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 had an arbitration hearing involving a motor vehicle accident. Both of my plaintiff/clients were employed as casino dealers. One took 3 days off work immediately following the accident. Both missed some full days of work periodically, and both used early outs because their neck or back pain was aggravated by their fixed posture while dealing. Both clients treated from July into November in the year of the accident. The majority of the client’s wage loss claims involved loss of income related to early outs. Generally, dealers make about 3 times more in tips than their hourly salaries.

In most casinos, if an employee leaves work for pain related to an accident they get a point. The accumulation of 12 points results in termination.

Most casino employees have the option, when they begin a shift, to sign up for an early-out. If the casino isn’t busy the employee who signs up for early-out can leave early without any points, but they loose their hourly salary and their tips for the hours that they miss.

The majority of the arbitration hearing dealt with testimony from the Plaintiff’s involving their wage loss.

The arbitrator did award some loss of income to both Plaintiffs, but did not award the full amount. The arbitrator’s decision expressed concerned about the lack of doctor’s excuses for time missed from work. The arbitrator found this to be problematic. Plaintiffs were not required to produce a doctor’s excuse unless they missed 4 days of work. Neither Plaintiff missed more than 4 days in a row. Both Plaintiffs testified that all of their time off work between July and November was because of accident related neck and back pain.

The defense presented no evidence to counter Plaintiffs’ wage loss claims, except for the argument that Plaintiffs used early outs on occasion before the accident.

Plaintiffs’ medical records were of little help documenting Plaintiffs’ problems at work and contained no doctors excuses.

I would like to discuss the proof issues involved with Plaintiff’s not being compensated for the full amount of their wage loss.

I could find no Nevada cases that involve the elements of a wage loss claim. Therefore, wage loss, like any other item of damages, must be proved by a “preponderance of evidence”.

The Nevada Pattern Jury Instructions involving the preponderance of evidence standard and wage loss are as follows:

“Whenever in these instructions I state that the burden, or the burden of proof, rests upon a certain party to prove a certain allegation made by him, the meaning of such an instruction is this: That unless the truth of the allegation is proved by a preponderance of the evidence, you shall find the same to be not true.

The term “preponderance of the evidence” means such evidence as, when weighed with that opposed to it, has more convincing force, and from which it appears that the greater probability of truth lies therein.”

Source: Eighth Judicial District Court Civil Jury Instructions. Nev. J.I. 3.00 – Burden of Proof; Preponderance Of The Evidence

“In determining the amount of losses, if any, suffered by the Plaintiff as a proximate/legal result of the accident in question, you will take into consideration the nature, extent and duration of the injuries (or damages) you believe from the evidence Plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate Plaintiff for the following items:”

Source: Eighth Judicial District Civil Jury Instructions, NEV. J.I. 10.00 – Personal Injury and Property Damage; Introductory.

“Plaintiff’s loss of earnings from the date of the accident to the present and the loss of earnings which you believe the Plaintiff is reasonably certain to experience in the future as a result of the accident.”

Source: Eighth Judicial District Court Civil Jury Instruction NEV. J.I. 10.03 – Personal Injury; Loss of Earnings.

“Whether any of these elements of damage have been proven by the evidence is for you to determine. Neither sympathy nor speculation is a proper basis for determining damages. However, absolute certainty as to the damages is not required. It is only required that Plaintiff prove each item of damage by a preponderance of the evidence.“

Source: Eighth Judicial District Court Civil Jury Instructions NEV. J.I. 10.19 – Personal Injury and Property Damage; Closing Instruction.

California Pattern Jury Instructions give us the following requirements of proof of past lost income:

To recover damages for past lost earnings, [name of plaintiff] must prove the amount of [insert one or more of the following: income/earnings/salary/wages] that [he/she] has lost to date.

Source: CACI 39036 citing “We know of no rule of law that requires that a plaintiff establish the amount of his actual earnings at the time of the injury in order to obtain recovery for loss of wages although, obviously, the amount of such earnings would be helpful to the injury in particular situations.” (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 656 [151 Cal.Rptr. 399].)

The BAJI instruction involving past wage loss provide us with the following elements of proof of loss of earnings:

“The reasonable value of working time lost to date.

In determining this amount, you should consider evidence of plaintiff’s earnings and earning capacity, how [he] [she] ordinarily occupied [himself/herself], and find what was reasonably certain to have been earned in the time lost if there had been no injury.

[One’s ability to work may have a monetary value even though one is not employed by another.]

[Also, the reasonable value of serviced performed by another in doing things for the plaintiff which, except for the injury, plaintiff would ordinarily have performed.]

[These are items of economic damage.]”

Source: BAJI 14.11

None of this law on past wage loss requires a doctors excuse as a prerequisite to the recovery of past wage loss.

So, what can physicians do to assist a personal injury patient with verification of past wage loss, so that they can meet the preponderance of evidence standard of proof?

