Indiana Injury Lawyers Blog

Study Reveals Wide Disparity in Costs For Appendectomy Procedures

Sun, 29 Apr 2012 12:47:25 -0500

Recently, CBS News came out with some pretty amazing statistics about the wide disparity in costs for a common surgical procedure across the country. For the appendectomy, a common and often performed operation, one would expect to pay virtually the same price regardless of what part of the country the surgery was done. Not so, according to the following report, which was included in the journal Archives of Internal Medicine on Monday, April 23, 2012. Surprisingly, the findings in this report were very similar to those results from a study conducted in 66 United States and Canada hospitals, which indicated a wide disparity in charges depending on geographic location.

In a California study funded by the Robert Wood Johnson Foundation, it was revealed that the average cost of the procedure was around $33,000 but the extremes ranged from under $2,000 to more than $180,000. As would be expected, the lowest price charged a patient for the surgery was in a rural northern California town and the highest bill was for a lady who had the procedure in technology rich Silicon Valley. The patients, both female, had essentially the same number of preoperative studies done, had the type of surgical procedure and were only in the hospital for one day. The only significant difference was that the lady who had the surgery done in Silicon Valley was said to have been a cancer patient, although there was no indication of any cancer related treatment provided to her during the one day hospital stay. In the overall study, the cost disparity seemed to be related to two things, the health of the particular patient and the place where they had the appendectomy done. Those who were older with other medical problems such as diabetes, heart conditions, high blood pressure or lung issues necessitated additional workup and longer stays in the hospital than others. The other disparity was simply venue.

Data for the overall study was gathered from California hospitals for 19,368 appendectomy patients in 2009. Comparisons were made only for patients between the ages of 18 and 59, whose procedure was a standard appendectomy requiring a hospitalization of less than four days. This billing data included the hospital room, operating room, the surgical procedure, surgical supplies, other tests and medications. Examiners looked at the gross billing to the patients, prior to any health insurance company write-offs or payments, and did not have access to what the hospital actually was paid. Since the data looked at did not reveal whether any patient was covered by health insurance, the total gross billing was the amount owed to the medical care facility if they were uninsured and even under the best of circumstances hospital patients may still owe some portion of the billed amount even if they have insurance. Charges were determined to be the highest at profit oriented hospital facilities and non-profit hospitals, with the lowest charges seen at county facilities.

The results were that some disparities could be rationalized but clearly there was no rationale for one third of the cost differences. According to the International Federation of Health Plans, the average price for an appendectomy should be around $28,000.

Dr. Renee Hsia with the University of California, San Francisco, said "there's no method to the madness" and "there's no system at all to determine what is a rational price for this condition or this procedure", suggesting that the system itself was broken. Her idea is that people are not able to hospital shop when the need arises, since medical care facilities don't advertise their services and the related costs. Another physician with Dartmouth College's Center for Health Policy Research, Dr. David Goodman, deemed the findings of the study to be "very concerning." Also weighing in one the findings was Caroline Steinberg, with the American Hospital Association, who said that two people having the same procedure done in the same hospital at the same time would receive the same bill, since the real variation is where the operation is done and the hospital's costs in providing the services. Interestingly, some other countries control wide fluctuations in the costs of medical care by governmental intervention, whereas the United States favors more competition between medical care facilities. Dr. Howard Brody from the University of Texas Medical Branch in Galveston, Texas, a long time opponent of spiraling medical costs, said that unfortunately "the laws of supply and demand do not work well on health care."

April is Distracted Driver Awareness Month

Wed, 25 Apr 2012 09:19:20 -0500

On July 1, 2010, Indiana Governor Mitch Daniels signed legislation that prohibits the use of any telecommunications device to type, transmit or read text messages or emails while operating a moving motor vehicle. If caught, offenders can face a fine of up to $500.

