TOP TEN RULES FOR TREATING CLIENTS:
After
practicing law for 39 1/2 years, I have certain rules that I adhere to
in representing clients. My Top Ten List is as follows:
1. Return Phone Calls and E-mails: In
dealing with prospective clients who have already retained legal
counsel, their biggest reason for dissatisfaction is the inability of
their attorney to communicate with them, especially in not returning
phone calls and e-mails. If a client calls you and leaves a message or
hits your voicemail, they deserve a reply ASAP.
2. Written Fee Agreements:
Under the Business & Professions code, lawyers are required to
reduce fee agreements to writing when representing clients in matters
wherein the fees are expected to be $1,000.00 or more, or in contingency
fee agreements, absent a preexisting arrangement or relationship with
the client. The fee agreement must also advise the client that the fee
is negotiable, and if the lawyer is not carrying malpractice insurance
then the lack of coverage must be disclosed as well.
Most
attorney fee contracts are far too long and too complicated for the
average client to understand. I have managed to keep my form retainer
agreement that I have used since I was first in practice to one page
only, and it complies with all requirements imposed on the profession by
the professional rules of conduct.
3. Monthly Billing:
Clients deserve to get a bill each month on hourly cases so they can
see what they are being billed for and address it before problems or
dissension arise down the line due to lack of periodic billing.
In
contingency fee arrangements wherein the lawyer commonly awaits a
resolution of the case before being reimbursed their out of pocket
costs, the client should still get a monthly bill so they can keep track
of the costs as they occur.
Fees and costs can often
influence the client on the course that they want to take with any claim
or case, so they need to be kept periodically informed of same in order
to make decisions that are appropriate for them.
4. Civility With Opposing Counsel: Exercising
cooperation and congeniality with opposing counsel can actually inure
to the client's benefit. When an attorney can effectively communicate
with the other party's attorney, it can help to facilitate a possible
settlement dialogue and also help to avoid needless law and motion over
discovery disputes or other issues.
5. Explain How The Law Works: Most
clients are not that familiar with the law. By explaining it to them
and how it may affect their case, clients can more easily understand how
the legal system will view the case and they will be more at ease in
following their attorney's advice.
6. Copy The Client on All Correspondence and Pleadings: Clients
have a right to be informed on the progress of their case, and by
copying a client with all significant correspondence and pleadings the
lawyer does just that.
7. Move The Case Along: Client
matters should be actively worked on, even though an immediate
resolution of the case may not be possible due to the circumstances of
the matter (i.e., awaiting a personal injury client's recovery or the
waiting time to get a trial date). Preparing a case for trial is the
best way to achieve a settlement, especially when dealing with an
insurance company.
8. Advise The Client in Writing or in Person of All Significant Events: Clients
deserve to be kept in the loop on all significant developments and
occurrences in their matter, including the formulation of a settlement
demand and important events in litigation such as depositions and
defense medical examinations. Informed clients are better able to make
decisions that will hopefully adhere to their lawyer's advice on the
subject.
9. Don't Make Promises You Can't Keep: Lawyers
should avoid making representations to prospective clients about
obtaining recoveries for certain set dollar amounts or in promising a
specific outcome if the matter is litigated. You need to live with any
given case for awhile and see how the evidence sorts out before you can
be more specific with a client as to a probable outcome. Prospective
clients should avoid retaining lawyers who sound like they are promising
the moon.
10. Treat the Client the Way You Would Want to be Treated: Lawyers
are in the service business and they should treat their clients the way
they would want to be treated if they had to retain counsel (yes,
lawyers do hire other lawyers to represent them in various matters).
People paying for service deserve service.
Thursday, March 22, 2018
Thursday, November 9, 2017
THE COLLATERAL SOURCE RULE
One of the basic tenants of tort law is that of the Collateral Source Rule (CSR). Under the CSR, the fact that an injury victim uses their own medical insurance (defined to include medical insurance, HMO benefits, automobile insurance medical payment coverage, Medi-Cal benefits, Medicare benefits, VA benefits or any coverage of medical bills by a collateral source) to cover their medical bills does not result in a credit to the tortfeasor for the amount of such payments.
The tortfeasor (and their liability insurance carrier) remain liable for the full amount of the reasonably incurred medical bills, and without credit for the fact that the injury victim's collateral sources have paid all or part of the bills.
The only limitation on the CSR in regard to medical bills is that the tortfeasor is never responsible for more than the "adjusted" amount of the bills, that being the net sum that the medical care provider has accepted as payment in full from either the injury victim and/or their collateral source, as opposed to what the gross amount of the bill is.
The rationale for the CSR is that the tortfeasor should not benefit from the prescience of their victim in having the forethought to have collateral source coverage.
Most collateral sources have reimbursement rights (aka "subrogation") for the amount of the benefits expended should the injury victim obtain a settlement or recovery, so that is another reason that the tortfeasor should not receive credit for collateral source payments.
The CSR also applies to claims for loss of earnings or wages due to having been injured. As such, if the injury victim receives state disability benefits, private disability benefits, or sick pay benefits from their employer, the tortfeasor does not receive credit for such payments.
One interesting wrinkle to the applicability of the CSR to disability retirement income benefits was recently addressed by myself in an article that I authored in the Fall 2017 issue of The Gavel, the official publication of the Orange County Trial Lawyers Association.
The article is reprinted on my website at http://www.stridlaw.com/gazette.php
Wednesday, July 19, 2017
Bad Neighbor Cases
A not uncommon inquiry that I receive from prospective clients deals with issues involving abusive or obnoxious neighbors, or what is generically referred to as a "bad neighbor" case.
The typical case involves a homeowner or renter who has problems with an adjacent next door or across the street neighbor, the latter of whom engages in a consistent pattern of harassment. Common complaints include making false police reports, abusive/offensive language, undue noise, parking issues, unruly kids, dumping debris across property lines, and petty vandalism.
Many of these prospective clients want to seek a restraining order (RO), but this is a difficult remedy to obtain, much less to fashion. To obtain a RO, the complainant must prove by clear and convincing evidence (a much higher burden than the usual "preponderance of the evidence" that is the norm in most civil actions) that unlawful harassment has occurred.
