US Supreme Court Helps Insurance Companies, Screws Injured People

The US Supreme Court decided US Airways v. McCutchen today, allowing insurance companies to write their way around the common fund doctrine and similar law, and taking money away from injured people.

Make no mistake – this is a big deal.

See, the world used to work like this:

  1. Step 1: Person gets injured.
  2. Step 2: Health insurance company pays medical bills.
  3. Step 3: Injured person hires attorney, spends time, money and effort to settle case with tortfeasor. 
  4. Step 4: Injured person pays insurance company back, but keeps a fair percentage (typically 1/3 of the lien) for the time, money effort and attorneys fees spent in obtaining the settlement to pay the insurance company back. Without that effort, the insurance company would have gotten nothing.

Now things are different.

Step 4 now reads “Injured person pays insurance company back the full amount, so long as the insurance company requires them to do so.”

In some cases this won’t be a big deal. For many, many cases, liens and attorneys fees will eat up much or all of a potential settlement – especially in tougher cases, smaller cases, or cases with inadequate insurance. This is a lot of cases.

Bummer.

(Howard Zimmerle is a personal injury attorney in the Quad Cities of Iowa and Illinois. He has offices in Davenport and Rock Island. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

 

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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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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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Filed under Illinois law, Legal News, Medical Malpractice, Tort Reform, Uncategorized

Illinois Health Care Services Lien Act – New Case

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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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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