We bring this to your attention because the U.S. Department of Transportation has declared April national Distracted Driver Awareness Month. The U.S. Department of Transportation's slogan for its third annual campaign is "One Text or Call could Wreck it All." This push is to help enact laws banning texting and hand-held cell phone use while driving.

In 2009, distracted driving killed nearly 5,500 people and injured almost half-a-million. Also in 2009, nearly 16% of all fatal automobile crashes involved distracted drivers. Cell phones, GPS units and radios can all distract drivers.

Here are a few interesting facts:

• Using a cell phone while driving delays your reaction time as much as having a blood alcohol concentration of .08, the legal limit for drunk driving.

• Drivers who use a hand-held device are 4 times more likely to get into a crash serious enough to cause injury.

• Texting drivers are 23 times more likely to get involved in a crash.

If you would like more information on distracted driving log on to the DOT's website, distraction.gov, for laws in your state and how you can help.

Report Reveals Nursing Homes Are Not Prepared For Natural Disasters

Thu, 19 Apr 2012 16:20:00 -0500

Investigators with the inspector general's office of the Health and Human Services Department have discovered that Nursing homes are ill prepared to protect their frail residents during a natural disaster. The investigation examined the number of nursing homes that met or exceeded federal emergency planning and training regulations on paper, and then went into the field to visit a sampling of 24 out of 210 facilities that had been affected by natural disasters across seven states between 2007 and 2010. The homes examined were located in California, Louisiana, Minnesota, North Carolina, North Dakota, Tennessee, and Texas, all of which had been hit with disasters. Fourteen had actually evacuated and ten remained sheltered in the facility.

While 92% of the nursing homes across the nation met federal standards for emergency planning and 72% met them for emergency training on paper, the on-site investigation revealed just the opposite. Some examples of the disturbing findings are as follows:

• None of the homes met the government recommendation for a seven day supply of drinking water if residents had to shelter in place and their regular source was unsafe or unavailable.

• 22 homes had no backup plan to replace staff members who were unable to get to work during the disaster.

• All but one of the plans failed to describe how to handle a resident's illness or death during an evacuation.

• 15 had no information about the individual medical needs of residents, such as feeding tubes or breathing equipment.

• 7 of the plans had provision about how to identify residents in an evacuation, such as wristbands.

• 15 had no provisions for matching medication lists with the residents.

• 22 had no provision for how the home would transport resident medications.

• 19 had no plan for transporting wheelchairs.

• None of the homes had a plan for the delivery of food and water for evacuated residents.

• 14 had no plan for coordinating with local emergency authorities to determine if they should evacuate or shelter in place.

Nationally, more than 3 million people spent at least some time in a nursing home during 2009, according to the latest available data. Nearly 40 percent of them, 1.2 million, were in the top 10 disaster-prone states, Texas, California, Oklahoma, New York, Florida, Louisiana, Alabama, Kentucky, Arkansas, and Missouri. During Hurricane Katrina, the vulnerability of nursing home residents was front page news when 35 residents of St. Rita's Nursing Home died in their beds, some from drowning.

As Warm Weather Returns, Use Caution When Swimming and Diving

Mon, 02 Apr 2012 13:25:17 -0500

As we quickly approach the summer months in Indiana, more people will be headed outside to swim. Although swimming can be an enjoyable pastime, it is important to be on the lookout for unexpected dangers. Oftentimes, underwater hazards and shallow water levels at popular lakes are not well marked. If there are no signs or buoys to warn swimmers, an individual merely attempting to have fun and cool off may be injured by diving into the water. Other dangerous locations for swimmers and divers include water filled rock quarries and unmarked roadway bridges.

Swimmers at community pools and lakes may also risk traumatic injury where the property is not supervised by lifeguards or is supervised in an irresponsible manner. It is also important to remember that diving boards can be one of the most dangerous features of any swimming pool. Divers and swimmers risk hitting their head on the bottom or side of the pool and sustaining an injury by falling off or hitting their head on the diving board itself. In order to prevent drowning, it is important to ensure you always swim or dive with others in a well supervised location.

