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Are You Really in Good Hands with Allstate?

David Rosenthal — Tue, 30 Sep 2008 15:35:33 GMT

Allstate Insurance is easily the most prolific advertiser of auto and casualty insurance lines. It runs a series of television commercials starring Dennis Haysbert (of Major League fame) that cleverly portray real life situations, such as rear end auto collisions, and some not so real life situations, like wayward college football fans running their car into a statue of renowned coach Bobby Bowden, to illustrate the need for insurance. The pithy theme of each ad is driven home with the statement "that's Allstate's stand", and with the suggestion that you are not in good hands unless your insurance is through Allstate.

However, experienced consumer attorneys know that Allstate's advertising claims are in stark contrast to its every day claims handling practices. Trial lawyers are in a unique position to judge the overall approach of insurance companies because they deal with a broad cross-section of insurance companies in a wide variety of factual scenarios. During the handling of thousands of claims, the true corporate color of an insurance company shines through. And after reviewing a high volume of claims documents recently, the American Association for Justice unequivocally rated Allstate as the worst insurance company for consumers.

Allstate policy holders might feel that the wrap on Allstate is the result of sour grapes on the part of attorneys who are resentful that their outrageous claims were not paid by the company. However, Allstate's rating was not solely the result of a "boxing glove" corporate policy of lowballing legitimate claims made against its policy holders, although that was certainly part of it. Allstate has also made clear it was willing to get into the ring and duke it out with its own policy holders in the name of increasing profits. In addition, its low rating was based on paying high executive salaries as a reward for successful lowball tactics and charging higher premiums, in part to pay for its expensive advertising.

One recent Allstate commercial illustrates another goal of the Allstate advertising campaign. The ad shows a court room scene where the judge imposes a judgment on a young man (the defendant) in the amount of $100,000 after an auto collision. The defendant's attorney turns to the injured person's (plaintiff) attorney to explain that the defendant has only $50,000 in insurance. The plaintiff's attorney replies that the defendant has a college fund that can be used to pay the balance of the judgment, and concerned parents ask their attorney - "can they do that?" The defendants attorney replies that they can.

The ad is designed to mislead the viewer into believing that the defendant is an innocent victim (it was just an "accident"), and that both the court system and a greedy plaintiff's attorney are the victimizers. This promotes the belief that trial lawyers and frivolous lawsuits are the cause of high insurance premiums.

In real life, such a scenario would likely be the result of an auto collision caused by a speeding driver who was distracted by his cell phone and ran a red light, sending the other driver to the hospital with serious, possibly permanent injuries. The other driver incurs medical expenses of $25,000, loses income from work of $10,000, and has ongoing pain and limitations. Although the value of the pain, suffering and inconvenience is well in excess of $15,000, the other driver is willing to settle out of court for the responsible driver's $50,000 policy limit to avoid going to trial, and probably out of a moral feeling that he does not want to collect against the responsible driver's personal assets.

Even though the other driver is without fault, the insurance company for the responsible driver puts on its boxing gloves and offers only $40,000, which is less than the policy limit of $50,000. The attorney for the injured person has no choice but to spend thousands of dollars to take the case to trial to seek the full value of the injured person's damages. A jury of reasonable people taken from the general population (rather than a judge as portrayed in the ad) determines that the total value of the injured person's loss is $100,000. Now, because of the insurance company's lowball at all cost mentality, there is a judgment against the responsible party for more than his insurance coverage.

Allstate Insurance has engaged in a successful marketing campaign. But this expensive advertising comes at a cost. The consumer warning caveat emptor is especially appropriate when you consider purchasing insurance from Allstate. Purchasers of insurance from Allstate may find that the "good hands" have boxing gloves on, and making a claim is like ringing the fight bell.

Originally posted at InjuryBoard by David Rosenthal

Medical Marijuana, ID Cards, and Sacramento County

Amber Wheat — Thu, 18 Dec 2008 16:19:17 GMT

Since 1996, medicinal use of marijuana for certain medical cases has been legal in California. In 2003, the state decided that ID cards should be issued on the county level to identify patients who are allowed to posses and use marijuana. Like a Drivers License, only a Users License.

Many people comment on articles like this and if they take the time to do that, they obviously feel very strongly about the subject. On one hand I understand that it is California law that allows this use, but on the other hand, it is still illegal under Federal law.

This issue confused me when California was voting on whether or not to give illegal aliens Drivers Licenses. I asked my grandfather, “If we know they are illegal, aren’t we supposed to deport them?” He then explained to me that the INS is a federal agency and the DMV is run by the state. Bureaucracy at it’s best. The state is not required to deport illegal aliens, nor or they required to talk to the federal government and tell them who they are. Fair enough.