Unlawful harassment means much more than somebody taking offense at an obnoxious person -- it requires evidence of stalking, physical violence, or a reasonable apprehension of physical violence. You can't get a RO just because you don't like somebody.
As imposition of a RO can have negative consequences against the person that is being restrained, so most judges will require proof of something that equates with actual criminal behavior. Imposition of a RO can result in loss of firearm possession or a negative reference in a background check, not to mention the imposition of criminal penalties (fines and incarceration) if subsequent violation of a RO is proven, so judges require a clear showing of unlawful harassment before they will impose so drastic a remedy.
The usual RO will require the offending party to stay a certain distance from the party seeking the relief, i.e., "come no closer than 300 yards and do not contact that person". However, in a "bad neighbor" context, where the offending party lives across the street or next door, such stay away orders are nearly impossible to impose given the proximity of the parties to each other.
The filing of false police reports is also difficult to remedy, as a civil action for damages based on such a theory may embroil the plaintiff at the wrong end of an anti-SLAPP motion under C.C.P. sec. 425.16 (this subject is beyond the scope of this blog, but information on it can be found in The Legal Gazette section of www.stridlaw.com) and which could find the plaintiff being ordered to pay for the defendant's attorney's fees and costs.
This is because the filing of a police report is a First Amendment exercise in petitioning the government for redress of grievances. Suing in civil court for damages for activity that falls within the First Amendment is a major uphill battle.
Unfortunately, the law is of limited use in the context of a bad neighbor case. The party suffering such problems may often be better served by retaining a realtor, as opposed to an attorney.
Bottom-line: you don't have to love your neighbor, but you should go to reasonable lengths to avoid a confrontation with same, even if you don't want to.
The typical case involves a homeowner or renter who has problems with an adjacent next door or across the street neighbor, the latter of whom engages in a consistent pattern of harassment. Common complaints include making false police reports, abusive/offensive language, undue noise, parking issues, unruly kids, dumping debris across property lines, and petty vandalism.
Many of these prospective clients want to seek a restraining order (RO), but this is a difficult remedy to obtain, much less to fashion. To obtain a RO, the complainant must prove by clear and convincing evidence (a much higher burden than the usual "preponderance of the evidence" that is the norm in most civil actions) that unlawful harassment has occurred.
Unlawful harassment means much more than somebody taking offense at an obnoxious person -- it requires evidence of stalking, physical violence, or a reasonable apprehension of physical violence. You can't get a RO just because you don't like somebody.
As imposition of a RO can have negative consequences against the person that is being restrained, so most judges will require proof of something that equates with actual criminal behavior. Imposition of a RO can result in loss of firearm possession or a negative reference in a background check, not to mention the imposition of criminal penalties (fines and incarceration) if subsequent violation of a RO is proven, so judges require a clear showing of unlawful harassment before they will impose so drastic a remedy.
The usual RO will require the offending party to stay a certain distance from the party seeking the relief, i.e., "come no closer than 300 yards and do not contact that person". However, in a "bad neighbor" context, where the offending party lives across the street or next door, such stay away orders are nearly impossible to impose given the proximity of the parties to each other.
The filing of false police reports is also difficult to remedy, as a civil action for damages based on such a theory may embroil the plaintiff at the wrong end of an anti-SLAPP motion under C.C.P. sec. 425.16 (this subject is beyond the scope of this blog, but information on it can be found in The Legal Gazette section of www.stridlaw.com) and which could find the plaintiff being ordered to pay for the defendant's attorney's fees and costs.
This is because the filing of a police report is a First Amendment exercise in petitioning the government for redress of grievances. Suing in civil court for damages for activity that falls within the First Amendment is a major uphill battle.
Unfortunately, the law is of limited use in the context of a bad neighbor case. The party suffering such problems may often be better served by retaining a realtor, as opposed to an attorney.
Bottom-line: you don't have to love your neighbor, but you should go to reasonable lengths to avoid a confrontation with same, even if you don't want to.
Thursday, March 30, 2017
STRATEGIES IN CLAIMING MEDICAL BILLS AS DAMAGES IN A BODILY INJURY CLAIM:
Over the past number of years, a series of groundbreaking case decisions have seriously affected both the amount and the procedure for a claimant in a bodily injury case to seek damages for their medical bills incurred to treat the injury.
Under a line of decision which may be generally referred to as the Hanif/Howell progeny of cases (see my blog from 2014 as to how this case law evolved), a claimant can only claim as economic damages the full amount billed by any given healthcare provider if there have been no payments made on the bill from a collateral source, such as the claimant's own medical insurance. If there have been any payments from the claimant's own medical insurance and the provider has adjusted their charges in reciprocity for being paid, then the maximum amount that the claimant can claim as damages is the adjusted amount received by the provider as payment in full (i.e., the amount paid by the claimant's own medical insurance plus any out of pocket co-pays or deductibles personally borne by the claimant).
As most healthcare providers will routinely adjust their total charges in order to get timely payment from medical insurance, this will reduce the amount that the claimant can otherwise claim as damages. For the reasons stated hereafter, this is not necessarily a negative thing. Under what is known as the Collateral Source Rule, the fact that the claimant's own medical insurance paid some of the bills is not admissible as evidence at trial, nor does the defendant get a credit against what they are legally responsible for in medical expense damages just because the claimant's own medical insurance paid down the bills.
The public policy upholding the Collateral Source Rule is that the negligent defendant should not benefit from the claimant's prescience in having health insurance to begin with.
The plaintiffs' trial bar has had a difficult time in accepting the Hanif/Howell restrictions on what amounts can be claimed as medical damages in light of the above. This is especially true where the claimant's medical expenses have been paid down via a governmental assistance source like Medi-Cal or Medicare, and which pay the provider pennies on the dollar as payment in full.
In the experience of this practitioner, many plaintiffs' attorneys will counsel their clients NOT to use their own medical insurance, or alternatively won't even apprise their clients of the impact of Hanif/Howell on their claim, much less of what may happen if the recovery at trial isn't sufficient to cover the unpaid medical bills.