In Indiana, someone who is hurt in a diving accident may be eligible to receive compensation for their medical expenses, disability, pain, suffering, lost wages, and other damages associated with the accident. Sometimes, a negligent party may also be required to pay punitive damages. Punitive damages are intended to punish and deter those who have acted illegally, maliciously, or negligently.

Unfortunately, a diving accident will often result in a spinal cord injury. A spinal cord injury occurs when one or more vertebrae are fractured, compressed, or dislocated. Spinal cord injuries can vary in severity from minor to permanently disabling. Although an injury to someone's spine may result in total paralysis, it can also leave an individual with limited sensation and control. Those who suffer from such an injury may recover partially, fully, or remain paralyzed for the duration of their lifetime. A spinal cord injury may increase an individual's sensitivity to pain, cause muscle spasms, and lead to incontinence. People who have suffered a spinal cord injury are also more apt to develop secondary medical complications. Secondary medical problems may include lung or bladder infections and bed sores. Spinal cord injuries can occur in any number of circumstances, but the most common causes are sports injuries, car accidents, shootings, and diving accidents.

In the State of Indiana, when someone is injured due to dangerous property conditions, the owner of the property or the party responsible for the property's maintenance may be held legally responsible. If you or a family member was seriously hurt in a diving accident as a result of an improperly maintained, unsafe, or poorly supervised body of water, it is a good idea to contact a knowledgeable Indiana diving accident lawyer as soon as possible.

Pediatrician Calls for Increased Research into Sports-Related Concussions in Youth

Sun, 18 Mar 2012 17:21:24 -0500

A professor of pediatrics at the University of Washington has called for more research into sports-related concussions in children and teenagers. This month, Dr. Frederick P. Rivara published an editorial in the Archives of Pediatrics & Adolescent Medicine which stated many concussions in young people are incorrectly treated as a minor injury. According to Dr. Rivara, two recent studies purportedly demonstrate children and teenagers often have lingering symptoms after experiencing a concussion.

One study, also published in the Archives of Pediatrics & Adolescent Medicine, found children continued to suffer symptoms related to a concussion from three months to one year after the initial injury. Other research published in Brain Injury found youth may demonstrate neuropsychological deficits up to one year after a head injury. Although teenagers tended to experience symptoms longer, the study concluded athletes of all ages still tend to exhibit signs of head injury six months after a concussion.

Dr. Rivara stated it can be difficult to determine when an individual has fully recovered from any head injury, even one considered minor. He also said it is often unclear to parents how long a child injured during a sporting or other event may be more vulnerable to suffering an additional concussion. Although the nation's Centers for Disease Control and Prevention created the Heads Up program in an effort to tackle youth sports-related concussions, it is reportedly unclear whether the program has been effective. Additionally, more than half of states nationwide, including Indiana, have passed youth-concussion laws. Dr. Rivara believes more research is needed in order to determine whether the laws have impacted concussion treatment in young athletes. He called on researchers, private foundations, the National Institutes of Health, and others to address the lingering symptoms of youth concussions more fully.

In the United States, an estimated 1.4 million people sustain some form of traumatic brain injury each year. Due to the serious and possibly permanent side effects, any brain injury should always be taken seriously. A seemingly minor head trauma can permanently disrupt functioning to the brain and may have a lasting impact on a hurt individual's long-term functioning. An injury resulting from a blow or jolt to the head can result in unexpected brain damage that may affect a person's sensory perception, thinking, language abilities, and emotions.

The medical expenses associated with treating a brain injury can be costly. If daily care or other assistance is required, treatment costs will rise substantially. In addition to being potentially life-altering, a brain injury may also increase an individual's risk for developing other brain conditions over time. If you or a family member have suffered a traumatic brain injury from an accident, it is a good idea to contact a qualified personal injury attorney as soon as possible.

