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New Iowa laws help car accident victims get a fair trial

Howard Zimmerle:

Just a quick overview of some of the new Iowa Civil Procedure rules on one of my other blogs…

Originally posted on Iowa Car Accident Law and Facts:

Happy New Year!

One of the interesting things we see each new year are the new laws that go into effect. The State of Iowa adopted some new rules for smaller court cases that will help anyone who has been hurt in an accident get a fast and fair trial.

The cases that make the news are the big ones – the cases in the hundreds of thousands of dollars or in the millions of dollars… and we handle those cases. We also handle much smaller cases – and let’s face it – most auto accident cases are smaller than that. In many cases our clients simply need our help to get their medical bills paid, along with a few thousand in lost wages.

When it came time for settlement discussions, one of the hard realities was that the trial process can be expensive and can take a long time…

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Understanding Illinois’ New Settlement Statute

Illinois recently enacted a new settlement statute, with the goal of alleviating some of the hassles of the personal injury practice. 

We’ve all had cases that have settled but still sat on the shelf for weeks or months due to insurance company delays or lien issues. My partner taught me very early on that a plaintiff’s lawyer’s work isn’t nearly done when the case is settled. 

735 ILCS 5/2-2301 to the rescue*

*to the rescue like someone who calls 911, not someone who actually helps beyond that. It’s a nice statute, but it’s not wearing a cape and flying in to save anyone.

So what does the new statute do?

          1. Defendants must tender a release within 14 days of written confirmation of the settlement.

  • Practice point – after a settlement is agreed to orally, confirm it right away in writing or email. That gets the clock ticking.

          2. A settling defendant must pay all sums due within 30 days after the tender of the executed release.

  • Note that “tender” of the release means personal delivery or delivery with return receipt. In other words, drop it off or send it certified mail.

          3. The plaintiff may protect liens/subrogation interests by agreeing to hold the amount of the claimed liens/subrogation interests in his trust account until the lien/subrogation interest is resolved.

  • Why is this important? In theory, it means that if the plaintiff’s attorney sends the defendant a letter (along with the letter confirming settlement if you’re really on the ball) agreeing to protect those third party interests, there should be no need for anyone else’s name to appear on the check. Likewise, a plaintiff’s attorney can get the ball rolling with the settlement check while continuing to negotiate any liens or subrogation interests.

The scuttlebutt at the moment is that some insurance carriers are refusing to abide by the new statute – especially where Medicare is involved. The statute provides for costs and interest if the defendant does not pay in time. Not sure if that provides enough bite to keep the insurance companies from doing what they normally do, but at least it’s another arrow in the quiver. 

(Howard Zimmerle is a trial lawyer concentrating in personal injury, car accidents, medical malpractice and workers compensation. He practices in Davenport, Rock Island, Moline, Bettendorf, and most of Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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So William Shatner is doing ads for a “local” law firm – what does that mean?

A certain firm (I won’t link to them) has been flooding the Iowa airwaves with TV ads featuring William Shatner. We all love Shatner, right? He’s Captain Kirk! He’s Denny Crane! He was on that episode of the Twilight Zone where the Gremlin attacks the plane!

So if this firm could get William Shatner’s support, they must be pretty good, right?

Well, here is William Shatner shilling for some other law firms:

Some firm in Bakersfield California

This one in Virginia

This one in Detroit

You get the idea. There’s a company that cranks these ads out for law firms all over the country. Sometimes they claim to be “local” and say the name of your community when they are in, say, Wisconsin. 

That’s not to say that firms who use these ads are bad lawyers. Or good lawyers. I’m sure some are good, some are bad – all have a good advertising budget.

Just know what’s going on. Do your research when picking a lawyer. 

(Howard Zimmerle is an attorney with Warner & Zimmerle. We have offices in Rock Island Illinois and Davenport Iowa. We don’t claim to have other offices. William Shatner has never said our name, to the best of our knowledge. You can reach us at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

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Warner & Zimmerle Teams Up to Feed Illinois

This is a slightly different blog post today. It’s not legal news or trial tips. It’s a call to action.

Warner & Zimmerle has teamed up with the Illinois State Bar Association to fight hunger in our state through a fundraiser called Lawyers Feeding Illinois. 

An estimated 1.9 million (!!) people are going hungry in the state of Illinois. A $1 donation will provide 5 meals.

