Vegas Personal Injury Law Blog

I started working on personal injury cases prior to going to law school.  I have witnessed many changes in the insurance industry, the law, and  attorney advertising  that have impacted  personal injury claims over the years.  I have argued many cases before the Nevada Supreme Court that have created new case law on automobile insurance.  I have witnessed the implementation of the arbitration and the short trial and mediation programs, which have made Alternative Dispute Resolution a viable alternative to jury trials in resolving Personal Injury cases in the state of Nevada.

I can remember a time, after I was admitted to the Nevada bar, when Arbitration was never used,  and all contested personal injury cases were  resolved through normal litigation.  Alternative Dispute Resolution was seldom used to resolve any personal injury case.  These cases either settled or proceeded to trial.

When the cap on statutory arbitration was raised to $15,000.00, personal injury attorneys  started using the Arbitration statute in an attempt to resolve smaller personal injury cases.  Then came the court annexed mandatory arbitration program.  The cap on court annexed arbitration was raised eventually to $25,000.00 and then to $40,000.00, and arbitration is now mandatory and non-binding for all cases with damages of under $50,000.00.

I was a member of the Nevada Supreme Court Advisory Committee for the short trial program. I tried the first case in the short trial program that used a Pro Tempore Judge (Senior Judges handled the first few cases that were tried in this program).  The short trial program in Nevada is certainly  working and has a high resolution rate. Some insurance defense attorneys still insist on exempting cases from the short trial program.  Now, most short trial cases settle before they ever get to trial.  I had one short trial in 2011that settled the morning of the trial in the courtroom.   All short trials that I had set for trial in 2011 settled.

In the last 10 years, I started using Mediation to resolve cases.  I learned that, if you do your homework ahead of time and determine what deals that you can make with health insurance companies and providers on their liens before the mediation hearing, you can give your client a  an accurate estimate of what they will net on any mediation offer. This greatly increases the probability that a case will settle as a result of the mediation hearing. All cases that I had set for conventional trial in 2011 settled as a result of mediation.

Alternative dispute resolution is definitely the way to go on PI cases under $50,000.00, and mediation is the way to go on cases over $50,000.00.

The medical management of musculoskeletal injuries has also evolved in the last 30 years.

Over the years, there have been medical tests, like diagnostic utrasound, which attempted to diagnose musculoskeletal injuries that had a short life span. I have seen the evolution of pain management as a method of treating spinal injuries.  The cost of pain management is very high. It has changed the personal injury business tremendously.  We now have plasma rich protein injections (PRP) to promote the healing of joint injuries and digital motion x-rays and prolo injections to diagnose and treat  ligamentous injuries of the spine. There are even a few  Laser therapy facilities here in Las Vegas. Discograms are now the litmus test for diagnosing the integrity of an intervertebral disc prior to spinal to surgery.  I am sure that new medical procedures and techniques will be applied in the future to help us to diagnose and treat neck and back  injuries.

Jury trials on personal injury cases have become really expensive.  On a recent case I had an expert charge for an IME and then billed $3,000.00 per inch for his review medical records.  Then he billed for deposition preparation on a deposition that was set by the defense.  We pay these fees because we have no choice. That case settled in mediation, so I was reimbursed for these advanced expenses. The costs for expert fees have been going out of control. I had one medical expert tell me that one large personal injury firm in town reserves his time for  a week prior to trial, and they pay him to close down his office so that he can participate in trial preparation.  Most personal injury firms can’t afford to pay these expert fees.  We need to get experts to accept more reasonable fees.  I have learned that everything is negotiable, so I try to negotiate with experts on their fees in the interest of helping my clients.

Over the years I have learned that auto accident victims with soft tissue spinal injuries don’t get adequate compensation, especially the ones that have been involved in multiple accidents and/or so-called low property damage accidents.  Over time a degenerative process occurs from these old spinal injuries; and,  in many cases, the victim’s spinal condition becomes chronic and eventually they need spinal surgery.

Many clients overdose and die from narcotic pain medications and muscle relaxers, or from the complications associated with their use.  Many clients become addicted.  Long term use of non-steroidal anti-inflammatory medications will cause kidney disease. These are attendant complications of drug use for which insurance companies give no compensation or consideration whatsoever. This needs to change.

