The Plain Truth About the Practice of Personal Injury Law

Friday, February 25, 2011

"But I Thought I had Full Insurance Coverage on my Car ?"

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Several years ago the State of Illinois enacted a mandatory insurance law requiring  liability coverage for all motorists and vehicles.  At first glance the law appears to address the problem of injuries caused to other motorists and pedestrians by uninsured drivers. Unfortunately, nothing could be further from the truth. As a Chicago PI, Personal Injury Attorney I know the importance of this area of the law which I share here in with motorists and potential clients.

The mandatory insurance law merely requires the purchase of $20,000., liability coverage. In this day and age of skyrocketing high health care costs, the minimal coverage is grossly inadequate.  If an injured person sustains permanent, life altering  injuries and disability, the at fault driver is effectively uninsured. What can motorists do to protect themselves against a catastrophic event?

The simple answer is the purchase of as much uninsured/underinsured motorist coverage as your automobile liability insurance company will sell you.  What is this coverage and how do I get it?

Uninsured motorist coverage protects its insured's from injuries and damages caused by the negligent operation of a motor vehicle by an uninsured driver. Underinsured motorist coverage is slightly different in that it provides coverage for losses which exceed the maximum liability insurance coverage purchased by the at fault driver.  Finally, these policies also cover injuries and damages caused by the actions of a "hit and run" motorist.

As a personal injury attorney based in Chicago I regularly represent individuals that have been severely injured by the negligence of uninsured/underinsured motorists. During our initial meetings these persons will tell me that the at fault driver had " full insurance coverage".  When I ask them for the amount of the applicable liability policy insurance limits they universally do not know. My follow up question is  how much uninsured/underinsured coverage do you have? The answer remains the same.

The net effect of this inadequate insurance coverage is best illustrated  by the following actual case in which I represented an motorist whose auto was struck head-on by an intoxicated individual that crossed the center line of the road.  My client underwent emergency surgery to remove his spleen, repair broken bones and associated injuries.  He remained in intensive care for several weeks and did not attain maximum medical recovery for more than one year.  His medical bills exceeded $500,000. and lost more than $200,000. in wages.  Beyond the task of recovering from his injuries my client was shocked to learn that the intoxicate motorist only had liability insurance coverage of $50,000.  When I reviewed my client's insurance policy it disclosed that he had underinsured motorist coverage of $100,000. I had the unpleasant responsibility to tell my client that the most that he could ever recover for his injuries and lost wages was  $50.000 from the first policy and an additional $50,000 from his own policy.  He looked at me and said why didn't the intoxicated at fault driver have more liability insurance coverage? After he calmed down I asked him why he had not purchased more uninsured/underinsured motorist coverage? Ironically, approximately two years later his wife was the victim of a similar auto collision caused by a motorist with only $25,000. in liability insurance coverage. When I reviewed my clients' insurance policy I observed that since the first case he had purchased $2,000,000., in uninsured/underinsured insurance coverage.  Needless to say, the second case came to a much happier ending than the first.

Uninsured/Underinsured motorist insurance coverage is relatively inexpensive and most insurance brokers fail to recommend purchasing it in an adequate amount.  Take a few minutes and read the "declaration pages" of you motor vehicle insurance policy to determine your present coverage.  I promise you will be happy that you did!

Rick Grossman

Wednesday, February 23, 2011

What does it take to win a Medical Malpractice case? “The Big Picture”

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Ask any Plaintiff's personal injury attorney which cases are the hardest to win and the universal answer will be medical malpractice. These cases include:

Medical Malpractice

From the moment the case begins, the attorney knows that he or she are in for a battle. When sued, medical doctors immediately fall into a state of denial if not righteous indignation. How could they possibly be responsible for a patient’s injury or death? Medical malpractice insurance companies further empower physicians by granting them the absolute right to have their case tried to verdict before a jury, no matter how egregious their conduct.

