Category Archives: Negotiations

Medicare Set-asides – Still Not Required in Liability Cases

The old rules were easily understood. Certain workers comp claims required a Medicare set-aside – and the rules for those claims were straightforward. For other claims – liability and no-fault cases – the parties were still required to satisfy Medicare’s interests out of the settlement.

For years, we’ve been told that Medicare set-asides were coming for no fault and liability cases. You’ve been to the seminars. Some attorneys and insurance companies have probably been telling you for years that this is a requirement.

They’ve been wrong. Until now?

As of October 1, 2017, CMS issued new guidance to the Secondary Payer process: MM9893. Sounds ominous, doesn’t it?

The gist of the rule is that CMS will begin to track whether there is a Liability Medicare Set-aside (LMSA) and if there is, Medicare will stop paying for diagnosis codes that should have been covered by the LMSA. Side note – they didn’t do this before? Why the heck not? I thought that was the point of LMSAs, to the extent that they existed. WTH?

The key point to remember is… that’s it. There is NO REQUIREMENT that an LMSA be set up at all. None. All this says is that if there is one, it has to be used before Medicare will pay again. I’m not just making this up – it’s in the guidance and the rule – ” Liability and NoFault MSP claims that do not have a Medicare Set-Aside Arrangement (MSA) will continue to be processed under current MSP claims processing instructions. ”

There has been no statutory change that requires LMSAs. Remember that when someone inevitably misunderstands this minor change.

Of course, don’t kid yourself – that still might happen someday.

(Howard Zimmerle is an attorney practicing injury law in Iowa and Illinois. You can reach him at 309-794-1660 or hzimmerle [at] qclawyers.com)

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Filed under Legal News, Medicare, Negotiations, Settlements, Uncategorized

Illinois Health Care Services Lien Act – New Case

(NOTE that as of 5/21/2015, Stanton v. Rea, discussed below, has been OVERRULED by the Illinois Supreme Court and is no longer good law.)

One of the great tools in a plaintiff lawyer’s arsenal in Illinois is the Health Care Services Lien Act, which reduces the amount of certain medical liens in some cases. It can really help increase the total amount your client ends up with in a settlement.

A new case from the 5th District, Stanton v. Rea, notes that the 40% of the settlement that goes to the medical lienholders should not be calculated until after costs have been subtracted from the settlement. In other words, the Act doesn’t mean 40% of the pie, it means 40% of the pie after costs. In some cases, that can make a big difference.

My partner, Mike Warner, just spoke on some new aspects of the Lien Act at the recent Rock Island County Bar Association Seminar. I think a thorough “how to” post is forthcoming.

(Howard Zimmerle is a personal injury lawyer in the Quad Cities of Iowa and Illinois, helping people who have been injured due to someone else’s fault. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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Filed under Illinois Case Law, Illinois law, Negotiations, Settlements

Why We Don’t Allow Lawsuit Loans

It happens every few months. A client needs money, and has a case with me. They contact some company (typically Oasis Legal Finance) who promises to loan them money until they settle their PI or workers comp case. If they settle soon, they won’t owe much interest, they’re told. If they don’t win, they don’t owe anything, they’re told. 

But I won’t let them take the loan. I have to sign off on it, and I won’t do it. Why not?

Simply put, the interest rates are ridiculous. Not 25% credit card ridiculous…. much, much worse.

Yesterday’s New York Times had an article about it with some examples. Anyone read that and still want one of these predatory loans?

(Howard Zimmerle practices personal injury, medical malpractice, nursing home malpractice and workers compensation law in the Iowa and Illinois Quad Cities. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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Iowa Jury Verdicts Now Partially Available for Free (But are of Limited Value)

What’s my case worth?

Any good lawyer knows that the answer to that question requires a lot of knowledge – knowledge not just about the facts of the case at hand but about which facts may drive the value of the case and why.

One valuable piece of the puzzle is to see what juries have done in the past with similar cases. Even that has its limitations. Obviously not all juries are the same. Different states, different counties, different judges, attorneys, juries, etc would lead to different results in most cases. The key when looking at jury verdicts is to look at trends and patterns.

The Iowa Bar Association now has a free searchable database of Iowa jury verdicts. It’s incomplete (missing some cases), and it doesn’t give you much information about the facts of most cases, but it’s something. Any weapons in your arsenal that can help you value cases (and convince insurance adjusters, attorneys or even your own clients) that the value you put in your demand is correct sure can’t hurt.

(Howard Zimmerle is a plaintiff’s trial lawyer practicing in Iowa and Illinois. You can reach him at (309) 794-1660 or hzimmerle [at] mjwlaw.com).

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Filed under Iowa Case Law, Negotiations, Settlements, Trial Practice, Uncategorized

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

4 ways Pawn Stars is like Personal Injury Law

Haven’t seen the show Pawn Stars yet? Time to jump on that bandwagon. It’s on the History Channel, and if you’re like me, you’re not so inclined to watch the higher channels on the cable lineup unless Flavor Flav is involved.

