When is a letter from a law firm important, and when is it junk? 

People who have been involved in motor vehicle collisions, whether they are injured or not, unfortunately receive ever-growing piles of junk mail.  In the days following the collision, a high percentage of this, unfortunately, is junk mail from lawyers and medical providers soliciting the person’s business. (Our firm has never solicited a single injury case.)

The law firms that engage in this solicitation are required to comply with several rules imposed by the Ohio Supreme Court. The materials must boldly and clearly state they are “Advertising material” or “Advertisement only.” They must also fully explain how they came to know you were in an accident (generally, this is by combing the police departments and ordering up all crash reports that came in that day). They are prohibited from soliciting by phone or in person, and violations can occur if repeated attempts at soliciting a client rise to the level of harassment, duress, or coercion. If you have received such solicitations and believe they don’t follow these rules, or wish to learn more about this practice, you should contact your local bar association.

So while much of the stuff cramming your mailbox is junk, there are still some important items to save. Much of the mail coming from auto and health insurance companies, as well as medical providers, comes from other companies with odd-sounding names. (Healthcare Recoveries, ACS Recoveries, Xerox Recoveries, Meridian Resources, etc.) Many of these actually sound like collection companies, but they are not. 

Some of this mail actually comes from law firms and relates to an important development in your case. A letter from a law firm could pertain to a medical bill that has somehow slipped through the cracks and is on its way to a collection lawsuit.

We recently assisted a smart young professional who grew so tired of all the mail he received that he began to ignore it. One of the letters he ignored was actually from a law firm about to file suit against him on a medical bill that had slipped through the cracks. This particular client had auto insurance, was hit by someone who had auto insurance, and he also had health insurance, but the medical bill remained unpaid.  (See “Who Pays the Medical Bills,” also in this issue of the newsletter.)

We wish there was something that could be done to reign in the attorney and chiropractor solicitations that increasingly clog the mailboxes of those recently involved in collisions. Unfortunately, the U.S. Supreme Court has ruled that this type of communication, as long as it is within certain parameters, is protected free speech. Be that as it may, pay attention to all of your mail and share it with your attorney so that you can avoid unnecessary pit falls.

Ohio has 88 counties. Each county has a court of Common Pleas. Each court of Common Pleas deals with a wide range of legal issues – domestic, criminal, probate, juvenile and just about any other dispute upon which a claim can be made.

Ohio is then divided into 12 districts, each with its own court of appeals.  The 88 counties are grouped into these various district.  For example the 9th District Court of Appeals located in Akron covers Summit, Lorain, Medina, and Wayne counties.

Ruling over all of these courts is the Ohio Supreme Court; established under Ohio’s constitution as the highest court in our state and the so-called “court of last resort.”  The Ohio Supreme Court has seven Justices, one of whom is Justice Paul E. Pfeifer. Each Ohio Supreme Justice is elected for a six-year term by a general statewide election.

The buck stops at the Ohio Supreme Court when it comes to the determination of a legal issue. An issue that arises in a county court of Common Pleas may go through the Court of Appeals and end up in the Ohio Supreme Court where the seven justices will decide its fate.  Once the Supreme Court issues a ruling it becomes the law of the land and must be followed by all the lower courts.  A majority of the seven justices is required to reach a ruling.  Those not in the majority are free to write a dissenting opinion, explaining why they do not agree with the majority opinion. 

Earlier this year the Ohio Supreme Court decided the case of Ruther v. Kaiser.  We have told you in the past that your rights are under attack by well-funded special interests that pour money into legislative and Supreme Court elections.  We have reprinted Justice Pfeifer’s Ruther dissent in full below outlining his thoughts on the attack on your rights, the time-honored law of our nation, and the Ohio Constitution itself.

It is not everyday when one of the seven highest judges in our state calls out the others for falling for the powerful and seductive money interests presently involved in Ohio politcs.

PFEIFER, J., dissenting.