But what if those illegal aliens got in a collision and injured somebody, are they required to carry insurance as well? Well what if a person legally using marijuana for medicinal purposes gets in a collision and injures somebody? Should they be required to carry extra insurance? The fact is, smoking marijuana impairs your senses. Are these people going to be given leniency because they were driver under the influence legally? I think not. Will they be punished more harshly because they were under the influence of drugs and not alcohol? Probably. Is that fair? Heck, no!

Where does the liability end? If the state takes control of medicinal marijuana and requires pharmacies to hand it out, does the pharmacy take on liabilty? Does the state? If the worst should happen, what happens to these patients? If we issue these ID cards, does it give these people free reign to grow, distribute, and smoke marijuana?

It is a very controversial issue and I would like your opinion on it. At this point I really feel that if Sacramento County issued this ID cards, they are giving permission for these patients to be more open with their treatment and the county could be held responsible. It is known that marijuana impairs judgement, it is foreseeable that a patient may drive after receiving a treatment, it is probable that the impaired patient will cause a collision. And it could be argued that it was done with the county’s permission.

What do you think? Am I way off base here? Has anyone else thought about possible repercussions?

Originally posted at InjuryBoard by Amber Wheat

Contributing Factors: The Good Samaritan v. The Jaywalker

Amber Wheat — Thu, 26 Feb 2009 14:26:19 GMT

A news story on MSNBC relates an incident involving a bus driver who pushed three people out of the path of an oncoming vehicle only to get hit by the truck himself. Jim Moffett risked his life and sustained great injury to save two little old ladies and another man.

What he did was a good thing, but The Colorado State Patrol says what he was doing before the collision was not okay. Mr. Moffett, the other man, and the little old ladies were jaywalking. Mr. Moffett was cited and will be fined.

When we hear stories like this, the public reacts with outrage. “How can they fine this man when he probably saved lives?” Well I know precisely how they can do it. His actions were a contributing factor to the collision. The driver of the pickup was cited for reckless driving, but it takes two to cause an accident. One person to not pay attention and another person to be there. If they hadn’t have been jaywalking there wouldn’t have been an accident at all. In the same vein, if the driver had been more attentive, there wouldn’t have been a collision, either. They are both jointly and severally liable.

It takes a very special kind of person to do what Mr. Moffett did and I have the utmost respect for him. I hope that he will be okay and I am sure that the citation will be paid for by admirers (if not dropped altogether).

I hope that others take this instance as a warning that jaywalking is never a good idea. Crosswalks are there for a reason. Helping little old ladies to cross the street is very nice, but making sure they get to the other side safely within a crosswalk is nice and smart.

Our firm regularly deals with pedestrians who have been injured by vehicles. The injuries are often severe because, while the driver has tons of steel protecting them, the people on the street don't even have a helmet to protect themselves. Be smart out there, we don't want you or anyone you love to need our services. If the worst should happen, you know where to find us.

Commenters on MSNBC responded with outrage, what are your thoughts? Do you agree with the officers?

Originally posted at InjuryBoard by Amber Wheat

Drunk Driver gets a Slap on the Wrist for Fatal Crash

Amber Wheat — Thu, 23 Oct 2008 17:25:43 GMT

I was shocked and very upset to read about Troy Hovey’s sentencing. Judge Robert Glusman handed down the weak sentence of 180 days in jail and three years probation for taking the life of Amit Tandon.

Mr. Tandon’s widow is pregnant and was unable to face the man who killed her husband in court, but she sent the judge a letter asking for the maximum of 10 years in prison. But friends and relatives of Hovey sent letters also, telling the judge about what a wonderful man Hovey was.

This case did not go in front of a jury. Hovey pleaded no contest to a felony charge of gross vehicular manslaughter while intoxicated and driving with more than .08 percent of alcohol in his system. In actuality, Hovey had a blood alcohol level nearly three times the legal limit He knew what he did.

I have always contended that drunk drivers make choices. These are not “accidents” (any good plaintiff attorney knows to call it “the collision”), but they are mistakes. Mistakes are made when people make wrong choices. Defense counsel cited addiction and alcoholism as excuses for him. The judge expects Hovey to “embrace recovery.” Hovey has tried twice before to get sober and was even participating in an outpatient program at the time of the accident.

