Category Archives: Traps

Did He Really Tweet that? Careful With Social Media Evidence.

I don’t usually blog about politics or sports, but first I wanted to bring up a couple of things I found extremely newsworthy on twitter…

 

Fake barack tweet

 

Pretty sweet, huh? Didn’t even see that in the mainstream media, did you?

fake lebron tweet

 

I guess the end of the Heat’s huge win streak really took a toll on LeBron, eh?

Of course, that is only if either one of these tweets were real – which they aren’t (duh).

There’s a website that has been making the news lately called Lemmetweetthatforyou. It allows anyone to make a fake tweet under anyone else’s real twitter username. Of course, followers of President Obama and LeBron didn’t see my fake tweets, but these things can spread virally as they did recently with Heisman winner Johnny Football.

Now where does that come in for you lawyers? Obviously I know none of you are going to use this to make up fake tweets for parties in your cases “@johnnydefendant “boy, nothing better than drinking, driving, and running red lights!”. But don’t think that it can’t happen to your client. Don’t get duped by, say, your client bringing in fake social media stuff like this that they might have made in the bizarre hope that it would help their case. And if something like this happens to your client, make sure you understand it and can explain it.

Of course – and I don’t recommend this – this allows anyone to argue against any sort of twitter evidence… kinda like when R. Kelly’s lawyers used the “Little Man defense” to argue that technology has gotten to the point where someone can edit a video to put someone else’s head on someone else’s body, so therefore that sex tape wasn’t mine.

(Howard Zimmerle is a lawyer from the Quad Cities. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com. His twitter handle is @HowardZimmerle).

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IRS Clarifies Taxability of Tort Damages

The Internal Revenue Service has shed some light on the taxability of tort damages. Attorneys typically have the kneejerk response that personal injury damages are not taxable. That is only true to a point.

The new regulation clarifies a few things, namely:

  • Damages for personal injury or sickness are not taxable
  • Damages for “emotional distress” are taxable unless they are attributable to a physical injury or sickness
  • Punitive damages are taxable

The emotional distress language is important for people who handle employment law cases, false arrest, or other torts where emotional distress is recoverable but don’t typically involve physical injury or sickness.

(Howard Zimmerle is a trial lawyer from Illinois. He practices throughout western Illinois and Eastern Iowa. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com.)

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Filed under Settlements, Traps

You know those New Medicare Reporting Requirements You Always Hear About? They Have Been Bumped Back to 2012

It’s crazy. Two posts in a row talking about new 2012 requirements that scare the heck out of attorneys. (See the last one here).

This time it’s the big, scary, “new Medicare reporting requirements” that have defense lawyers in a tizzy. As you may recall, as of 2011, liability insurers were supposed to start reporting certain settlements to Medicare – known as TPOC (total payment obligation to claimant) settlements. These reporting requirements have been postponed until 2012. Good!

(Howard Zimmerle is a personal injury, medical malpractice and workers compensation lawyer with offices in Rock Island, Illinois and Davenport, Iowa. You can reach him at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Law Practice Management, Legal News, Negotiations, Settlements, Traps, Trial Practice

New Illinois Rule on Requests to Admit

Requests to Admit are a fantastic discovery/trial tool, and recent Illinois cases have eliminated a lot of the BS games attorneys used to play with them.

A change to Illinois Supreme Court Rule 216 creates some new requirements though:

1. No more than 30 RTAs can be served without agreement or court approval (including subparts). What’s a subpart? I’d look to Rule 213 and cases discussing interrogatories for guidance. (Why “RTAs” and not “Rs to A”? Sorry grammar police, I’m taking the lead of baseball and it’s constant reference to “RBIs”).

2. The following language must be included in at least 12 point boldface type:

“WARNING: If you fail to serve the response required by Rule 216 within 28

days after you are served with this paper, all the facts set forth in the requests

will be deemed true and all the documents described in the requests will be

deemed genuine.”

Several other recent changes to the Illinois Supreme Court Rules can be found here.

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Filed under Illinois Case Law, Illinois law, Traps, Trial Practice

The Defense Attorney Wants me to Sign a “HIPAA Protective Order.” Should I Do It?

I assume everyone in Illinois has seen a few purported “HIPAA Protective Orders.” (Especially if you practice in Peoria, for some reason). While I assume a lot of lawyers sign these rather blindly, is it a good idea? Is it necessary?

1. LOOK AT THE TERMS OF THE “AGREEMENT”

A lot of the time these agreements are too broad for us to feel comfortable signing. Many of them allow the defense to get all of the plaintiff or decedent’s medical records from birth to death without notice to the plaintiff’s counsel. Not every medical record should be automatically discoverable, and both HIPAA and the Illinois Subpoena procedure contemplate giving the plaintiff’s attorney the right to object.

Another place where these agreements are typically overbroad is in the area of redisclosure. Obviously a defense attorney and staff have to be able to look at the records – yet some propsed agreements allow redisclosure to “consultants”, “insurance companies” and “all others”. You need to reign this in – you don’t want your client’s medical information to end up in the wrong hands.