In the opinion of this practitioner, in order to protect the client the attorney should always counsel the client to use their own medical insurance (or governmental assistance program) to pay down their bills, to the extent that they have coverage and the healthcare provider will accept it.
There are three (3) basis reasons behind this approach:
1. Even when liability in a personal injury case is clear, there is no guarantee that a plaintiff will recover any damages at all if the case goes to trial. If the plaintiff still owes medical bills for treatment of their injuries and the bills were not submitted to their medical insurance carrier in a timely fashion, then if they get nothing or an amount less than the bills at trial then they will be left holding the bag for personal responsibility for paying same. Medical insurance companies require timely submission of bills as a condition of extending coverage benefits.
2. Given the Hanif/Howell authorities, some trial judges may allow the introduction into evidence at trial of the plaintiff having available medical insurance, at least if it has not been utilized. This is because the plaintiff has an affirmative legal duty to mitigate their damages, and the defendant will argue that they did not do so by not using their own medical insurance. This type of evidence, if admitted, would give the defendant the argument that the plaintiff should get nothing in damages for their medical bills, and will cast the plaintiff in an unfavorable light in front of
a jury.
3. Whether medical insurance is used or not, the defendant's obligation to pay economic damages for medical bills is limited only to those bills that are "reasonable and necessary". There is even a jury instruction on this point. When the bills haven't been submitted to medical insurance and the provider is treating solely on a lien basis, then many such providers will commonly "jack up" the amount of the bills given the fact that they may not be paid for as long as a year down the line, and they expect the plaintiff's attorney to try and negotiate with them after the case is resolved to take a lesser amount as payment in full. Such inflated lienholder bills are harder to characterize as being "reasonable and necessary". The argument becomes easier for the plaintiff to make if the bills have been adjusted downwards due to payment being made by their own medical insurance carrier.
It is somewhat of an open question as to whether it constitutes legal malpractice for a plaintiff's attorney to counsel their client not to use their own medical insurance to pay down their bills. But at the very least, it is potentially very dangerous for the plaintiff not to do so. The attorney should explain to the client the potential pitfalls of not doing so.
Attorneys should err on the side of caution and put their client's case and financial situation in the best possible position, especially if the matter does not turn out so favorable for the client in the long run.
Over the past number of years, a series of groundbreaking case decisions have seriously affected both the amount and the procedure for a claimant in a bodily injury case to seek damages for their medical bills incurred to treat the injury.
Under a line of decision which may be generally referred to as the Hanif/Howell progeny of cases (see my blog from 2014 as to how this case law evolved), a claimant can only claim as economic damages the full amount billed by any given healthcare provider if there have been no payments made on the bill from a collateral source, such as the claimant's own medical insurance. If there have been any payments from the claimant's own medical insurance and the provider has adjusted their charges in reciprocity for being paid, then the maximum amount that the claimant can claim as damages is the adjusted amount received by the provider as payment in full (i.e., the amount paid by the claimant's own medical insurance plus any out of pocket co-pays or deductibles personally borne by the claimant).
As most healthcare providers will routinely adjust their total charges in order to get timely payment from medical insurance, this will reduce the amount that the claimant can otherwise claim as damages. For the reasons stated hereafter, this is not necessarily a negative thing. Under what is known as the Collateral Source Rule, the fact that the claimant's own medical insurance paid some of the bills is not admissible as evidence at trial, nor does the defendant get a credit against what they are legally responsible for in medical expense damages just because the claimant's own medical insurance paid down the bills.
The public policy upholding the Collateral Source Rule is that the negligent defendant should not benefit from the claimant's prescience in having health insurance to begin with.
The plaintiffs' trial bar has had a difficult time in accepting the Hanif/Howell restrictions on what amounts can be claimed as medical damages in light of the above. This is especially true where the claimant's medical expenses have been paid down via a governmental assistance source like Medi-Cal or Medicare, and which pay the provider pennies on the dollar as payment in full.
In the experience of this practitioner, many plaintiffs' attorneys will counsel their clients NOT to use their own medical insurance, or alternatively won't even apprise their clients of the impact of Hanif/Howell on their claim, much less of what may happen if the recovery at trial isn't sufficient to cover the unpaid medical bills.
In the opinion of this practitioner, in order to protect the client the attorney should always counsel the client to use their own medical insurance (or governmental assistance program) to pay down their bills, to the extent that they have coverage and the healthcare provider will accept it.
There are three (3) basis reasons behind this approach:
1. Even when liability in a personal injury case is clear, there is no guarantee that a plaintiff will recover any damages at all if the case goes to trial. If the plaintiff still owes medical bills for treatment of their injuries and the bills were not submitted to their medical insurance carrier in a timely fashion, then if they get nothing or an amount less than the bills at trial then they will be left holding the bag for personal responsibility for paying same. Medical insurance companies require timely submission of bills as a condition of extending coverage benefits.
2. Given the Hanif/Howell authorities, some trial judges may allow the introduction into evidence at trial of the plaintiff having available medical insurance, at least if it has not been utilized. This is because the plaintiff has an affirmative legal duty to mitigate their damages, and the defendant will argue that they did not do so by not using their own medical insurance. This type of evidence, if admitted, would give the defendant the argument that the plaintiff should get nothing in damages for their medical bills, and will cast the plaintiff in an unfavorable light in front of
a jury.
3. Whether medical insurance is used or not, the defendant's obligation to pay economic damages for medical bills is limited only to those bills that are "reasonable and necessary". There is even a jury instruction on this point. When the bills haven't been submitted to medical insurance and the provider is treating solely on a lien basis, then many such providers will commonly "jack up" the amount of the bills given the fact that they may not be paid for as long as a year down the line, and they expect the plaintiff's attorney to try and negotiate with them after the case is resolved to take a lesser amount as payment in full. Such inflated lienholder bills are harder to characterize as being "reasonable and necessary". The argument becomes easier for the plaintiff to make if the bills have been adjusted downwards due to payment being made by their own medical insurance carrier.
It is somewhat of an open question as to whether it constitutes legal malpractice for a plaintiff's attorney to counsel their client not to use their own medical insurance to pay down their bills. But at the very least, it is potentially very dangerous for the plaintiff not to do so. The attorney should explain to the client the potential pitfalls of not doing so.