The plaintiffs’ attorney is also faced with the mandatory requirement of retaining a physician in the same specialty to testify against the defendant doctor. At one time this task was extremely difficult, especially on a local level,  as the testifying doctor feared retribution from the medical community and the malpractice insurance companies. In fact, for a period of time one major insurance company sent notices to its insured's "encouraging" (sic) them to not testify for plaintiffs’ in malpractice cases.  However, as doctors incomes have continued to decline due to lower PPO and Medicare reimbursements, many have welcomed the opportunity to increase their incomes by testifying against their collogues as expert witnesses. These physicians charge plaintiffs’ attorneys from $5,000-$10,000 to review records sit for a deposition and testify at trial.

The typical defense in malpractice cases is that any and all mistakes have resulted from "a known complication". Taken to its extreme just about anything can be labeled "a know complication". Defense attorneys refer to medicine as an "art" which is not perfect. Using this logic the same can be said for the negligent operation of a motor vehicle which is never excused by the law.

My many years as a Chicago personal injury attorney has taught me that juries will give a doctor every benefit of the doubt before finding their conduct negligent and awarding a patient money damages. During the selection process prospective jurors are asked if both the plaintiff and defendant start out on equal footing before the case begins.  No matter what a juror may say the doctor has a clear edge over the plaintiff. The physician is typically placed on a pedestal representing the pinnacle of all professions.  This attitude is exacerbated by the medical lobby and their insurance companies flooding the media with the "cry" that, "there are too many lawsuits brought against doctors", that "doctors are being chased out of their state" and “there will be no one available to deliver babies”. Jurors are therefore brainwashed to believe these untruths.

Given the foregoing prevailing attitudes, I submit that unless a plaintiff's personal injury attorney can get a jury "mad" or upset at the doctor over their conduct in the case on trial the plaintiff will lose. This is true no matter how technically correct the plaintiff's position may be. Young, inexperienced plaintiffs’ medical malpractice attorneys forget who they are trying their case in front of and fall into the trap of asserting a technical position in an effort to win the case. If they use this tactic their case is doomed.  Jurors’ already brainwashed, lack the knowledge, patience and desire to absorb technical medical jargon. Defense attorneys’ spoon feed as much of this information as they can to confuse jurors into a verdict for the defendant doctor.  

The “Big Picture” is the only solution. Each side presents expert witnesses as required by applicable law. The witnesses offset each other’s testimony so who is the jury to believe? The plaintiff’s attorney must shift the argument away from both witnesses labeling them a legal necessity and win the case upon common sense, lay facts that can always be found in the medical records or non medical testimony.  Jurors can easily absorb this type of evidence, forget (as they will anyway) the technical medical testimony and side with the plaintiff. Examples of this technique include showing the jury that the doctor was too lazy or pompous to make a telephone call to the patient, hospital resident or even a nurse; that the doctor did not visit the patient in the hospital or went off on vacation; that the patient was left in the hands of an inexperienced intern or resident physician or the physician may have left the operating room prior to the completion of a surgical procedure.

Physicians often know that they have committed malpractice at a moment in time.  Their typical reflex reaction is to write a detailed “cover your ass” entry in the patients chart in an effort to absolve themselves of the mistake. This may be followed with yet another writing called a “post entry” note. The trial attorney must use these physicians “progress notes” to show the jury that the physician knew that he or she made the mistake and went to painstaking lengths to cover it up. What the physician actually wrote in the chart is of little import since they have shown a guilty state of mind. Discrediting their conduct is the goal. Get the jury mad at the doctor!

Inexperienced attorneys having watched too many television legal dramas will do everything possible to catch the doctor in an outright lie. Although this is certainly a desirable goal, a failed effort will inflame the jury against the plaintiff.  A better technique is to let the physician or their expert witness make incredible claims which are preposterous even to a lay person. Said another way, the doctors testimony on many critical issues may make perfect sense to a jury causing the plaintiffs’ case to suffer. If left alone at this stage the plaintiffs case may be lost.  Yet, my 35 years of medical malpractice experience has shown me that physicians do not know when to stop. After effectively hurting the plaintiffs’ case they come forward with a single self serving statement or opinion that is “over the top”. Once made, the physician has taken away all of the good will established with the jury and brought all of their testimony into question. The plaintiffs’ attorney must then argue this fact to the jury during closing argument, effectively taking that witness out of the case. Even though the doctor did not admit fault he might as well have done so.