The statewide goal is 1 million meals – and we’re trying to do our part.

Click here to donate – even $1 helps!

(Warner & Zimmerle is a law firm in Rock Island, Illinois, helping injured people in Iowa and Illinois. They can be reached at 309-794-1660).

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New Illinois Medical Malpractice Law

Governor Quinn recently signed Public Act 97-1145 into law, changing one big thing and clarifying another big issue in Illinois medical malpractice cases.

First, attorneys fees on medical malpractice cases are now capped at 33 1/3% of the total recovery. There had previously been lower caps as case values increased. This is important for all attorneys to pay attention to for new or future cases. I think it’s a good thing, as med mal cases tend to be the toughest, longest, and most expensive cases personal injury lawyers handle.

The act finally codifies the current version of the 2-622 expert certification requirement:

(735 ILCS 5/2-622)  (from Ch. 110, par. 2-622)
    Sec. 2-622. Healing art malpractice.
    (a) In any action, whether in tort, contract or otherwise,
in which the plaintiff seeks damages for injuries or death by
reason of medical, hospital, or other healing art malpractice,
the plaintiff's attorney or the plaintiff, if the plaintiff is
proceeding pro se, shall file an affidavit, attached to the
original and all copies of the complaint, declaring one of the
following:
        1. That the affiant has consulted and reviewed the
    facts of the case with a health professional who the
    affiant reasonably believes: (i) is knowledgeable in the
    relevant issues involved in the particular action; (ii)
    practices or has practiced within the last 6 years or
    teaches or has taught within the last 6 years in the same
    area of health care or medicine that is at issue in the
    particular action; and (iii) is qualified by experience or
    demonstrated competence in the subject of the case; that
    the reviewing health professional has determined in a
    written report, after a review of the medical record and
    other relevant material involved in the particular action
    that there is a reasonable and meritorious cause for the
    filing of such action; and that the affiant has concluded
    on the basis of the reviewing health professional's review
    and consultation that there is a reasonable and meritorious
    cause for filing of such action. If the affidavit is filed
    as to a defendant who is a physician licensed to treat
    human ailments without the use of drugs or medicines and
    without operative surgery, a dentist, a podiatrist, a
    psychologist, or a naprapath, the written report must be
    from a health professional licensed in the same profession,
    with the same class of license, as the defendant. For
    affidavits filed as to all other defendants, the written
    report must be from a physician licensed to practice
    medicine in all its branches. In either event, the
    affidavit must identify the profession of the reviewing
    health professional. A copy of the written report, clearly
    identifying the plaintiff and the reasons for the reviewing
    health professional's determination that a reasonable and
    meritorious cause for the filing of the action exists, must
    be attached to the affidavit, but information which would
    identify the reviewing health professional may be deleted
    from the copy so attached.

(Howard Zimmerle is a medical malpractice lawyer in the Quad Cities of Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Quick Tip – Make Sure Your Opponent Shows Up for Trial

Interesting Iowa Supreme Court decision today. The essential holding is that a party to a civil action does not necessarily have to show up for trial if they can prove their case otherwise. Of course, in most cases, I’d strongly recommend that your client show up. 

The real takehome lesson for lawyers here is to make sure to subpoena the opposing party for trial if you need/want any of their testimony. In Illinois, one would do something similar with a Rule 237 notice. 

(Howard Zimmerle is a trial lawyer practicing in Iowa and Illinois. He represents people who have been injured in car accidents, by medical malpractice, or in many other ways. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660).

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New Case – Plaintiff Can Testify that She Did Not Seek Medical Care Because She Did Not Have Health Insurance

This is big. 

We’ve all had cases where either gaps in medical treatment or the type of medical treatment sought wasn’t quite what it could have been because the plaintiff didn’t have health insurance. 

Of course, the general rule is that either party’s financial status – and whether or not they have insurance – are inadmissible.

There is some potential unfairness whichever way this goes. If the plaintiff can’t testify that she hasn’t returned to the doctor because she can’t afford it, it might sway a jury to find in her favor. If she can’t explain why she didn’t go back to the doctor, it raises an inference that she was no longer in much pain.

A Fifth District case, Vanoosting v. Sellars, addresses these concerns, holding that the trial court erred in excluding testimony about Plaintiff’s health insurance. I think this is the right decision.

(Howard Zimmerle is a personal injury and medical malpractice attorney in Rock Island, Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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