Attorneys should err on the side of caution and put their client's case and financial situation in the best possible position, especially if the matter does not turn out so favorable for the client in the long run.
Tuesday, April 8, 2014
MEDICAL BILLS AS DAMAGES IN A PERSONAL INJURY CLAIM
The subject of what you can claim in personal injury cases as damages for medical bills has received a lot of attention in the CA appellate courts over the past several years. There have been hotly contested issues wherein the concept of the Collateral Source Rule, and which generally holds that the defendant does not get credit for payment of the plaintiff's medical bills by the plaintiff's own medical insurance, has been at odds with situations wherein a given healthcare provider has accepted payment in full from the plaintiff's medical insurance for less than the full amount of its bill, a not uncommon occurrence in the age of managed healthcare.
The appellate decisions have moved to a point where the plaintiff now cannot recover an amount greater than what the healthcare provider accepted from the medical insurance as payment in full, as opposed to recovering the full amount of the bill.
I authored an article on this subject entitled "Biting The Bullet -- Medical Bills In A Post Howell-Corenbaum World" that was published by the Orange County Trial Lawyers Association in the Spring 2014 of its journal The Gavel, as follows hereafter:
BITING THE BULLET: MEDICAL BILLS IN A POST
HOWELL-CORENBAUM WORLD
NOTE: This article was authored by Lawrence A. Strid and was published in the Spring 2014 edition of the Orange County Trial Lawyer’s publication “THE GAVEL”. The article is copyrighted to the OCTLA but is being republished with their permission.
Any prudent personal injury practitioner is aware of the groundbreaking precedent established in
Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, holding that a plaintiff in a personal injury claim cannot claim more for past economic damages for medical expenses than what the healthcare provider accepted from a collateral source as payment in full, be the collateral source the patient’s own medical insurance company or a co-payment directly paid or owed by the patient themself.
The ruling in Howell was an extension of a similar ruling in the equally ground-breaking case of Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, and which dealt with a plaintiff’s medical expenses being adjusted and then paid by Medi-Cal. Despite Hanif being limited on its facts to a Medi-Cal beneficiary, many liability carriers in evaluating bodily injury claims post-Hanif would only consider the adjusted medical expenses, regardless of the nature of the collateral source provider, to the general consternation of the plaintiffs’ bar thereafter.
Similar to Hanif, the case of Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, was usually cited in conjunction with Hanif by the defense in attempting to limit claims for medical bills to what the provider received and accepted as payment in full, prior to the Supreme Court ruling in Howell.
Howell did not directly address the admissibility at trial of the full amount of the medical charges as billed, and inferred that such evidence might still be admissible in order to prove whether the claimed medical expenses were reasonable and necessary. See Howell, supra, at 52 Cal.4th 577-578.
Accordingly, in a post-Howell era, most plaintiffs’ attorneys attempted to submit evidence at trial of the full amount of the medical charges as billed, and then dealt with the pertinent Howell reduction by stipulation or a motion post-verdict.
Attorneys who took this approach would rely on pre-Howell case authority, with some cases holding that the full amount of medical charges as billed were still relevant as to an assessment of non-economic damages. For example, see Greer v. Buzgheia (2006) 141 Cal.App. 4th 1150, 1157; and Nishihama, supra, at 93 Cal.App..4th 309.
That approach was dealt a death-blow by the subsequent ruling in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308. Further clarifying the ruling in Howell, the court in Corenbaum held that evidence of the full amount of the medical charges as billed is simply not relevant to the determination of the plaintiff’s economic damages at trial, and that evidence of the adjusted amount accepted by the healthcare providers from a collateral source is not made inadmissible by the collateral source rule so long as the source of the payment is not disclosed.
Corenbaum further held that evidence of the full amount of billed charges vs. the adjusted charges after receiving payment from a collateral source would only serve to confuse the jury, and was not relevant to proving non-economic damages or future medical expenses. Corenbaum, supra, at 215 Cal.App.4th 1329.
Historically in personal injury practice, the amount of a plaintiff’s medical expenses has usually been the “barometer” of the value of any given personal injury case – the greater the amount of the bills, then arguably the greater the severity of the injury; and the greater the severity of the injury, then the more the case was theoretically worth. While it may have been an urban legend to some degree, surely every personal injury attorney (and even some non-lawyers) have heard the old adage about any injury case being worth at least “three times the meds”.
When collateral insurance adjusts a provider’s bills, the results can often be dramatic in the reduction of the medical charges that would be admissible at trial – reductions of 50% or greater are not uncommon, and if a public benefit collateral source is involved, such as Medicare or Medi-Cal, then the amount of admissible medical charges may end up being ten cents on the dollar. Worst of all are those patients who belong to certain HMOs, where the charges incurred with their primary physician may be “capitated” down to zero or a nominal co-pay.
The law is therefore clear on the limits of what the plaintiff can claim for medical expenses. The bigger question that this article intends to address is whether this application of the law is being followed by the plaintiffs’ bar.
In the personal experience of this practitioner as derived from being an arbitrator at court ordered arbitrations, as a designated neutral in mediation sessions, and as a settlement officer at settlement conferences conducted at Orange County Superior Court, most plaintiffs’ attorneys still present evidence of the full amount of medical charges billed, and ignore any adjustments called for by Howell and Corenbaum.
Many of these plaintiffs’ attorneys do not even have the amounts of the adjusted medical bills set forth in their briefs or settlement statements, much less being able to relay what that adjusted number is when confronted with that question. Rest assured that defense counsel and the adjuster have this information calculated down to the near penny.
The only reasons that this practitioner can envision as to why a plaintiff’s attorney would not have the adjusted medical expenses itemized at their disposal would be that (1) they are hoping that the defense carrier and their counsel have never heard of the holdings in Hanif, Howell, and Corenbaum; (2) it is too much work to review the bills and explanation of benefits and calculate the adjusted medical expenses yourself; and/or (3) it is easier to rely on the defense to provide the adjusted medical expenses and hope that their figures are correct.
