Rock Arkansas was awarded $14,500 and medical expenses after being bitten on the buttocks by his next door neighbor’s beagle. The beagle was on a chain in its owner’s fenced yard. The award was less than sought because the jury felt the dog might have been just a little provoked at the time by Mr. Williams who had climbed over the fence into the yard and was shooting it repeatedly with a pellet gun.

3rd Place: A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania $113,500 after she slipped on a soft drink and broke her coccyx (tailbone). The beverage was on the floor because Ms. Carson had thrown it at her boyfriend 30 seconds earlier during an argument.

2nd Place: Kara Walton of Claymont, Delaware successfully sued the owner of a night club in a neighboring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the ladies room to avoid paying the $3.50 cover charge. She was awarded $12,000 and dental expenses.

1st Place: This year’s runaway winner was Mrs. Merv Grazinski of Oklahoma City, Oklahoma. Mrs. Grazinski purchased a brand new 32-foot Winnebago motor home. On her first trip home (from an OU football game) having driven onto the freeway she set the cruise control at 70 mph and calmly left the drivers seat to go into the back & make herself a sandwich. Not surprisingly the RV left the freeway crashed and overturned. Mrs. Grazinski sued Winnebago for not advising her in the owner’s manual that she couldn’t actually do this. The jury awarded her $1,750,000 plus a new motor home. The company actually changed their manuals on the basis of this suit just in case there were any other complete morons around.

Getting $$$ for spilling coffee in your lap

Stella Liebeck is the 79 year old woman who famously sued McDonald’s after spilling hot coffee in her lap. Ms. Liebeck has become the poster child for all that is wrong with the civil justice system. Let’s look a little closer at this fascinating case.

Ms. Liebeck hadn’t originally planned on going to a jury trial. She had asked only that McDonald’s pay for her skin grafts for her third degree burns throughout her groin, but McDonald’s offered only $800. After hearing all the evidence, the jury was convinced that she was entitled to $200,000 for her medical costs, which they reduced by $40,000 because she was partially to blame for having spilled the coffee.

The punitive damages awarded was $2.7 million, equal to 2 days worth of McDonalds’s coffee sales. McDonald’s knew that its coffee, served 20 degrees hotter than the industry standard, had resulted in hundreds of second and third degree burns. The judge reduced the punitive award to $480,000, even though he called McDonalds’ conduct reckless, callous and willful. Even this amount was appealed by McDonald’s, who settled ultimately for an amount it insisted remain confidential.

For another side to this story, go to:

Stella Awards

a self-proclaimed “tort reform” site. It entitles personal injury cases as “OPPORTUNISTS AND SELF-DESCRIBED VICTIMS v. ANY AVAILABLE DEEP POCKETS AND THE U.S. JUSTICE SYSTEM.”

For yet another side, see:

http://www.lectlaw.com/files/cur78.htm

That site discloses that Ms. Liebeck was in the passenger seat of her grandson’s car, not in the driver’s seat as many have claimed. The grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

No Lawyer? No Problem!

Kill all the lawyers? That’ll just land you in jail. Besides, you may be able to do without one after you read my book, Winning Your Personal Injury Claim, a legal self-help guide. The third edition came out this year and sales have topped 10,500.

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My book will help you develop a plan to achieve your settlement goals, fight big business, win when an unsafe product does harm, and select the jury that will be most favorable to your case. With sample forms and worksheets, you will be well armed to fight the war that personal injury litigation has become.

The third edition has a new chapter devoted to medical malpractice litigation and a step by step guide to pursuing a social security disability claim. There is a new section on legal malpractice litigation.

The third edition addresses online personal injury settlement companies, collecting from an uninsured defendant, conducting an Internet search on any attorney you may be considering, punitive damages, correcting a doctor’s report that has important errors and much, much more.

The reality is, for the vast majority of litigation matters, it is unwise to proceed without skilled legal representation. It’s not just a cliche that one who represents him or herself may have a fool for a lawyer. But armed with this 270-page tome you have a fighting chance. If you decide to hire an attorney, my book puts you in a position of real strength in terms of monitoring your attorney’s performance.

Click to preview my book. You can also pick it up in all major bookstores, or through Amazon. The third edition retails for $24.95 but is discounted on the Internet.

Doctors and Lawyers Perfect Together

A neurologist recently asked me to help him write a medical report for one of my injury cases.  Every medical report in a legal case must cover certain key points.  Here is what I told this neurologist. 

A medical report to be useful in litigation must cover the following:

• History
• Description of complaints of pain, symptoms and loss of function
• Diagnosis
• Statement of causation
• Degree of medical certainty

A final report must also contain a sixth element, a prognosis.

1. Let’s start with history.  The medical report must describe the cause of the
 injury in a very general way.  For example, it should indicate that the client was
 involved in an accident.  It should not be too detailed since the more detail there is,
 the more chance that a defense lawyer will be able to point out inconsistencies between
 what the client says happened and what the doctor has written in his report. 
 
 The history should also briefly describe how the client was feeling before the accident and
 should also discuss prior treatment and any prior relevant medical conditions.  These
 would include symptoms and findings in any parts of the body that were injured in the
 accident.   Finally, the history should include what the client did immediately after the
 accident, for example, called 911 and went by ambulance to the emergency room.
 
2. The report should include a complete description of the complaints of pain,
 symptoms and loss of function as of the time of the visit with the doctor.
 
3. The doctor should indicate a diagnosis. This can be a brief statement as to each and
 every part of the body affected by the accident.  If the client aggravated body parts
 that were previously injured, this should be clearly stated.
 
4. The report must indicate clearly how the accident affected the client, that is, it must
 describe the causal connection between each separate diagnosis and the
 accident. 
 
5. At the end of the report, the doctor must state that all of the opinions in the report
 are stated to “a reasonable degree of medical certainty”.  That is the standard in my state, Pennsylvania.   Something similar is required in every other state.

When the neurologist is preparing his report after the client’s final visit, he will need to state a prognosis.  This involves what he expects the future to hold for the client with regard to his accident-related injuries.  This would include the need for additional therapy, surgery, etc.  It should state that the prognosis is excellent, good, guarded or poor, depending on the reality at that time.

Properly armed with a well written medical report, the attorney will be well on the way to  successfully settling the case.