What really irritates me is that Judge Glusman defends his ruling by saying that probation has not been prohibited in vehicular manslaughter cases and that means the Legislature wants judges to examine each case on its merits. Well fine! Look at the merits of this case! He knew he had a drinking problem (in tort law we call that forseeability), he went drinking, he got really drunk, he got back in his car, he raced down Highway 99 at 60-80 miles per hour, he crossed the median, and slammed head-on to a husband and soon-to-be father. He killed this man. Where is the justice for Tandon’s family?

The judge is confident that “this won’t happen again,” but his parting words are “If I find you’re drinking, I’ll be the last person you want to see.”

I am incredibly saddened by this outcome and it’s message to other drivers who drink and then take stupid risks. It’s not the drinking that’s the problem, it’s the driving after drinking. Get drunk to your hearts content, but STAY HOME. As citizens of America we have every right in the world to drink alcohol, but nobody has the right to put the lives of others at risk.

Am I being too harsh? I know I am coming down hard, but I firmly believe that there is no excuse for drunk driving in today’s day-and-age. With cell phones, taxi companies, public transit, volunteer drivers, and so many other options, drinking and driving should be a thing of the past.

What do you think?

Originally posted at InjuryBoard by Amber Wheat

Risks of Radiological Studies

Amber Wheat — Wed, 04 Mar 2009 17:53:36 GMT

Yesterday, MSNBC reported on a study by the National Council of Radiation Protection and Measurement. The report stated that Americans are exposed to seven times the radiation that they were in 1980. It goes on to accuse doctors of requesting radiological scans because it pads their pocket books instead of for the benefit of the patient.

After reading the recent post on the risks and benefits of radiological studies by my boss, Barbara, I was concerned that reports like this would confuse people and ultimately cause them to make dangerous choices.

We all understand that radiological scans emit radiation right? But when doctor thinks it’s necessary to diagnose a problem, I am not about to tell her “No, thank you.” This morning MSNBC staff writer Clara Moskowitz posted a great piece in response to the report from yesterday. She explained the flaws in the data and logically rationalized the increase in exposure to radiation. I was glad to have both sides of the argument represented and I respect MSNBC for that.

Yet another article was featured today regarding a new use for PET scans. Doctors who work with cancer patients may be able to tell if the treatment is working in as little as one day eventually. The NCRPM is probably cringing at the suggested regular use of these scans which are very similar to CT scans, but doctors are looking forward to reducing costs of expensive treatments that may not be working. And patients are looking forward to not having to wait six weeks to know if treatment is working.

We are left with a dilemma here. Are Americans being overexposed to radiation? The technology is here now and it can’t be undiscovered. CT scans, X-rays, and PET scans increase the quality of care we receive. Let’s look at the pros and cons.

Pros
Quicker Diagnosis of Problems
Quicker Assessment of Treatment
Discovery of Unconnected Issues
New, Less Invasive Cancer Treatment

Cons
Expense
Risk of Overexposure to Radiation (more likely that you’ll die from drowning)

Are there any other benefits? Are there any other risks? As for me, I would rather risk the exposure to radiation and know what is going on in my body. What would you choose?

Originally posted at InjuryBoard by Amber Wheat

Our Firm Obtains $4.5 Million Jury Verdict

Amber Wheat — Thu, 20 Nov 2008 18:00:47 GMT

A case study:

The verdict came down on July 2, 2008, just eight days after the trial began.

The case arose from a rear-end motor vehicle collision on November 16, 2005 involving an off-duty County of Sacramento Sherriff driving a County vehicle. Liability was not disputed. Plaintiff, 48 (now), was an estimator for Lund Construction (underground construction co.) at the time of the collision and had been working there for nearly 20 years. Before the collision he had 4 prior back surgeries (2 from comp injuries; 1 from another mvc and 1 redo surgery) with the most recent being in 1992. All the evidence established he had 13 good years with no limitations besides lifting. He had been to the doctor 2-3 times for back pain during this time. No other treatment for his back during this time. Following the collision, he had another discectomy surgery -this time at L3-4 (different level than the prior surgeries). The surgery relieved his radicular symptoms but not his back pain. He missed 5 months of work and then went back to work and worked until October 2007 when he could no longer work. A few months after his post-mvc surgery the topic of a 2 level fusion was discussed with his surgeon. He refused and wanted to try to work. Defense did not contest the surgery/treatment post MVC. Their whole defense was he : 1) should have mitigated by having the fusion earlier; and 2) he should have a 3 level fusion now and if he does he will be able to return to his desk job working full time (mitigation of future earnings). At trial, the evidence established that plaintiff did not want to have the fusion surgery and that he was not able to work given his current condition. Big dispute was over the fusion surgery, likelihood of success and whether he could return to work if he had it.