None of these reasons make any sense, and the failure of the plaintiff’s attorney to directly deal with the adjusted medical expenses will mean that a critical aspect of the value of the case is being ignored, and it can also leave a less than favorable impression with the defense carrier’s perspective on the expertise of the plaintiff’s attorney.
If there is a bright side to this development in the law for the plaintiff’s bar, it might be that it is now easier to argue that the medical expenses are reasonable and necessary, after they have been adjusted. Moreover, some defense attorneys will stipulate at trial as to the amount of the adjusted figure so that the custodians of record of the various providers don’t have to come to trial to testify, and the evidence for the total adjusted expenses can then be reduced to a written summary that the plaintiff’s testifying physician can lay a foundation for, so that just the summary alone can come into evidence.
Notwithstanding the writing on the wall as to the admissible amount of past medical expenses, some plaintiff’s practitioners have been creative in attempting to circumvent it, in one of two methods: (1) counseling the client not to utilize their medical insurance to defray their past medical bills; and (2) utilizing a “factoring” company to assume legal title to the bills. Both of these approaches leave much to be desired and a lot to risk for both the plaintiff and their attorney.
Insofar as not billing the client’s medical insurance, this issue would probably not arise to the extent that a client requires emergency medical treatment, and at which time they are more interested in seeing a physician on an emergency care basis versus immediately consulting with an attorney. Most emergency care providers collect the patient’s medical insurance information as a condition of admission, and automatically bill the carrier thereafter. Few clients, if any, would be aware of the consequences of Howell and Corenbaum until after they have consulted with counsel.
As to non-emergency care providers that the client may see thereafter, if the client has applicable medical insurance that would defray all or part of such expenses, it is the opinion of this practitioner that an attorney who advises their client not to utilize their insurance is most likely doing their client a disservice, and may be setting themselves up for a legal malpractice case down the road.
As the saying goes, there are only two things in life that are certain, and the end result of a legal claim or a personal injury lawsuit do not fall into either of those two categories. Most policies of medical insurance require that the bills be submitted to the insurer in a set window of time to qualify for benefits, and the majority of most mainstream healthcare providers will not take a lien. Many healthcare providers that will not take a lien will send the account out to collection if no payment is forthcoming in a fixed period of time, and which may lead to a negative credit history report, collection agency activity with inflated interest charges being tacked onto the bill, or even a collection lawsuit being filed against the client.
Meanwhile, the client’s claim or legal case grinds on, with the eventual monetary outcome never a certainty until it occurs. As any attorney knows, there are any number of myriad reasons as to why cases are lost or under-compensated for in the claims and litigation arena. If the end monetary result is less than sufficient to satisfy outstanding medical bills that the attorney has advised their client not to submit to their insurance, and then it is too late to do so thereafter, then the attorney will be a natural target of blame by the client, had timely billed charges to their medical insurance been counseled and then satisfied in whole or in part by their medical insurance.
In addition, the personal injury victim has an obligation to mitigate their damages, and a failure to submit medical expenses to an insurance carrier that may have satisfied such expenses may leave the client’s case vulnerable to this argument.
The other mode that may be used to avoid the ramifications of the adjusted medical billing is to have the full amount of the bills assigned to a factoring company, and then the attorney negotiates with the factoring company after the settlement to try and reach some sort of compromise on what it will take to satisfy same.
This latter approach was recently addressed in the recent case of Dodd v. Cruz (Second Appellate District, February 5, 2014) __Cal.Rptr.3d __, WL 461158, LEXIS 118.
In Dodd, a plaintiff involved in a motor vehicle accident had shoulder surgery performed on a lien at a surgery center. This provider then sold the lien to a factoring company. The defendant attempted to subpoena the records from the factoring company to determine what was paid on the assignment of the lien. The factoring company refused to comply, objecting on the basis of confidentiality, proprietary concerns, and relevance.
The trial court granted its motion to quash, but on appeal the appellate court reversed, citing both Howell and Corenbaum, in holding that the amount paid for the provider’s account receivable was reasonably calculated to lead to the discovery of admissible evidence as to the reasonable value of the medical services provided. Whether or not such evidence would be admissible, it could be relied on by expert witnesses to opine what the reasonable charges should be.
In Dodd , the president of the factoring company was the plaintiff’s own attorney, and which adds another interesting hair in the ointment insofar as a potential conflict of interest may be concerned. Furthermore, one of the surgical center’s limited partners was the brother of the factoring company’s vice-president.
From this practitioner’s perspective, attorneys counseling clients not to use their medical insurance or for the attorney to be directly (or even indirectly) involved in assignments of medical liens, just to avoid the ramifications of Howell and Corenbaum, are creating liability scenarios for themselves and pitfalls for their client’s case.
There have been other changes in the law over the passage of time that have not been plaintiff friendly: the passage of MICRA; the Fair Responsibility Act codified in Civil Code secs. 1431.1 and 1431.2; the demise of Becker v. IRM Corp.; and other changes in codes and case law have sometimes curtailed the ability of some injured parties to obtain full or certain types of compensation, given the fact situation of any given case.
Notwithstanding this, injured parties can still obtain compensation given the facts and coverage applicable to any injury incident, and the plaintiff personal injury bar shows no immediate sign of dropping personal injury cases and trying to practice family law or immigration law as a fall-back practice after the rulings enunciated in Hanif, Howell, and Corenbaum.
From the perspective of this practitioner, it is best to “bite the bullet”: calculate and present the adjustment on the medical bills to the defense carrier and defense attorney (including any calculation thereof in response to a defendant’s form interrogatories), to any neutral presiding over a settlement conference or mediation, and to the ultimate trier of fact. Put the best slant possible on your client’s case given the other factors in the case that would be an argument for greater value being placed on the matter – it is all any self-respecting plaintiff’s attorney can do.
The appellate decisions have moved to a point where the plaintiff now cannot recover an amount greater than what the healthcare provider accepted from the medical insurance as payment in full, as opposed to recovering the full amount of the bill.