Once the plaintiffs’ medical practice attorney abandons the “he said she said” technique and masters the art of selling the ” Big Picture” they will be on their way to successfully winning medical malpractice cases.

Rick Grossman

Saturday, February 12, 2011

What Has Become of the Small Personal Injury Case?

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As a Chicago Personal Injury Attorney practicing in this field for more than 35 years, I have handled just about every type and size of case imaginable. They include :
Medical Malpractice ,
Birth Injury,
Nursing Home Malpractice,
Brain Injury,
Spinal Cord Injury 
Wrongful Death,
Product Liability/Defective Dangerous Products,
Automotive Product Defects,  
Wheel Explosions/Multi-Piece Rim Explosions and Lock Ring Separations throughout the United States
Tire Defects, Explosions and Tire Belt Separations Throughout the United States,  
SUV Rollover Accidents ,
Car Accidents,
Truck Accidents 
Motorcycle Accidents,
Injuries at Work,
Construction Accidents 
Premises Liability .

Obviously, the most common of all injury cases remains the simple truck or automobile accident. Two vehicles collide and a person is injured to some extent. The victim may visit an emergency room where they are diagnosed with what is commonly referred to as "soft tissue injuries". This phrase means that there are no broken bones or torn tissues, that require surgical repair. They may have some bumps and bruises but little other visible injuries. Follow up care may or may not occur but if it does it usually is with a chiropractic physician or a physical therapy facility. In a relatively short period of time the injured person is back to work and in good health.

These individuals often feel that they should be compensated for their injuries, pain, suffering and lost wages from work. They pick up the telephone and contact a personal injury attorney to handle their claim. Now the problem begins.

25 years ago these types of cases were easily resolved in a short period of time without filing a lawsuit. The Chicago personal injury attorney obtained copies of the client's medical records, bills and lost wages. The claim was submitted to the at fault parties liability insurance company.  A claims adjuster then contacted the attorney and after a few telephone calls an agreed settlement brought the matter to a close. The attorney was happy because he did not have to incur the time and expense of a lawsuit. The client was equally pleased as he or she received prompt reasonable compensation.  Unfortunately, this simple process has disappeared and will probably never return.

You might ask yourself what happened?  The simple answer is that a few substandard automobile liability insurance companies changed it all. In Chicago these insurance companies typically provide minimal liability coverage to individuals with poor driving records for which the company charging a hefty premium. The companies also maintain "in house" or captive law firms to defend its insured in the event of a lawsuit. Through the combined effort of the insurance companies and law firms they never settle a claim before suit and if in suit on the day the jury trial is about to commence.

The foregoing practice forces the victims of a small personal injury claim to hire an attorney and file a lawsuit against the responsible party. Depositions are taken at great expense including the testimony of physicians that command fees of $1,000 to $2,500. The net effect is to chill both the injured and the attorneys who represent them from making a claim or filing suit. The expense of prosecuting the case is time and cost prohibitive. In other words, would you spend $3,000 and expend 2 years of your time with the possibility of recovering $4,000? The obvious answer is no.

Slowly but surely this practice was adopted by most of the insurance companies to a point where it is impossible to settle any case without a lawsuit and protracted litigation. The courts have done nothing to combat this practice by the simplification of rules or binding arbitration. Secondly, it continues to allow the insurance companies to effectively practice law by dummy law firms staffed with salaried attorneys prepared to defend every lawsuit. To level the playing field the insurance companies should not be permitted to practice law but rather hire independent attorneys from private law firms to defend the interests of its insureds. Each side would then be subjected to the same time and expense creating an incentive to settle cases at an early stage.

The State of Illinois, Department of Insurance is also guilty of not forcing the insurance companies to settle valid claims without suit or subject themselves to sanctions. The companies continue to make record profits while the individuals go without fair compensation for their injuries.