The Complexity of Food-Related Injuries

Thu, 15 Mar 2012 10:30:58 -0500

Injuries or illnesses caused by the ingestion of contaminated food are among the most medically intense types of personal injury cases.

This is because proving causation is complicated by the facts that a) food-related illnesses typically take a few days to occur, b) require a careful retracing of the individual's food intake in the days prior to the illness, c) require complex blood and stool tests and d) often involve seeking a common link to other similar cases.

Although patient history, blood tests and stool sampling play a critical part in "proving" the existence of salmonella or other harmful bacteria, determining the source is often augmented by a local Health Department. Health Department investigations of potential food illness outbreaks are often the key to establishing an injury claim. Health Departments are able to survey multiple parties allegedly affected by a single source of contamination and work to pinpoint the cause of the illnesses. Obtaining this investigation and the testimony of health department investigators is often crucial to a making a successful injury claim against the entity that sold the contaminated food.

It is important to understand however, that just because an individual becomes ill as a result of eating potentially contaminated food, does not necessarily mean they have a "good case" to pursue. To warrant the time and expense needed to bring an injury claim the individual must have suffered significant damages or incurred a permanent injury.

Because of all this, it is important that an individual seeking compensation for a food-related injury, work with an attorney not just familiar with these type of cases, but one who also has access to the necessary medical expertise to develop a successful injury claim.

New Approach on Sports Injury Liability

Tue, 28 Feb 2012 12:45:55 -0500

The Indiana Supreme Court has given the state a new approach for determining liability in sports injury cases. Whereas liability in such cases had previously focused on the conduct of the plaintiffs (i.e., the injured party), in Pfenning v. Lineman the court ruled that it is the actions of the defendant that are paramount.

More specifically, the Court stated that:

We hold that, in negligence claims against a participant in a sports activity, if the conduct of such participant is within the range of ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law and does not constitute a breach of duty.

The ramifications are significant. First, Pfenning has removed "primary assumption of risk" from the equation, shifting the focus from the risks assumed by the injured plaintiff, to the reasonableness of the defendant tortfeasor's conduct. This eliminates all discussion concerning legal duty, and puts the focus on whether the defendant committed any acts of negligence through his or her participation in the sporting activity. Changing the analysis from a duty question to a negligence question may also open the door for claims against sporting facilities or equipment manufactures that previously were protected from claims by the primary assumption of risk doctrine. It will take time to sort out how much change Pfenning actually brings to this area of law.

In sum, Pfenning does serve to clear up a confusing and increasingly untenable series of cases governing sports injury cases. Shifting the focus to the defendant to determine if the conduct falls within the range of ordinary behavior of participants in the sport makes the legal analysis much cleaner. It also opens up the ability to argue the circumstances surrounding the injury and the conduct of the defendant. Additionally, it prevents property owners and equipment manufacturers from latching on to arguments in which they claim no duty or responsibility, thus shielding them from liability. It will be interesting

Where to Report Dangerous Intersections in Indiana

Fri, 10 Feb 2012 15:02:15 -0500

The Indianapolis Metropolitan Planning Organization recently released a list of what it considers the most dangerous intersections in Indianapolis.

Here is a list of the Top 10:

1. Binford Boulevard and Keystone Avenue
2. County Line Road and Madison Avenue
3. Post Road at 25th Street
4. Binford Boulevard and Kessler Boulevard East Drive
5. Rural Street at Pearl Street
6. Washington and East Street
7. 30th Street and Central Avenue
8. Holt Road and Morris Street
9. High School Road and Washington Street
10. 29th and Meridian Street

After witnessing several automobile accidents outside of our Indianapolis office and reporting the intersection for its poor visibility, we thought it would be important for people to know how and where to report dangerous intersections.

The Indiana Division of Transportation (INDOT) takes complaints for all state roads, US highways and interstates. If you have a concern with one of these roads, please call (317)232-5333 or fill out an online concern form at www.in.gov/indot/2330.htm.