I authored an article on this subject entitled "Biting The Bullet -- Medical Bills In A Post Howell-Corenbaum World" that was published by the Orange County Trial Lawyers Association in the Spring 2014 of its journal The Gavel, as follows hereafter:
BITING THE BULLET: MEDICAL BILLS IN A POST
HOWELL-CORENBAUM WORLD
NOTE: This article was authored by Lawrence A. Strid and was published in the Spring 2014 edition of the Orange County Trial Lawyer’s publication “THE GAVEL”. The article is copyrighted to the OCTLA but is being republished with their permission.
Any prudent personal injury practitioner is aware of the groundbreaking precedent established in
Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, holding that a plaintiff in a personal injury claim cannot claim more for past economic damages for medical expenses than what the healthcare provider accepted from a collateral source as payment in full, be the collateral source the patient’s own medical insurance company or a co-payment directly paid or owed by the patient themself.
The ruling in Howell was an extension of a similar ruling in the equally ground-breaking case of Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, and which dealt with a plaintiff’s medical expenses being adjusted and then paid by Medi-Cal. Despite Hanif being limited on its facts to a Medi-Cal beneficiary, many liability carriers in evaluating bodily injury claims post-Hanif would only consider the adjusted medical expenses, regardless of the nature of the collateral source provider, to the general consternation of the plaintiffs’ bar thereafter.
Similar to Hanif, the case of Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, was usually cited in conjunction with Hanif by the defense in attempting to limit claims for medical bills to what the provider received and accepted as payment in full, prior to the Supreme Court ruling in Howell.
Howell did not directly address the admissibility at trial of the full amount of the medical charges as billed, and inferred that such evidence might still be admissible in order to prove whether the claimed medical expenses were reasonable and necessary. See Howell, supra, at 52 Cal.4th 577-578.
Accordingly, in a post-Howell era, most plaintiffs’ attorneys attempted to submit evidence at trial of the full amount of the medical charges as billed, and then dealt with the pertinent Howell reduction by stipulation or a motion post-verdict.
Attorneys who took this approach would rely on pre-Howell case authority, with some cases holding that the full amount of medical charges as billed were still relevant as to an assessment of non-economic damages. For example, see Greer v. Buzgheia (2006) 141 Cal.App. 4th 1150, 1157; and Nishihama, supra, at 93 Cal.App..4th 309.
That approach was dealt a death-blow by the subsequent ruling in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308. Further clarifying the ruling in Howell, the court in Corenbaum held that evidence of the full amount of the medical charges as billed is simply not relevant to the determination of the plaintiff’s economic damages at trial, and that evidence of the adjusted amount accepted by the healthcare providers from a collateral source is not made inadmissible by the collateral source rule so long as the source of the payment is not disclosed.
Corenbaum further held that evidence of the full amount of billed charges vs. the adjusted charges after receiving payment from a collateral source would only serve to confuse the jury, and was not relevant to proving non-economic damages or future medical expenses. Corenbaum, supra, at 215 Cal.App.4th 1329.
Historically in personal injury practice, the amount of a plaintiff’s medical expenses has usually been the “barometer” of the value of any given personal injury case – the greater the amount of the bills, then arguably the greater the severity of the injury; and the greater the severity of the injury, then the more the case was theoretically worth. While it may have been an urban legend to some degree, surely every personal injury attorney (and even some non-lawyers) have heard the old adage about any injury case being worth at least “three times the meds”.
When collateral insurance adjusts a provider’s bills, the results can often be dramatic in the reduction of the medical charges that would be admissible at trial – reductions of 50% or greater are not uncommon, and if a public benefit collateral source is involved, such as Medicare or Medi-Cal, then the amount of admissible medical charges may end up being ten cents on the dollar. Worst of all are those patients who belong to certain HMOs, where the charges incurred with their primary physician may be “capitated” down to zero or a nominal co-pay.
The law is therefore clear on the limits of what the plaintiff can claim for medical expenses. The bigger question that this article intends to address is whether this application of the law is being followed by the plaintiffs’ bar.
In the personal experience of this practitioner as derived from being an arbitrator at court ordered arbitrations, as a designated neutral in mediation sessions, and as a settlement officer at settlement conferences conducted at Orange County Superior Court, most plaintiffs’ attorneys still present evidence of the full amount of medical charges billed, and ignore any adjustments called for by Howell and Corenbaum.
Many of these plaintiffs’ attorneys do not even have the amounts of the adjusted medical bills set forth in their briefs or settlement statements, much less being able to relay what that adjusted number is when confronted with that question. Rest assured that defense counsel and the adjuster have this information calculated down to the near penny.
The only reasons that this practitioner can envision as to why a plaintiff’s attorney would not have the adjusted medical expenses itemized at their disposal would be that (1) they are hoping that the defense carrier and their counsel have never heard of the holdings in Hanif, Howell, and Corenbaum; (2) it is too much work to review the bills and explanation of benefits and calculate the adjusted medical expenses yourself; and/or (3) it is easier to rely on the defense to provide the adjusted medical expenses and hope that their figures are correct.
None of these reasons make any sense, and the failure of the plaintiff’s attorney to directly deal with the adjusted medical expenses will mean that a critical aspect of the value of the case is being ignored, and it can also leave a less than favorable impression with the defense carrier’s perspective on the expertise of the plaintiff’s attorney.
If there is a bright side to this development in the law for the plaintiff’s bar, it might be that it is now easier to argue that the medical expenses are reasonable and necessary, after they have been adjusted. Moreover, some defense attorneys will stipulate at trial as to the amount of the adjusted figure so that the custodians of record of the various providers don’t have to come to trial to testify, and the evidence for the total adjusted expenses can then be reduced to a written summary that the plaintiff’s testifying physician can lay a foundation for, so that just the summary alone can come into evidence.
Notwithstanding the writing on the wall as to the admissible amount of past medical expenses, some plaintiff’s practitioners have been creative in attempting to circumvent it, in one of two methods: (1) counseling the client not to utilize their medical insurance to defray their past medical bills; and (2) utilizing a “factoring” company to assume legal title to the bills. Both of these approaches leave much to be desired and a lot to risk for both the plaintiff and their attorney.