Insurance companies have forced claims into litigation on what they determine are low impact cases.  Many attorneys don’t take these claims.  By experience I do know absolutely that victims do get injured in these accidents, sometimes seriously. Some require spinal surgery. Nobody that has been involved in the personal injury business for any length of time can  legitimately take the position that people don’t get hurt in these accidents.  These are usually time consuming and low profit cases. Juries don’t like these cases. Insurance defense attorneys like to take them to trial because they are easy to defend.  We need to keep fighting for our clients on these cases.

We now have attorney advertising which promises immediate compensation.  What is not disclosed in these commercials is that the compensation comes from a loan with a minimum interest rate of at least 40% per year (and perhaps as high as 150% per year), when you factor in what are called “administrative costs.”   On an loan of $500.00 from an NJA approved lender, the client owes  $799.00 after just one year. Other rates are higher. I know of one case that on  the  original loan request of $50,000, the lender loaned  $100,000.00, and the loan balance soared past a million dollars in a few years.  The available insurance is $1,000.000.00 and several medical providers seek compensation for the care they gave to the injured client. The settlement funds will, eventually, be distributed by Court Order.

Many people have heard that a case’ value is “three times the medical bills” That may have been true in the past in some cases. Now one major insurance carrier in Las Vegas is only offering 1.3 to 1.5 times the medical bills on good cases. They defend  their cases with in house counsel to save legal fees. We need to raise this standard of compensation so that victims of personal injury accidents are fairly compensated for the injuries caused by negligent drivers.

What I see in the personal injury field is that large advertising firms won’t reduce their fee to settle a case, but they want providers to take a considerable reduction to promote settlement.   These firms don’t disclose their fees during the settlement negotiations.  I’m for full disclosure. If an attorney is going to ask a provider to cut it is only fair that it only fair that the attorney be willing to take a commensurate cut on his fees.

If  you’re in this business long enough, issues will come up from past cases that take up a lot of your time.  Even though providers are paid, years later  later you will get monies owed statements or status requests that you have to deal with. Occasionally, accounting mistakes are made.  So, you must give proof  to the provider that they were paid.  This takes up lot time. The longer that you are in this business, the more of these types of errors you receive.  That’s why we need to keep good accounting records – so, administrative problems on personal injury cases can be handled without problems or inconvenience to the clients.

We need to keep our hard files for 7 years from the time that the case closes.    This is a big expense.  You need a storage facility that is usually not at the same location as your office.  You need an indexing and retrieval system.  Retrieval issues come up quite often. This involves a tremendous ongoing time and expense.  Then after the seven years you have to shred these closed files. I think that the bar needs to revisit their storage requirements.  Perhaps our rules can be changed by our legislature, so that we can include these ongoing expenses as  costs to the prevailing party after litigation.

Now we have to deal with stricter requirements when there are actual or potential Medicare liens.  This is also taking up much of our time.  I have one case that has been pending for years.  It was a food poisoning case. The client died. So the case settled a year and a half ago and after the Final Detail Settlement form was sent in, we received a new lien.  We had previously  received a new no claims paid letter. The new lien  came back listing tens of thousands of dollars of  physical therapy bills.  Of course, you don’t get physical therapy for food poisoning.  Anyway, this had to be appealed leaving this case undone. And after we get that resolved, the Probate case also  has to be closed.  Does the reduction that you receive on the Medicare lien compensate the attorney for all this time involvement? The federal government should have a vehicle for reporting these war stories.

How about our minimum automobile liability limits of $15,000.00 per person / $30,000.00 per incident?  Isn’t this a ridiculously low limit for financial responsibility. Most people these days can’t afford uninsured motorists or underinsurance coverage.  Car accidents can definitely can be life changers.  The adverse driver can extinguish your claim in bankruptcy.  Even our personal injury clients are filing Bankruptcy because of the current downturn of our economy.   Are personal injury claims really an  exemption in Bankruptcy?  Extra work is needed when any party files for bankruptcy.  It’s part of the system, but takes up many hours and, sometimes, even Court appearances in Federal Bankruptcy Court. You really earn your fee on these bankruptcy involved personal injury cases.  We need to raise the financial responsibility limits in Nevada as was recently attempted by some in the State Legislature.

One lesson that I have learned over the years  is that you should always be honest and give full disclosures.  Don’t hide anything.  Don’t try to take advantage of anyone. Know where the line of ethical responsibility is and don’t cross it. Try to know if you have a bad case early on.  Get the facts so that you can evaluate the value of the case for settlement purposes and let the client know if there are issues with the case that will affect its value form the beginning.  Don’t cross the line of ethical responsibility just to win a case.