Unfortunately, until the courts place the parties on equal footing the small personal injury case has effectively been declared dead in Chicago and the State of Illinois.

Rick Grossman

Monday, February 7, 2011

More Monetary Waste from Illinois' US Senators

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(AP) — Illinois' U.S. senators have asked federal officials to review Lake Shore Drive safety, days after a blizzard socked Chicago with 20 inches of snow.
U.S. Sens. Dick Durbin and Mark Kirk wrote a letter Sunday to the U.S. Army Corps of Engineers and U.S. Secretary of Transportation. It requests the agencies look at Lake Michigan water levels, impact waves and weak spots.
The letter says a major vehicle route close to a major body of water can have "unintended consequences." The senators say things could have been worse last week if water levels hadn't been at historic lows.
Last week's storm left hundreds stranded on the drive. While some feared impact from giant waves, businesses and residents near the drive said water close to the shore line was frozen.

At Steinberg Burtker & Grossman, Ltd., Chicago Injury Attorneys we are concerned about the political waste in Washington, Springfield and Chicago. The actions of Senator's Durbin and Kirk illustrate the fact that the spending and waste will continue regardless of political party.  We suggest that they each put on their boots and walk the lakefront. They will then know everything they need to know, without wasting millions of taxpayer dollar.

Rick Grossman

Wednesday, February 2, 2011

Obama Flip-flops on Tort Reform in Medical Malpractice Lawsuits (January 30, 2011)

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Obama Flip-flops on Tort Reform in Medical Malpractice Lawsuits (January 30, 2011)
President Barack Obama appears to have finally caved in to the conservative medical lobby fighting for so-called tort reform. For the first time during his recent "State of the Union" speech he stated that he was now in favor of tort reform in medical malpractice cases limiting the rights of victims to seek monetary damages. This is a total about face from his previous stance which opposed limiting patients damages. It is clear that Obama's change reflects his desire to be re-elected to office by picking up some conservative votes.
In the State of Illinois similar attempts at tort reform have failed as the Illinois Supreme Court has on several occasions struck down legislation passed by the legislature. The high court correctly recognized that tort reform for a single class of cases namely medical malpractice is unconstitutional.
What the general public fails to understand is that the current financial crisis results from the lack of control of the major health insurance companies that continue to receive record profits while significantly decreasing the reimbursement received by doctors and hospitals. Over the past 10 years internists have been forced take on a tremendous increase in the number of patients in an effort to maintain their income. They have even resorted to VIP type practices in which their patients pay the physician a yearly cash retainer for the right to be seen by their practice. With a few exceptions most other medical specialties have suffered the same fate. Medical malpractice lawsuits have nothing to do with this financial reality. As long as a doctor is willing to accept pennies on the dollar for their services they have no one to blame but themselves.
As a Chicago Personal Injury Attorney representing the injured victims of medical malpractice I can tell you first hand that we do not file frivolous lawsuits against doctors and hospitals. Beyond the fact that it is morally wrong to do so, the out of pocket cost to the attorney of prosecuting the action can range from $35,000. to more than $150,000. Our attorney fees are also contingent upon a successful recovery. In other words we must risk both out valuable time and money prosecuting a lawsuit which may not be won. Unless we are extremely selective of the cases we agree to accept it would not take long for us to be forced out of business. For that reason alone we must engage in due diligence to thoroughly investigate the merits of a potential lawsuit by consulting with experts in the field at issue before agreeing to accept the case. Medical malpractice insurance companies would like the public to believe that attorneys are filing lawsuits on behalf of anyone that walks in the door. They further buy radio and television airtime in an effort to get the public to panic that unless tort reform is passed every physician will leave the state. The fact is that there may be a shortage of physicians in downstate communities because the physicians do not want to live there! The migration from small rural communities to the "big cities" is not a new phenomena which somehow excludes physicians.
Doctors and hospitals have a right to be paid a fair price for their services but it is up to them to take on the health insurance companies and stop blaming medical malpractice attorneys for their financial woes.

Rick Grossman