Insofar as not billing the client’s medical insurance, this issue would probably not arise to the extent that a client requires emergency medical treatment, and at which time they are more interested in seeing a physician on an emergency care basis versus immediately consulting with an attorney. Most emergency care providers collect the patient’s medical insurance information as a condition of admission, and automatically bill the carrier thereafter. Few clients, if any, would be aware of the consequences of Howell and Corenbaum until after they have consulted with counsel.
As to non-emergency care providers that the client may see thereafter, if the client has applicable medical insurance that would defray all or part of such expenses, it is the opinion of this practitioner that an attorney who advises their client not to utilize their insurance is most likely doing their client a disservice, and may be setting themselves up for a legal malpractice case down the road.
As the saying goes, there are only two things in life that are certain, and the end result of a legal claim or a personal injury lawsuit do not fall into either of those two categories. Most policies of medical insurance require that the bills be submitted to the insurer in a set window of time to qualify for benefits, and the majority of most mainstream healthcare providers will not take a lien. Many healthcare providers that will not take a lien will send the account out to collection if no payment is forthcoming in a fixed period of time, and which may lead to a negative credit history report, collection agency activity with inflated interest charges being tacked onto the bill, or even a collection lawsuit being filed against the client.
Meanwhile, the client’s claim or legal case grinds on, with the eventual monetary outcome never a certainty until it occurs. As any attorney knows, there are any number of myriad reasons as to why cases are lost or under-compensated for in the claims and litigation arena. If the end monetary result is less than sufficient to satisfy outstanding medical bills that the attorney has advised their client not to submit to their insurance, and then it is too late to do so thereafter, then the attorney will be a natural target of blame by the client, had timely billed charges to their medical insurance been counseled and then satisfied in whole or in part by their medical insurance.
In addition, the personal injury victim has an obligation to mitigate their damages, and a failure to submit medical expenses to an insurance carrier that may have satisfied such expenses may leave the client’s case vulnerable to this argument.
The other mode that may be used to avoid the ramifications of the adjusted medical billing is to have the full amount of the bills assigned to a factoring company, and then the attorney negotiates with the factoring company after the settlement to try and reach some sort of compromise on what it will take to satisfy same.
This latter approach was recently addressed in the recent case of Dodd v. Cruz (Second Appellate District, February 5, 2014) __Cal.Rptr.3d __, WL 461158, LEXIS 118.
In Dodd, a plaintiff involved in a motor vehicle accident had shoulder surgery performed on a lien at a surgery center. This provider then sold the lien to a factoring company. The defendant attempted to subpoena the records from the factoring company to determine what was paid on the assignment of the lien. The factoring company refused to comply, objecting on the basis of confidentiality, proprietary concerns, and relevance.
The trial court granted its motion to quash, but on appeal the appellate court reversed, citing both Howell and Corenbaum, in holding that the amount paid for the provider’s account receivable was reasonably calculated to lead to the discovery of admissible evidence as to the reasonable value of the medical services provided. Whether or not such evidence would be admissible, it could be relied on by expert witnesses to opine what the reasonable charges should be.
In Dodd , the president of the factoring company was the plaintiff’s own attorney, and which adds another interesting hair in the ointment insofar as a potential conflict of interest may be concerned. Furthermore, one of the surgical center’s limited partners was the brother of the factoring company’s vice-president.
From this practitioner’s perspective, attorneys counseling clients not to use their medical insurance or for the attorney to be directly (or even indirectly) involved in assignments of medical liens, just to avoid the ramifications of Howell and Corenbaum, are creating liability scenarios for themselves and pitfalls for their client’s case.
There have been other changes in the law over the passage of time that have not been plaintiff friendly: the passage of MICRA; the Fair Responsibility Act codified in Civil Code secs. 1431.1 and 1431.2; the demise of Becker v. IRM Corp.; and other changes in codes and case law have sometimes curtailed the ability of some injured parties to obtain full or certain types of compensation, given the fact situation of any given case.
Notwithstanding this, injured parties can still obtain compensation given the facts and coverage applicable to any injury incident, and the plaintiff personal injury bar shows no immediate sign of dropping personal injury cases and trying to practice family law or immigration law as a fall-back practice after the rulings enunciated in Hanif, Howell, and Corenbaum.
From the perspective of this practitioner, it is best to “bite the bullet”: calculate and present the adjustment on the medical bills to the defense carrier and defense attorney (including any calculation thereof in response to a defendant’s form interrogatories), to any neutral presiding over a settlement conference or mediation, and to the ultimate trier of fact. Put the best slant possible on your client’s case given the other factors in the case that would be an argument for greater value being placed on the matter – it is all any self-respecting plaintiff’s attorney can do.
Friday, March 14, 2014
CONTAMINATED FOOD PRODUCT CASES: BE CAREFUL WHAT YOU EAT
Some of the more interesting cases that my offices have been involved in have concerned food products or dishes that contained contaminants that should not have been there. Because this is an unavoidable risk of eating food, but is something that nobody would want to encounter, these types of cases tend to be somewhat unforgettable even with the passage of time from having handled such matters.
The law imposes strict liability for certain injuries as a matter of public policy, in certain types of cases. If a food product has a contaminant in it that is not natural to the preparation or nature of the particular product, then the law will impose strict liability for all resultant injuries, regardless of whether or not the purveyor or vendor of the food product was negligent in the preparation of same.
Under what has come to be known as the "consumer expectation test", if the contaminant in question is not natural to that food product, then strict liability will apply. On the other hand, if the contaminant in question is natural to that food product (ie., a bone fragment in a meat or fish dish), then strict liability will not apply, and the injured consumer can only assert negligence as the basis of a legal claim. This may be difficult or impossible to do given the circumstances of any particular case, as the law only requires that a person owing a duty of care to another act "reasonably", not "extraordinarily reasonably".
Some of the non-natural contaminant cases that I have been involved in over the years have included broken glass in a dinner salad, worms in a candy bar, a piece of clear plastic in a container of mashed potatoes, a band-aid in a deli sandwich, and pieces of metal in fast food burgers (the latter situations were nearly always the result of the metal ring used to secure the ends of commercially prepared plastic rolls of ground round somehow ending up in the patty, although I had one case wherein the piece of metal was a heavy gauge staple on a hamburger patty (this is not an advisable way to secure the cheese to the patty).