Today, the big advertisers aren’t trying personal injury cases.  Their litigation cases are referred to litigation groups perhaps without the actual knowledge or consent of the clients.  When was the last time that you saw any “heavy hitter” or “immediate compensation” attorney in courtroom?  The theory is that if you have enough cases, you don’t need to go to court: you can get  someone else to do that for you. We need to change this advertising.  If a  fee agreement is executed, the attorney should not be able to transfer the case to someone else for litigation without giving up his contingency fee.  I don’t like this change. It gives us all a bad reputation.

These are only a few of the changes that I have noticed  in the management and prosecution  of personal injury cases in the last 30 years.  I will cover more of these changes in another posting.

A few weeks ago, I was preparing jury voir dire questions for a short trial. Some of the questions that I prepared involved various issues of tort “reform” and other items currently in the media that dealt with negative events involving personal injury lawyers. One area that always has to be covered is the McDonald’s hot coffee case, because most potential jurors have been indoctrinated to believe that this case sets the standard for a frivolous lawsuit.

Recently, I viewed the HBO special- “Hot Coffee”.  This special starts off  by reviewing the details of the McDonald’s case.  If you have the impression that this was as frivolous suit, you should watch this one and one-half  hour special.  Stella Liebeck’s legs were scalded by coffee that was about the temperature of  the water in a car radiator (180-190 degrees).  This temperature is capable of causing third degree burns requiring skin grafting.  Ms.  Liebeck wasn’t the only one that was injured by this McDonald’s coffee. There were over 700 burn cases reported, because their holding temperature for coffee was so high.

The unanimous  jury found Ms. Liebeck to be 20% at fault and McDonald’s 80% at fault for the burns she sustained to her legs from the hot coffee.  The jury awarded Ms Liebeck $160,000.00 in compensatory damages and $2.7 million in punitive damages.  The purpose of punitive damages is to change behavior brought about by egregious conduct. The presiding judge reduced the total punitive damage award to $480,000.00.

The media picked up on the hot coffee case and made it the flashpoint for tort “reform”, which is an attempt to block civil lawsuits and the public’s right to get into court. The media never mentions that there are legal procedures in place that block any frivolous case from ever getting to trial. Nor do they attempt to provide the actual facts of the case.

After this case, big business, insurance companies, pharmaceutical companies, asbestos companies, oil companies, tobacco companies, health insurance companies and companies that insure doctors, tried to pass federal tort “reform” legislation. They banded together under an organization known as the U.S. Chamber of Commerce, which has its headquarters in Washington, DC.  This appears to be an agency of our federal government. It is not. Obviously, the U.S. Chamber of Commerce has  strong financial backing.  Carl Love and George Bush Jr. became the proponents of tort “reform.”  They advocated caps on compensatory, special, and punitive damages.  They preached  that frivolous malpractice suits were going to put our doctors out of business.

Bill Clinton vetoed federal tort “reform” legislation.

One of the purposes of tort law is to promote safety.  In order to do that, you have to hold entities that sell products and services accountable.  If we don’t, then those injured by the negligence of these companies must  look to state programs such as Medicaid to pay for support and medical care necessitated by their injuries.

Once the Chamber of Commerce was blocked from passing national tort “reform”, they centered their campaign  on providing financial support to elect candidates for the state courts that would be pro business and pro tort “reform.”  As a result of this state by state campaign, judges were put into place who were in favor of placing caps on punitive damages as well as caps on non-economic damages for pain and suffering, and even limitations on the recovery of medical expenses paid by insurance (Collateral source rule).

All of this was accomplished by taking snippets of information from cases where people were injured and using these negative aspects of these cases to make them look bad in the eyes of the public. All cases have some negative aspects.  In our state of  Nevada the aftermath of this tort “reform” campaign resulted in a $250,000.00 cap on non-economic damages on medical malpractice cases, a one-year statute of limitations, and restrictions on recovery of damages for medical bills that were  paid by insurance, obviating the collateral source rule on med-mal cases.  Some states have adopted caps on punitive damage, and other states have caps on the non-economic and/or entire amount of damages that a jury can award.