If you have a complaint about one of the city roads in Indianapolis, contact the Mayor's Action Center at (317)327-4622 or online at www.indy.gov/egov/mayor/mac/Pages/home.aspx.

If you live outisde of Marion County and have a complaint, log on to www.in.gov to find the correct contact number for your city/county.

Obtaining Compensation for Workplace Injuries Caused by Defective Products

Wed, 25 Jan 2012 12:19:25 -0500

While working at an auto-parts manufacturing plant, a female press operator had her hand crushed and burned to the point of requiring amputation. She reached in to remove a completed part from a 30 ton rubber injection molding press when a hydraulic cylinder fractured causing the upper portion of the press to fall on her hand. She was trapped for 20 minutes before she could be extricated from the press.

Our firm discovered another machine cylinder had fractured only a few months before. The manufacturers knew about the metallurgical defects in the cylinder and the lack of safety features on the presses, yet they had not fixed the problem. Our firm developed a computer animation that showed how the failure occurred, and how it could have easily been prevented. The case was successfully resolved shortly after mediation.

Each year, thousands of people are injured or killed due to a tragic accident such as this one. Losing someone you love is always devastating, but it can be particularly overwhelming when your loved one's death resulted from a preventable accident. Generally, Indiana workers' compensation laws do not allow an employee to sue his employer for injuries sustained while on the job. If an accident was the result of a third party's negligence, however, an employee may file a lawsuit seeking damages against that party.

Defective equipment or machinery is often ultimately to blame after an industrial accident. Because a product manufacturer has a duty to deliver products free from defect, an injured worker, or his surviving beneficiaries, may file a products liability suit against a third-party equipment manufacturer over a dangerous or defective product. When evaluating a products liability claim, a court will take into account the purpose of the product or machine, whether the machine was accompanied by sufficient safety warnings, the overall utility of the product, the probability an accident might occur during regular use of the machine, and the product's projected lifetime of usefulness.

In order to succeed in a products liability case, a plaintiff generally must demonstrate a product manufacturer had a duty to provide a safe product, that duty was breached due to a defective design or manufacturing process, and the injury for which compensation is being sought directly resulted from the defect. If you or a loved one was injured due to the wrongful act or negligence of another, you may be eligible to receive compensation under Indiana law. A knowledgeable personal injury attorney can assist you in evaluating your claim.

Determining Fault in General Aviation Accidents

Tue, 17 Jan 2012 15:30:14 -0500

Determining fault in accidents involving general aviation disasters is often quite complex, requiring legal representation by attorneys who understand the world of aviation. Part of that complexity lies in the fact that the plaintiff is most often the family member of someone who may have died or been seriously injured in that crash -- an accident in which the pilot himself may not have survived. Part of that complexity also lies in the myriad of factors that may have led to the accident.

The most common of these involve piloting issues in which the flight was not planned properly (or prepared at all), a lack of fuel, stalling of the aircraft and/or a failure on the part of the pilot to handle a specific maneuver. Whether the pilot was current in his licensing and had proper medical clearance should also be examined.

General aviation usually involves smaller aircraft which do not have data or voice recording equipment installed. This requires an investigation in to what happened before the aircraft crashed. Data can be gathered from voice communications with air traffic control and by obtaining air traffic control's record of the aircraft's radar path (NTAP data). Collecting this data soon after a crash is crucial in piecing together the puzzle of what caused the crash. Voice and NTAP data is retained for a limited period of time. Thus, it is crucial that a potential plaintiff expediently seek legal counsel skilled in obtaining this evidence. The NTSB data can also be helpful in finding the cause of a crash. However, qualified aviation counsel we advise against relying solely on the NTSB to find all causes related to a general aviation disaster.

Weather is another leading cause of aviation crashes. The National Center for Climatic Data (NCDC) archives weather data and is a valuable tool for analyzing what role weather played in an aircraft crash. Weather data is used to determine if the pilot or air traffic controller should have used alternative routes to avoid dangerous conditions.