Much more difficult are cases wherein the consumer alleges to have contracted food poisoning due to ingesting a certain food product. Proving that a specific food item caused food poisoning when the consumer most likely had several meals over the past 24 hours from other sources can be an uphill battle. Moreover, many "food poisoning" claims are based solely on various subjective symptoms that cannot be medically correlated to a true situation of food poisoning. The cases that I have been successful with in this area have all involved situations wherein there were multiple victims who had all consumed the same product from the same source. There is strength in numbers.
In many food contaminant cases, the potential damages are somewhat nominal. While anyone would probably have revulsion or distress at finding certain contaminants in their meal, those cases are not worth as much as those wherein the consumer requires medical or dental care to treat an actual physical injury arising out of the experience.
As might be expected, some food contaminant claims are looked at askance by the defendant, as they can be easy to fake by a dishonest person.
If you are the actual victim of a food contamination incident, it is important to remember the following: (1) make an immediate report or complaint to the vendor of the product or dish; (2) save the contaminated object -- many restaurants or retailers will want to take immediate possession of whatever you may have found, but do not surrender what is now "Exhibit A" -- they can look at it later in a controlled setting after a formal claim is made; and (3) seek medical or dental care immediately if a physical injury or significant distress is involved.
Lastly, I must share my favorite "food" contaminant case of all time. This one was not a case that I handled, but I remember it from law school, and even then it was only a footnote in a products liability treatise that I was required to read. The footnote referred to an actual case where a consumer bit into a plug of chewing tobacco and encountered a severed human toe. While some may view this as an object lesson as to why you shouldn't be using "chaw", my question was how this unfortunate soul was able to tell the difference between the "chaw" and the toe. And that is why I don't use chewing tobacco.
Some of the more interesting cases that my offices have been involved in have concerned food products or dishes that contained contaminants that should not have been there. Because this is an unavoidable risk of eating food, but is something that nobody would want to encounter, these types of cases tend to be somewhat unforgettable even with the passage of time from having handled such matters.
The law imposes strict liability for certain injuries as a matter of public policy, in certain types of cases. If a food product has a contaminant in it that is not natural to the preparation or nature of the particular product, then the law will impose strict liability for all resultant injuries, regardless of whether or not the purveyor or vendor of the food product was negligent in the preparation of same.
Under what has come to be known as the "consumer expectation test", if the contaminant in question is not natural to that food product, then strict liability will apply. On the other hand, if the contaminant in question is natural to that food product (ie., a bone fragment in a meat or fish dish), then strict liability will not apply, and the injured consumer can only assert negligence as the basis of a legal claim. This may be difficult or impossible to do given the circumstances of any particular case, as the law only requires that a person owing a duty of care to another act "reasonably", not "extraordinarily reasonably".
Some of the non-natural contaminant cases that I have been involved in over the years have included broken glass in a dinner salad, worms in a candy bar, a piece of clear plastic in a container of mashed potatoes, a band-aid in a deli sandwich, and pieces of metal in fast food burgers (the latter situations were nearly always the result of the metal ring used to secure the ends of commercially prepared plastic rolls of ground round somehow ending up in the patty, although I had one case wherein the piece of metal was a heavy gauge staple on a hamburger patty (this is not an advisable way to secure the cheese to the patty).
Much more difficult are cases wherein the consumer alleges to have contracted food poisoning due to ingesting a certain food product. Proving that a specific food item caused food poisoning when the consumer most likely had several meals over the past 24 hours from other sources can be an uphill battle. Moreover, many "food poisoning" claims are based solely on various subjective symptoms that cannot be medically correlated to a true situation of food poisoning. The cases that I have been successful with in this area have all involved situations wherein there were multiple victims who had all consumed the same product from the same source. There is strength in numbers.
In many food contaminant cases, the potential damages are somewhat nominal. While anyone would probably have revulsion or distress at finding certain contaminants in their meal, those cases are not worth as much as those wherein the consumer requires medical or dental care to treat an actual physical injury arising out of the experience.
As might be expected, some food contaminant claims are looked at askance by the defendant, as they can be easy to fake by a dishonest person.
If you are the actual victim of a food contamination incident, it is important to remember the following: (1) make an immediate report or complaint to the vendor of the product or dish; (2) save the contaminated object -- many restaurants or retailers will want to take immediate possession of whatever you may have found, but do not surrender what is now "Exhibit A" -- they can look at it later in a controlled setting after a formal claim is made; and (3) seek medical or dental care immediately if a physical injury or significant distress is involved.
Lastly, I must share my favorite "food" contaminant case of all time. This one was not a case that I handled, but I remember it from law school, and even then it was only a footnote in a products liability treatise that I was required to read. The footnote referred to an actual case where a consumer bit into a plug of chewing tobacco and encountered a severed human toe. While some may view this as an object lesson as to why you shouldn't be using "chaw", my question was how this unfortunate soul was able to tell the difference between the "chaw" and the toe. And that is why I don't use chewing tobacco.
Tuesday, January 14, 2014
Civility In Law Practice
Many clients in adversarial matters view their party adversary as the enemy, and by association, have a similar feeling about their adversary's attorney. This is especially true in family law, probate proceedings involving opposing family members, and in business litigation wherein the parties had a working or personal relationship in place before a dispute arose. These clients often have a problem understanding how their respective attorneys can communicate in an amicable fashion, given the emotional baggage that they may be bringing to the fore. An attorney can always accomplish more for their client by having an open line of friendly communication with the opposing attorney, although depending upon the client it is not necessarily something that should be openly advertised in the client's presence, like a courtroom hallway. A working relationship can help to avoid motions (and which are expensive for the client) and achieve stipulations to certain issues (and which again are usually a cost-saving procedure for the client) that are in the client's best interest. In those situations wherein opposing counsel do not get along, an effort should still be made to do so, as it is the professional high-road to take. Letting opposing counsel know what you really think about them in a negative way will cloud a lawyer's objectivity and open the door for eating a big dose of humble pie if things don't go the way you want them to at court. The legal community can be a relatively small one, and you may encounter a former opposing attorney in a new case one day, and wherein you need a favor. Don't burn your bridges.
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