Finally, some of these go so far as to violate Petrillo. Do not let that happen.

2. A HIPAA PROTECTIVE ORDER IS NOT NECESSARY.

A health care provider needs one of two things before it can disclose records pursuant to a subpoena: either a qualified protective order, or a letter with certain information, as shown below. In other words, a qualified protective order is OK, but there is an easier way to get the job done.

  • A covered entity (health care provider) may disclose health care records pursuant to subpoena, but only if
    • it receives “satisfactory assurance” from the party seeking the information that the (person who the records are about) has been given notice of the request, OR
    • it receives “satisfactory assurance” from the party seeking the information that the party made reasonable efforts to secure a HIPAA qualified protective order. 45 CFR § 164.512(e)(1)(ii) 

So, in other words, a health care provider needs either a qualified protective order, or “satisfactory assurance” that notice was given. This satisfactory assurance means:

  • Written statement with accompanying documentation that:
    • The party requesting the subpoena made a food faith attempt to provide written notice to the (plaintiff);
    • The notice is sufficient to inform the (plaintiff) about the litigation and permit the plaintiff to raise an objection; and either
      • The time for objection has passed with no objection, or
      • A court ruled on any objections in favor of the party seeking the subpoena (45 CFR § 164.512(e)(1)(iii)) 

If a qualified protective order is sought instead, the only requirements are that the order:

  • Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested. 45 CFR § 164.512(e)(1)(v)(A)
  • Requires the return to the covered entity (health care provider) or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. 45 CFR § 164.512(e)(1)(v)(B) (not clear if both parties have to do that, or just the party requesting the records.)

Be very careful with these.

(Howard Zimmerle is a personal injury and medical malpractice attorney in the Quad Cities. You can contact him at hzimmerle [at] mjwlaw.com or 309-794-1660).

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Filed under Illinois Case Law, Illinois law, Medical Information, Medical Malpractice, Traps, Trial Practice, Wrongful Death

Interesting New Illinois Case on Hospital Liens and the Common Fund Doctrine

EDIT: The Illinois Supreme Court has reversed this case. Ignore everything I wrote below, and remember that you’re stuck with the Lien Act as the only means to reduce hospital and physician’s liens. – HZ 3/24/11

 

Ever wonder how you can tell you’re lame? When you write a blog post about how a case on “hospital liens and the common fund doctrine” is “interesting.” This is a far cry from the old me, who was only interested in baseball and playing guitar.

Anyway, the case (which you can find here) is from the 5th District Appellate Court. It holds that the common fund doctrine is applicable to hospital liens, and can be used to reduce the amount hospitals recover from a personal injury verdict or settlement.

Yet in a way, it’s broader than that. In a more accurate way, it’s far narrower.

By its language, the case seemingly applies Bishop v. Burgard, 198 Ill.2d 495, 509 (2009) not just to hospitals, but also to any health care provider asserting a lien against an injured party. How does this work? Here:

  1. Hospital bills patient $10,000.
  2. Case settles for, say, $100,000.
  3. Client pays $33,333.33 (or so) in attorneys fees out of the settlement proceeds.
  4. Hosptial would normally be entitled to its entire $10,000. Yet this case notes that the Hospital is only getting repaid by virtue of the attorney’s work, and would reduce the Hospital’s recovery to $6,666.66 (representing 2/3 of the total).

Ah, but it’s not that simple.

The last paragraph of the opinion is important, so hopefully trial lawyers stopped jumping up and down for a minute to read the whole case. The case takes no opinion on whether the hospital is entitled to the remaining 1/3 of its billed amount or not. THIS IS VERY IMPORTANT!

Just like the Health Care Lien Act, this looks like it would reduce a lien but not reduce the amount of the bill. The key to handling a case like this, as a plaintiff’s lawyer, is to negotiate a final settlement of the provider’s bill rather than taking your 1/3 and going home. If you don’t, your client could be billed for the remainder, sometimes weeks or months later after all of the settlement money has been spent.

(Howard Zimmerle is a car accident lawyer in Rock Island and Moline, Illinois – with a new office in Davenport Iowa.)

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Filed under Illinois Case Law, Illinois law, Medical Information, Negotiations, Settlements, Traps, Trial Practice

Traps for Iowa Lawyers

There are tons of traps for lawyers – little deadlines or rules that could easily be missed and screw up a case. Good lawyers know what they are and how to avoid them. Here’s one:

Iowa Rule of Civil Procedure 1.906 states that the clerk shall set a trial-setting conference in all cases within 90 days of filing. This conference is to be set within 150 days of filing. No problem, right?

Well what happens if you don’t get a trial setting notice? Clerks are great, hardworking, and do their jobs well, but things slip through the cracks occasionally.

The rule states that the parties are responsible for having a trial setting conference within 150 days. It doesn’t provide for a remedy if this doesn’t happen, but I wouldn’t want to find out.

(Howard Zimmerle is a trial lawyer practicing in Davenport and the surrounding areas).

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