Mechanical defects in the aircraft can also lead to crashes. A detailed examination of aircraft wreckage is key to understanding if a problem existed with an aircraft engine or airframe prior to the crash. Such a wreckage inspection if conducted with trained forensic aviation experts and and can take a considerable amount of time to find and examine potential defects. Because resources helpful in determining fault can disappear if not requested early on, the most important thing a potential aviation plaintiff can do is seek qualified counsel as soon as possible.

Hosting a Personal or Corporate Holiday Party?

Wed, 07 Dec 2011 11:13:17 -0500

It's hard to believe the holidays are upon us once again. For some party hosts that means popping the top on a bottle of bubbly or spicing up the eggnog. The end of the year is a time to celebrate for many reasons, but what happens when you let your guests get too jolly? The party host could find themselves dealing with an unwanted hangover.

Individuals and employers hosting parties can be held liable in cases where a guest or third party is injured in an accident related to the alcohol consumed at the party. Hosts could be held liable for items such as vehicle repair costs, lost time from work, medical bills and even wrongful death.

Indiana law specifically states that it is unlawful for a person to provide alcoholic beverages to another person who is intoxicated if the person knows that the other person is intoxicated. Further, a person who furnishes an alcoholic beverage to a person is also liable for damages in a civil action if the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished and this is a proximate cause of death, injury or damage to a third party.

Unlike Dram Shop laws, which targets the commercial sale of alcohol, Social Host laws focus on those in control of residential places where minors and guests could consume alcohol. Thus, homeowners, landlords and tenants are all at risk. If you plan on hosting a party this holiday season, please read the list of tips provided below.

Limit guests to those you know

Provide food and non-alcoholic beverages for guests

Arrange transportation or overnight accommodations for guests

Review your insurance policy before the event to ensure proper liability coverage

Stay alert. Always remember your responsibilities as host

Arrange activities that don't require alcohol

Do not encourage excessive drinking by guests

Stop serving guests who are visibly intoxicated

We would like to wish you and your family a safe and happy holiday season and a joyous new year!

Waiver Agreements: Are They Really What You Think They Are?

Tue, 25 Oct 2011 14:46:46 -0500

The term waiver/release agreement is often used as though the mere mention of such removes all responsibility for injury or disability. In reality, how waiver agreements are written and applied is significantly more complex. In Indiana such agreements can be enforced, but you might be surprised at when they are or are not effective.

In Indiana a waiver must contain language stating that the establishment is not being held responsible for its own negligence. Without that language specifying that the company is being released for its own negligence, an injured individual can still go forward with a case if the person was injured due to lack of care on the part of the establishment. A case our law firm recently settled for an injured person dealt with a waiver signed by our client at a climbing facility. He was then injured when a bolt hanger came out of the wall, causing him to fall. He had signed a waiver, but it did not say he was releasing the climbing facility for its negligence. The case was settled successfully for the injured person at mediation.

Even in the most carefully worded document, a waiver cannot release the establishment from gross negligence, or willful and wanton misconduct---a more extreme form of misconduct in which the establishment has specific knowledge that someone may very well get hurt. Or, in simpler terms, negligence is about carelessness, while willful and wanton misconduct is about recklessness.

Racing events are typical of situations where participants usually have to sign a waiver before being allowed to race or participate. An example of a case in which a person who signed a waiver still was able to obtain compensation for injuries was a case our law firm handled years ago, in which a race team member was hurt when a racetrack employee was driving a vehicle the wrong way down pit lane. We contended that such conduct was gross negligence, worse than just regular negligence, and the waiver should not be effective to foreclose a case being brought. We were successful in settling the case before trial for the injured man.

Different states have different ways of analyzing waiver/release agreements, so any effort to evaluate the ramifications of such a waiver/release must focus on the law of the state in question. Such agreements can be valid, but it depends on the wording of the agreement, the conduct in question, and the law of the state.