1. Since a doctor’s excuse can be an element of proof for past wage loss, the treating physician should always give the patient a doctors excuse to verify any absence from work, whether the employer requires it or not. The patient should give the doctors excuse to their personnel department, payroll department, or human relations department, so that it becomes a part of their payroll/personnel records.
2. The physician should document any absence from work in his patient’s records by referencing how the patient’s condition prevented them from working and/or how the patient’s condition would be aggravated by the tasks associated with the patients work.
3. Previously, I have written about how “duties under duress” that appear in a patient’s medical records can increase the value of a claim for purposes of computer evaluation utilized by insurance companies. Therefore, the physician should inquire on each visit about how the patient’s condition is affected by work. Are you experiencing pain while working? Have you missed any days/hours of work because of your injuries and associated pain since your last visit? If so, this information should be documented in the medical records. If interim full days are missed the physician should document this in his records. If partial days are taken off work, or if the patient has to leave work early because of their injuries, this should also be documented in the medical records, and the physician should comment on his opinion as to whether this missed time from work was reasonable and consistent with the patients injuries. Obviously, this documentation may take a few minutes to do, but it is extremely valuable in verifying and taking the mystery out proof of past wage loss.
4. The patient should communicate the difficulties he’s experiencing at work to the physician, even if the physician doesn’t ask about it. When the physician asks the question, (“How have you been doing since your last visit?”), the patient should communicate information concerning work duress to the physician. Documentation of wage loss and duress experienced at work is a two way street. The patient should communicate wage loss and work distress information to the physician, and the physician should inquire of the patient about how his work is affecting his injury.
5. Insurance companies don’t like to pay for past wage loss and have been successful in defending wage loss claims because of lack of documentation in medical records. Obviously, if I had wage loss and work distress information in my arbitration clients’ medical records the arbitrator would have been more inclined to award them their entire wage loss claim.

For these reasons wage loss claims are easy to defend. Work distress documentation is also important in documenting pain and suffering. If the physical requirements of a patient’s work affects their accident-related pain and suffering, then documentation of work distress also documents the patient’s pain and suffering.

This is a common sense plan for the verification and documentation of past wage loss. To my knowledge nobody has taken the time to articulate this simple approach to support proof of past wage loss. This article will be disseminated to physicians who deal with personal injury claims. Hopefully, this article will result in the beginning of an improved plan for the documentation of past wage loss by physicians who treat victims of accidents.

You have undoubtedly heard the line that, “A person that represents himself in a legal matter has a fool for a client.”

Are there legal matters that can be handled economically without the direct services of an attorney?

One such legal matter may involve a Power of Attorney.

A Power of Attorney gives authorization to a person to act as the agent or attorney for another.

The person who is given the power to act is the Agent or Attorney-in Fact. The person who grants the authority is called the Principal. An Attorney-in-Fact need not be an attorney at law. A lawyer is someone that graduated from law school. A lawyer is someone licensed to practice law in a particular jurisdiction. An Attorney-in-Fact must be completely honest with and loyal to the principal. This duty is one of good faith and fair dealing and is sometimes referred to as a fiduciary duty. The Attorney-in Fact can be either paid or not paid for his services.

A General Power of Attorney authorizes another person (the agent), to carry on all of your business matters.

A Special, Limited or Specific Power of Attorney authorizes your agent to carry out a particular business transaction.

A Durable Power of Attorney becomes effective when the principal (you) becomes unable to manage your own affairs. It differs from the traditional Power of Attorney that comes into effect upon execution and terminates with your incapacity. The Durable Power of Attorney continues the authority to act beyond your incapacity.

A Durable Power of Attorney is sometimes referred to as a Springing Power of Attorney. It comes into effect when a specific event occurs, such as your physical or mental incapacity. These Durable Powers of Attorney can be used for property management or health care.

Durable Powers of Attorney are inexpensive and create a way to handle your affairs when you become incapacitated. They can eliminate the expensive legal process associated with your friends or family members appointing a guardian in the event of your incapacity. Springing Powers of Attorney can grant specific or general powers to your Agent or Attorney-in-fact.

Generally, Powers of Attorney cannot be drafted to give authority to perform acts such as voting for you in an election of for purposes of changing your will.

All fifty states recognize some version of the Durable Power of Attorney. Generally, Powers of Attorney must be in writing. Although under very rare circumstances oral powers of attorney may be appropriate.

A Health Care Proxy is a power of attorney that assigns to another person the authority to make medical decisions when you become incapacitated and it can be used in conjunction with a Living Will that dictates your wishes and intent regarding the extent of life-saving or sustaining treatment desired by you at the end of your life. A Living Will does not appoint another person to make health care decisions. A Living Will only allows you to express your wishes concerning life-sustaining procedures. Health Care Proxies become effective when your attending physician determines that you lack the capacity to make decisions. Prior to that time, you retain all decision-making rights. You may specify that the power won’t go into effect until a doctor certifies you as mentally or physically incapacitated. You may make the provision that two licensed physicians must certify or agree that your are mentally physically incompetent.