The defense and the plaintiff called expert witnesses to support their point of view:

John: Gary Nibbelink: Rehabilitation Counselor & Consultant, Sacramento, CA
John: Charles R. Mahla of Econ One Research Incorporated, Economist, Sacramento, CA
John: Tushar Goradia, M.D., Neurological Surgeon, Goradia Medical Corporation, Carmichael, CA
John: Ardvan Aslie, M.D., treating medical expert, Sacramento, CA
Defense: George Picetti, M.D., Sutter Medical Group, Orthopedic Surgeon, Sacramento, CA
Defense: Carol Hyland, Carol Hyland Rehabilitation Consultant, Vocational Rehabilitation, Lafayette, CA
Defense: Kirk Blackerby, Economist, Morgan Hill, CA

The defense attorney asked the jury to award $600,000.00 with no future wage loss. John asked for $5.5 million. The jury consisted of eight people, six women and two men. One woman was a state employee and another one was a county employee. Here is the breakdown of the award:

Medical Expenses: $75,007.40
Lost Earnings: $130,000.00
Future Medical Expenses: $325,000.00
Future Lost Earnings: $1,900,000.00
General Damages: $1,000,000.00
Future General Damages: $1,000,000.00
Joann’s Loss of Consortium: $70,000.00

Total comes to $4,500,007.40.

Following this collision and surgery, Mr. Friese missed approximately ten months, went back to work part-time for 6 weeks and then worked full-time from October 2006 until he went off completely on October 2007. He did everything he could to keep working but the pain in his low back continued to worsen to the point he could no longer work. John strongly believes the jury found him more credible because he tried to work instead of not working at all and trying to use this collision as his meal ticket.

The best part about this case was the fact that John offered the defendants a §998 offer of $1.9 million in December of 2007 that the defense passed over.

We got an article in the SacBee and were published in Verdict Search.

Originally posted at InjuryBoard by Amber Wheat

Yo-Yo Rides Recalled by Chance Rides Manufacturing

Amber Wheat — Thu, 09 Oct 2008 13:42:00 GMT

Amusement park rides are meant to give patrons a thrill, but this ride goes a bit too far. With defective and dangerous parts, the Yo-Yo ride made by Chance Rides Manufacturing was involved in two accidents. The collapse of the ride in May injured twenty-three people in Angels Camp. Back in March 2006, a malfunction at Six Flags Over Texas left nine people with bruises and strains.

Only eighty-five of the rides have been recalled, but all owners and regulators will be issued a new maintenance guide and a kit to identify potential problems.

Amusement park rides are no strange thing to California. With Disneyland, Marine World, the California State Fair, 50+ county fairs, SeaWorld, Raging Waters, Six Flags Magic Mountain, and many, many others, California has had more than its share of ride accidents. Really, when you think about it, our track record is amazing. Every year maybe only three or four people get hurt. Take a look at www.rideaccidents.com, it is kind of scary to see a whole list of accidents, but based on the number of rides out there, there really is a very low percentage of injury or death.

Amusement park rides are regulated by federal, state, and local rules (well, at least some are). I was surprised to learn that there is a difference between “amusement park rides” and “carnival rides.” Where carnival rides are regulated by the Consumer Product Safety Commission (my favorite commission), amusement park rides are “exempt from all federal safety oversight”.

Beyond that, the rules and regulations vary from state to state. California has very active public safety officials that inspect, investigate, and prepare public reports on the safety of rides, but some states only require self-inspection for ride owners, and some have no safety laws. Florida alone has state standards and then exempts its three largest parks from those standards.

The next time you go to the fair, you may want to do some research on the rides first. And take a look at the back of your ticket if you’re issued one, many times it will have a bunch of legal language in small print denying liability if you get injured at the fair.

So what recourse do you have if you are injured by an amusement park ride? I don’t know, I am not a lawyer, but I work for lawyers, so please give us a call. You do take a certain risk when you want a thrill, but you also have an expectation of walking away unharmed. It is not unreasonable to assume the rides are safe.

Originally posted at InjuryBoard by Amber Wheat

The FDA, part 2

Amber Wheat — Thu, 25 Sep 2008 16:11:33 GMT

The Food and Drug Administration is responsible for a wide range of products, but the one people think of most often is prescription drugs. As I said in my earlier post, the FDA was originally created to protect the public from products that claimed to do something it didn’t (like cure cancer, or whatnot). The FDA demanded truthful labeling and wouldn’t allow companies to say their product had a certain effect if the company couldn’t prove in clinical trials that the product really did do that.