Why Motorcycle Accidents Are Different

Thu, 06 Oct 2011 07:22:20 -0500

All motor vehicle accidents are not the same. And nowhere is this more true than when it comes to those accidents involving motorcycles. Further, the nuances of motorcycle accidents often have a direct impact on the kind of case that may evolve, how it is litigated, and the verdict and results ultimately obtained.

Part of the reason for these differences stem from public perceptions (and often misconceptions) about motorcycles and the people who ride them. Because of their portrayal in pop culture, motorcycles are often associated with speed and at times, even reckless driving. In addition, in an effort to justify their own actions, defendants will often claim that they "did not see" a motorcycle. Thus, should a case go to litigation, pre conceived notions of motorcycles and the ready excuses their smaller size may elicit, can create significant jury selection implications

Second, motorcycle accidents tend to cause injuries that are more likely to be of the "life-altering" variety. The complexity of such cases is further exacerbated by whether or not the cyclist was or was not wearing appropriate headgear. And more subtle injuries can often go undetected.

Third, because motorcycle insurance is harder to obtain, the complexities of a specific plan can be more difficult to decipher and have serious consequences for how financial damages are calculated or awarded.

Finally, the "data" left behind in motorcycle accidents tends to be quite subtle. This is because there are usually fewer points of impact than in the typical automobile collision and hence, less physical evidence.

So what is the individual involved in a motorcycle accident supposed to do? Most important is to work with an attorney who truly understands motorcycles and motorcycle accidents. This requires an understanding of the passion of the motorcyclist. It also means having a grasp as to how potential jurors will view both the individual as well as the activity of motorcycle driving/riding.

In addition, the injury attorney should be readily familiar with the kinds of injuries that can occur as a result of a motorcycle accident. He or she should be observant for signs of changes in memory function, balance, coordination and fine motor skills. The presence of a concussion is always a possibility and it is important that ligament injuries do not get overlooked. An evaluation by the right orthopedic specialist is absolutely essential.

Ultimately, the motorcyclist may be best served by the attorney who not only knows the law, but who can also advocate enthusiastically on his behalf.

I've Been Injured... Why Can't I Settle This Myself?

Mon, 25 Jul 2011 15:43:10 -0500

At Wilson Kehoe Winingham, prospective clients sometimes ask us whether it might make more sense for them to handle a particular matter themselves versus hiring an attorney. This is a valid question, the answer to which is dependent on a number of variables including the complexity of the case, the severity of the injuries, the size of the financial award sought, and the willingness of the individual to wade through a maze of issues with which they may not be familiar. Contrary to public perceptions, for some cases, most personal injury attorneys will suggest that a matter may best be handled by the individual themselves or by another attorney better suited to address their particular concern.

That being said, in most cases, it is usually not the wisest course to file a lawsuit alleging injury on one's own. It may be tempting for some to seek recourse by themselves, but nowhere is the adage "penny wise, pound foolish," more apropos than in such situations.

Putting together a case against another for negligence, medical malpractice, wrongful death, an automobile accident, a slip or fall, etc., is difficult. And it is difficult primarily because the world of insurance is complex. In a situation where an individual has been harmed or suffered because of the actions of another, all medical bills related to these injuries must be documented. Repayment of these medical bills must also be negotiated with the health care providers. Personal injury attorneys are adept at analyzing such documents and uncovering ways to reduce the amounts that must be repaid.

Secondly, with all of the different types of insurance packages and bundles available, individuals are often surprised to discover that they or the defendant actually has more coverage than they may have realized. Personal injury attorneys are able to analyze insurance policies and look for additional layers of coverage.