When does a Power of Attorney end? Powers of Attorney generally terminate when you die or become incompetent. You can revoke a Power of Attorney at any time,unless it contains a valid irrevocable clause.

There are many situations where a Power of Attorney can be used:

1. To give someone the authority to manage your financial affairs if you become physically or mentally incompetent.
2. If you are out of a jurisdiction on vacation or on business, and you need to complete a real estate transaction.
3. Allow assets to be transferred from one brokerage account or bank account to another.
4. Grant the authority to your broker to buy or sell securities.
5. Grant the authority to a person to handle banking transactions such as deposit and withdraw funds, if you can’t physically go to the bank.
6. Grant the authority to someone to enter your safe deposit box.
7. Grant authority to a person to handle matters related to government benefits such as social security, to manage and operate your businesses in your absence, to settle insurance claims, to purchase insurance, to handle your debt collection, or to borrow money on your behalf.

What are the general requirements of a Power of Attorney?

1. A Power of Attorney must be witnessed by a notary or some other public officer. Notarization makes it harder for someone to challenge the validity of your signature and allows the document to be recorded for use with real estate transactions.
2. You must be mentally and physically competent to execute a Power of Attorney.

The scope of a Power of Attorney is almost unlimited. For example, I recently had a personal injury client who was involved in a motor vehicle accident with her minor granddaughter. I drafted a Power of Attorney for the mother to grant authority to the paternal grandmother to handle all aspects of her daughter’s personal injury claim, including the authority to obtain court approval to settle the daughter’s claim by way of a Minor’s Compromise Order, which is required by Nevada law to settle a minor child’s accident claim.

My law firm soon will be involved in the practice of virtual law at NevadaLawOnline.com . Virtual law gives clients access to a secure website containing legal forms for various legal matters. Clients can utilize these forms with or without attorney input. For an additional fee clients can have their legal documents reviewed or have their questions answered by an attorney via telephone, e-mail or by teleconference.

As previously mentioned a Power of Attorney may be one of those legal matters that can be done by you without or with limited attorney input.

Over the past few years the media has been reporting on an alleged conspiracy in our medical legal community involving prominent attorneys, judges, a medical consultant, and doctors.  This scandal has been labeled “Las Vegas’ Medical Mafia”.

It began with a motor vehicle accident where the adverse driver was a federal prosecutor.  Obviously, there are two sides to every story.  The media has concentrated on the medical-legal unethical conduct.  There has been little coverage concerning the interaction between the prosecutors and the auto insurance companies.  Ironically, to date, nobody has actually been convicted.  Some doctors have been given immunity, and one doctor is about to enter a plea bargain with the prosecution.  The details of this proposed plea bargain have recently been made public.

The end result of all this has been detrimental to the already tarnished image of attorneys handling personal injury cases.  Why do these things happen?

Insurance companies on one hand are very concerned with fraud which costs them billions of dollars annually.  They don’t like big verdicts, even though they have almost unlimited resources to defend these cases.  So the insurance industry is motivated to protect their financial interests by setting examples of attorneys, doctors, and consultants who are involved in large verdicts.

On the other hand, zealous representation of personal injury victims sometimes involves going to the absolute limits of what is permitted by the rules of professional conduct.  The closer that an attorney gets to the line, the greater the chance of crossing it.  The more often a medical-legal professional goes to the line, the more blurred the ethical boundary line becomes.

The zealous defense of personal injury claims also involves some danger of crossing ethical boundary lines.  Attorneys for both sides experience anxiety when deciding over how far they can go in the representation and defense of their clients.  Both sides are motivated by ego and financial gain.  In order to win a personal injury case, there must be cooperation between the attorney and his medical witnesses.  How far can this cooperation go before it is labeled collusion?  All this is a part of the war that goes on between accident victims, insurance companies, personal injury attorneys and defense attorneys.

So what do we come away with from all of this?

The bottom-line is that there are many victims of auto accidents that are never fully compensated.  Many victims, years after they have settled their auto accident claim, will need spinal surgery.  There are others perhaps that are overcompensated.  The more medical-legal pressure that is applied in a personal injury case, the greater the risk that one side will cross the line between ethical and non-ethical conduct.

So, both sides of the medical-legal war need to step back and take a good look at what they are doing to bolster their position.  Be cognizant of the ethical limits of zealous representation.  If you believe that the other side is crossing the line, that doesn’t necessarily mean that you also need to cross the line to protect your client’s interests.

We should all be concerned about the damage that the “Las Vegas’ Medical Mafia” cases have done to the reputations of our medical-legal community.  It’s up to us to repair this damage by making sure that our future conduct does not involve any risk of unethical behavior to achieve quality representation of our personal injury clients.  If the “Las Vegas’ Medical Mafia” media coverage has taught us anything, it has more clearly defined the line between professional and non-professional conduct, and has given us some examples of what we should not get involved in while representing our personal injury clients.