The bottom line is that our civil justice system needs tort law to maintain a civilized society and to pass the cost of damages caused by profitable injury producing products back to the manufacturers and companies that cause injuries to our friends and family.  This promotes safety in our society and protects the public from dangerous services and products.  The criminal justice system, to a certain extent, makes for a more civilized society, but it can’t control non-criminal conduct.  That’s where the civil justice system picks up.  Without access to the courts on tort cases, the public would be picking up the tab for damages caused by entities that should be held accountable for their actions.

Recently, I reviewed a Federal  case that was posted on the Nevada Justice Association list-serve.  This 9th Circuit case interpreted Arizona law regarding the testimony of treating physicians. This decision answers the question:  When does a treating physician’s testimony morph him into an witnesses hired to render expert opinions? If a treating physician renders opinions that go beyond the usual scope of a treating doctor’s testimony, the proponent of the testimony must comply with FRCP 26 (a) (2), which requires a full-fledged expert report stating opinions and the bases for those opinions.

A treating physician is not considered an expert to render expert opinions when his testimony is confined his examination, diagnosis and prognosis of the patient. That testimony is not considered specially retained expert opinion.  But, once the lawyer for the claimant undertakes to elicit an opinion from the physician concerning whether or not a particular traumatic event caused the condition, as opposed to another cause, the physician has been transformed into the type of expert envisioned by the report requirement of FRCP 26.

Treating physicians are often confused about the difference between their role as a  treating physician and their role as an expert witness.

An expert witness is one retained to provide expert testimony in a case.  Generally, the treating physicians are excused from the requirement of this procedural rule requiring a party to timely disclose an exert witness.  A treating doctor may be provided with additional documentation by plaintiff’s counsel.  He may be asked to opine on matters outside the scope of treatment that he provided.  This may involve rendering opinions on the medical care rendered by other physicians.

Physicians are allowed to testify to opinions they formed in the course of caring for the patient.  As soon as the treating physician reviews bills and records outside of what is normally in their file, they become a hybrid expert.

The 7th circuit recently held that a treating physician, who is offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in he course of providing treatment, is required to submit an expert report under FRCP 26(a) (2). The 8th Circuit requires the disclosure of a written report at any time a party seeks to have a treating physician testify concerning the causation of a medial condition, as opposed to merely the existence of a medical condition.

Therefore, it appears that a treating physicians are only exempt from the written report requirement when their opinions are confined to their  course of treatment of the patient.

The Nevada Rules of Civil Procedure provide for  expert disclosure dates deadlines for the exchange of initial expert disclosures.  Rebuttal disclosures are usually due 30 days  after the initial expert disclosure deadline.  Failure to meet these deadlines can be fatal to personal injury case.

So, the treating physician should always assume that his written report will be required in any normal litigation case.  Normal litigation involves those cases that are exempted from arbitration program, and involve damages in excess of $50,000.00.

In Nevada, in cases where damages have a value of $50,000.00 or under,  go first go into the mandatory Court Annexed Arbitration program.  If either side appeals, (assuming no exemption),  the case then automatically goes into the short trial program (one day trial). Although a report may not be essential in an arbitration or short trial case, a  report can be entered as evidence in the arbitration/short trial, and the physician does not need to testify.

If the case involves emergent care, chiropractic treatment or physical therapy, diagnostic testing and  treatment by a M.D. or a D.O., then the M.D. or the D.O. in heir discharge report should comment on causation,  the medical necessity of treatment of all of the patient’s providers, as well as and the reasonable and customary nature of the charges of all providers.

NRCP 16.1 requires the expert report to contain a complete statement of all opinions of the expert,  the basis and reasons for his opinions, the data or other information considered by the expert in forming his opinions, any exhibits or information that he reviewed to support his opinions, the qualifications of the expert, including a list of all publications authored by the expert within the preceding 10 years, the compensation to be paid for his review and testimony, and a list of other cases in which the witness testified as an expert at trial or by deposition, within the preceding four years.

Therefore, a treating physician’s perfect discharge report should cover the physician’s opinions concerning the causation of the patient’s injury (stated to a reasonable degree of medical probability), the medical necessity of the patient’s treatment and the reasonable and customary nature of the charges for all of the patient’s medical treatment. All physicians that are involved with treating  personal injury victims should have a current CV, testimony list, and fee schedule prepared for use in litigation cases.

Therefore, in most personal injury cases involving litigation, the treating physician will be considered to be  at least a hybrid expert. Treating physicians should look at the format for their narrative and discharge reports to see if it meets all of the requirements of an expert report as stated in this blog.