In many cases, individuals often find it difficult to make a settlement demand to an insurance company. They may not know that the law allows for compensation of more than just medical bills. They may possibly be able to receive awards for lost wages as a result of any injuries sustained. Similarly, compensation may be awarded for the pain and suffering the individual has had to endure. Whether they have lost wages or suffered emotionally and/or physically is however only one part of the equation. A second, equally important question is how one puts a financial value on these variables. An experienced PI attorney will know the criteria for establishing the need for these kinds of compensation as well as what the level of the financial award should be.

Further, it is not enough to assess what the cost of medical treatment has been or is currently. What about the future? As a result of his or her injuries, will the individual need to receive future medical care? Will they need to visit a physical therapist once a week for the rest of their lives? Will they be limited in their future earning capacity or suffer from enduring physical and/or emotional trauma? And again, how does one place a value on these?

Aside from insurance matters, determining the relative level of fault in a case is also of critical concern. If the person injured is partially to blame for his or her injury, they can only hope to receive that percentage of the financial damages that correlates to the percentage the defendant is to blame. For example, if a jury finds that the defendant is two-thirds to blame for an accident, the plaintiff can only hope to recover two-thirds of the total damages. And in Indiana, if the plaintiff is responsible for more than 50% of the accident, they are entitled to exactly nothing. Hence, before one takes on one's own case, one must ask with whom the best chance of proving the relative responsibilities for the accident rests - - with themselves, or with an experienced attorney.

The practice of personal injury law is not just about proving fault or the level of that fault, but also ensuring that the injured individual is justly compensated for his or her injuries. It's about making sure that the future financial, physical and emotional costs of those injuries are held to a minimum, whether or not that means taking on the defendant, his insurance carriers or even the carrier of the plaintiff; and whether or not it means doing so through settlement, mediation or jury trial.

Because of the complexities of all these matters, it is usually best to seek out someone qualified to look out for your best interest. It's a big and important responsibility, and one that an individual should usually not face alone. Wilson Kehoe and Winingham helps relieve this tremendous burden that individuals face after suffering an injury or losing a loved one.

Indiana's New Texting While Driving Law--What it means to the Driver

Wed, 20 Jul 2011 16:49:36 -0500

Indiana's new "Texting while Driving" law went into effect July 1 and with it comes a new slate of "do's," "don'ts," and potential penalties for hitting those little buttons on your Qwerty keyboard while (supposedly) you are also keeping your hands on the steering wheel.

Actually, that's an overstatement, because the new law applies only to texting while driving. Technically, it does not apply to dialing a telephone number or playing a game. Unlike in some other states, it also does not include any kind of regulations regarding speaking on the phone while driving.

What it does do, is provide you with the "opportunity" to pay up to a $500 fine if you are caught texting while driving. This is applicable whether or not you have been stopped for this infraction or for any other. However, the officer is not permitted to confiscate the phone.

Perhaps more importantly, it is far less clear how this new legislation will affect those lawsuits involving "texting" drivers. Although the new law is part of a nationwide movement to prohibit distractions, certain violations of statute have not been permitted as evidence of negligence, such as a failure to wear a seat belt. However, evidence of a driver being distracted usually is permitted. The courts will likely permit evidence of violating the "no texting" law in the event the one who is texting is involved in an accident.

Indiana law generally assumes that the driver of a motor vehicle has an obligation to follow the state's traffic laws and when a safety statute is enacted, a violation of that law constitutes negligence per se. In the event of an accident, this makes the plaintiff's burden much easier if the other driver was texting at or just prior to the accident. On the other hand, if it was the plaintiff who was texting, his ability to place the fault on the other driver is significantly reduced.

Regardless however of whether or not a driver involved in an accident was texting, a jury must still determine the cause of that accident. As a comparative fault state, a plaintiff may obtain any percentage of the damages awarded consistent with their determination of what percentage of fault each driver bears--but only if the jury determines that he or she is less than 50% at fault.

So what does all this mean? It means that at the least, getting caught texting while driving can result in a significant financial penalty and the possibility of heightened insurance rates. At the worst, texting while driving is likely to be an important variable in determining the degree of responsibility in an automobile accident.