Something that has always bothered me about medications on the market today are the side effects. At the end of the very nice commercial with people walking on the beach and getting the most out of their lives, a very quick, professional voice speaks over the picture. This disembodied voice warns of complications like “death and cancer may occur”. Death may occur? Really? Why is this medication even allowed if death may occur? Isn’t the FDA supposed to protect us from death occurring?

The answer is... kind of. The FDA knows that the product has nasty side effects, but because the maker warns us of them, it becomes our own choice to take that risk. If people living with fibromyalgia or any other condition that causes them to have to live with daily pain choose to take these medications to alleviate some of their suffering, the FDA lets them make that choice.

When decided whether or not to let a new drug into the market, the FDA looks at the benefits of the drug balanced against the risks. Remember, the FDA doesn’t do their own testing. They make their decisions based on the manufacturer’s clinical studies. It is hard to say what is worth the risk of death. I don’t live with rheumatoid arthritis or fibromyalgia or any other condition that causes people a great deal of pain, so I don’t have to make a choice like that.

It just seems like the FDA doesn’t do much to protect the public. Of course, if it was the government’s responsibility to protect people from themselves we wouldn’t have nearly as much freedom as we do now. But rules like the prohibition of releasing information on drugs that are under review by the FDA seems counterproductive. Yes, you want to preserve the privacy (and profits) of the company making the drug, but in the meantime, the public is still buying and taking the drug that, for some reason, the FDA felt the need to review. What is wrong with it? Why is it being reviewed? Should I stop taking it? Don’t we have a right to know these things?

What do you think?

Read Part 3

Originally posted at InjuryBoard by Amber Wheat

Great book on burn injuries

Ed Smith — Mon, 06 Nov 2006 16:36:17 GMT

I just finished a wonderful book which would be a great starting place for young attorney's dealing with a burn injury case. It is called BURN UNIT and is sold on Amazon.

If you are specifically interested in learning about what goes on in a burn unit or what goes on in a patient's body after they are burned, then this is an amazing book. It is very informative. The author talks about historical fires and how they contributed to medical knowledge about burns, the physiological changes that occur in a human's body after becoming burned, and the medical treatment. She also personalizes the burn unit by showing actual people who suffered a burn and showing their progress.

Another useful publication from Amazon is Nationwide Trends in burn injury Verdicts and Settlements.

Originally posted at InjuryBoard by Ed Smith

Micra Limits Everything

Steven Schultz — Tue, 18 Aug 2009 18:29:45 GMT

I recently spotted an article on the topic of MICRA (Medical Insurance Compensation Reform Act) and the need for reform. The article spoke at length about how MICRA limits pain and suffering damages to $250,000, and the need for reforms on that over 30 year old limitation.

The problem I had with the article is that it vastly understated the true extent of the limitations imposed by MICRA, and the devastating consequences those limits have on injured people. The $250,000 limit is just one of several limitations that was designed to keep money away from catastrophically injured victims, and in the hands of insurance companies.

The MICRA legislation limits the amount of economic damages that can be recovered as well. It does this by allowing doctors and hospitals to use evidence of health insurance payments to offset the amount of money victims can recover in medical bills and in lost income. It is important to note that doctors and hospitals are the ONLY group in the entire state that get this benefit, which vastly reduces the amount of money they must pay on the injuries and damages they cause. Once again private consumers are left with a less than complete recovery.

The MICRA laws also limits how the health care provider has to pay for damages they cause, even after they loose in trial. In every other type of case, the losing defendant has to pay the full amount for the past and future damages he/she causes. In a medical malpractice case, MICRA allows health care providers to periodicize the payments which means they can pay back the future damages they cause over the rest of the life of the victim, rather than all at once on the completion of the case. Even worse, in the event the victim dies earlier than expected, the balance of the future money awarded to the victim goes back to the doctor or hospital. It does not even go to the vicitm's family.

All of these limitations, and others, imposed by MICRA make it virtually impossible for injured victims to get a fair recovery for their loses. These same limits make it even more difficult for victims to find an attorney that will work on these types of cases.

It seems to me that MICRA has been around for more than 30 years. Interestingly, the problems that MICRA was designed to fix are still considered problems today (ie... high malpractice premiums; high health insurance premiums; good doctors leaving California). Maybe MICRA's ultimate effect of punishing the injured vicitms of malpractice was not the way to go, given that all of these problems still exist to this day.

All of these factors should illustrate the desperate need to reform the MICRA system and replace it with something that is fair to all sides, not just the health care providers and those who insure them.

Steve Schultz

Originally posted at InjuryBoard by Steven Schultz