Watch the show

You’re missing out.

For those who haven’t seen the show, here are the basics. It follows the day to day operations of a Las Vegas pawn shop and the family who owns it (Old Man, Rick and Corey, along with Corey’s delightfully walrus-like sidekick, Chumlee). People bring in objects to pawn or sell, there is some discussion of the object and its value, and the pawn shop makes a deal (or not). Naturally the objects brought into the pawn shop are more exciting and historically significant than what I’d imagine pawn shops usually deal with (offbrand guitars, xboxes, old CDs, DVD players, etc). The real fun comes with the discussion about the historical background of the objects themselves, as well as the negotiation.

So it dawned on me. I like Pawn Stars because it reminds me of taking in personal injury cases. How? Let me count the ways:

1. To take a case or buy an item – similar calculations.

On Pawn Stars, when someone tries to sell an item, the Pawn Stars have to decide whether they will make any money from it. Seems easy, right? It’s not that simple. They have to analyze what the chances of resale are, how long an item would sit on the shelf, how much money would be put into restoration, etc to get it ready to sell (particularly true with antiques, cars and guns) and how much profit they would make. Based on this calculus (done in a split second) they decide whether to buy or sell an item.

As personal injury attorneys, we share the same considerations in deciding whether or not to take a case. Will I win? How long will it take? How much is the case worth? How much risk is there? How much will we have to invest in costs (experts, exhibits) before the case can be settled or taken to trial? We also make this internal calculation based on a phone call or two and an in-person meeting with a potential client. Sometimes we make good decisions, sometimes not.

2. We both have to watch out for red flags.

One episode showed a guy trying to sell 5 or 6 identical, mint condition Pete Rose cards. This set off red flags for the PS crew – why did he have so many? Why were they all in identical condition? Why were all of them in perfect condition? Why did he want to sell them? After a closer inspection, the cards turned out to be forgeries. We don’t know if the would-be-seller was the forger or a victim of someone else’s forgery, but it was a good catch that saved Rick some money.

In my field, I believe the vast majority of people I talk to are good people who need help. There are always a few who want to fudge the truth to get what they want. If someone’s story doesn’t make sense, or if their story is completely different each time you talk to them, beware of the counterfeit case. I’ve taken cases in, ordered the medical records, and then found out my client’s story is completely different than what actually happened. We get rid of those clients – but we have to keep a look out for them.

3. People often have an exaggerated idea what their stuff (or their case) is worth.

One feature of Pawn Stars has a quick interview snippet with a prospective seller where they say what they want to get for an object – usually something like “I have no idea what this antique coin is worth, but I’m looking to get between $2,000 and $3,000 for it today.” If you have no idea what it’s worth, where did you come up with your numbers? Is that just the amount you needed to get out of debt/pay your mortgage/buy what you really wanted? Likewise, people on the show typically overlook flaws in their items and see them with rose colored glasses.

Once again, this is no different in the law. Clients tend to overlook flaws in their cases (yet plaintiff’s attorneys should be mindful in how they discuss the flaws with their clients – focus on them too much or too strongly and the client may think you don’t believe in their case, ignore them too much and you gloss over some needed truth). Clients also have some idea what their case is worth, and sometimes it’s way, way off. The key is explaining how you get your range as to the value of the case.

4. In over your head? Call in an expert!

Several times an episode, Rick will call “a buddy of his” to evaluate an interesting piece – sometimes for authenticity, sometimes for value.

We do this all the time. We have expert witnesses in cases because we can’t possibly know everything. We use them in medical malpractice because we’re not doctors or nurses and don’t pretend to be. We use them in other cases where particular expertise is needed. We talk to other lawyers about technique, settlement value, etc. Other lawyers come to us with specific or general questions. The process is collaborative, and a lawyer who goes along totally on his or her own may get in trouble.

So there you go. Watch Pawn Stars and become a better lawyer – but remember you heard it from me first.

(Howard Zimmerle is a personal injury and accident lawyer with offices in Rock Island, Illinois and Davenport, Iowa.)

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9 Tips – Prepare Your Plaintiff for a Personal Injury Deposition

Hopefully your deposition will go better than this one

In today’s world, the deposition may be the only time a personal injury plaintiff gets to tell his/her story. Many cases settle shortly after depositions, and a good one can show attorneys and insurance adjusters just how good your case is.

The flip side is that a bad deposition can turn a great case into a loser, or at least into an uphill battle.

Here are some tips to avoid screwing up this process. It’s not an exhaustive list, but it should get your mind on the right track. If there are other tips or suggestions, let me know in the comments.

9. Explain the deposition process. Do not assume your client has any idea what a “deposition” is. I didn’t before law school. Explain that the defense attorney will ask him/her questions about the case, past medical history, work history, etc. Explain that you’ll be there with him. Explain that it will be in a conference room – possibly the same one you’re sitting in right now, and that there will be a court reporter taking everything down. You can be as detailed as you want, but try to make it a brief overview. 

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