{¶ 40} Early in law school, every student is introduced to the rich historical tradition and critical importance of the common law in our nation’s development. Today, American judges and attorneys are invited to assist both developed and developing countries in applying our common-law traditions, which date back centuries in England, to their efforts in empowering their courts to protect basic and constitutional human rights without interference from political leaders and legislative bodies or their military establishment. The power of every citizen in the United States to seek redress in our open courts for injury done, be it by our government, another citizen, or a large corporation, is a source of some amazement and great envy in many parts of the world. That the resulting decisions by judges and juries are respected and enforced without police or military intervention is incomprehensible in some quarters. Protecting our citizens’ individual fundamental constitutional rights from attack by the government is the proud duty of the American judiciary and a part of our oath.

{¶ 41} The case of Ruther v. Kaiser, rolled out amidst a blizzard of announcements by this court, will be of little immediate notice, except to the parties, the medical community, and a small, specialized element of the bar. Over time, however, Ruther will come to be known for the profound damage done to every Ohio citizen’s constitutional right to remedy in open court for an injury done him in his land, goods, person, or reputation. Ohio Constitution, Article I, Section 16.

420*420 {¶ 42} The sweeping language employed by the majority in this case is the crescendo in our court’s decade-long deference to, and acceptance of, the General Assembly’s assault on our citizens’ right to remedy set forth, without alteration, for over two centuries in the Ohio Constitution.

{¶ 43} When is a fundamental right, contained in the Ohio Constitution and Bill of Rights since 1802, no longer the individual right of an Ohio citizen? According to this court, whenever the Ohio General Assembly chooses to extinguish the right, it will no longer exist, period. The majority writes:

A plain reading of Article I Section 16 reveals that it does not provide for remedies without limitation or for any perceived injury. Rather, the right-to-remedy clause provides that the court shall be open for those to seek remedy “by due course of law.” (Emphasis added.) Article I, Section 16 does not prevent the General Assembly from defining a cause of action.

Majority opinion, ¶ 12. In case the reader did not understand the breadth of the majority’s devastating proclamation, it continues: “Thus, the General Assembly has the right to determine what causes of action the law will recognize and to alter the common law by abolishing the action, by defining the action, or by placing a time limit after which an injury is no longer a legal injury.” Majority opinion, ¶ 14.

{¶ 44} Under Ruther, we now fully abdicate our solemn duty to enforce and protect constitutional rights afforded citizens since the beginning of statehood. If the General Assembly abolishes a remedy, including those recognized at common law when the constitution was written, it is now clearly within its power. We will afford “great deference” in presuming constitutionality of any act of the General Assembly limiting or abolishing a cause of action.

{¶ 45} Continued erosion of the venerable right of every citizen to a remedy in open court for injury done will inevitably flow from the General Assembly. It may come in small drips or in tidal waves, but it will come. The economic interests pushing limitations on causes of action are just too powerful and too seductive for the General Assembly to resist. We have now removed the Assembly’s only dam against the onslaught; this court’s previous vigorous enforcement of the “right to remedy” constitutional protections.

{¶ 46} When Timothy and Tracy Ruther sought a remedy in open court for injuries suffered because of a doctor’s failure to properly respond to three elevated liver-enzyme tests taken more than a decade before Timothy developed a fatal liver lesion and hepatitis C, they could never have envisioned the damage their case would ultimately cause for generations of Ohioans yet to be injured. 421*421 Their personal tragedy has evolved into a undiscovered nightmare for legions of Ohioans who will find the courthouse doors barred for the presentation of their future legitimate injury claims.

{¶ 47} I dissent.

As pointed out by Justice Pfeifer, this decision by the majority of our supreme court will clear the way for the Ohio Legislature to enact laws overriding individuals’ rights as previously protected by the Ohio Constitution.

Why Contingent fees work for Americans

An injury accident can often cost a lot more than you might think. And if you don’t have someone on your side who understands the law and how insurance companies operate, you can get into a lot of trouble. If you are involved in an accident on the road or at work, an attorney can be your best option for regaining your physical and financial life. But the question often arises as to how much it will cost to hire an attorney. The idea of paying legal fees out of your pocket can be daunting, but that’s where the contingent fee system comes into play. Attorneys who represent you for injury claims are usually paid on what is called a contingent fee basis. This means your attorney is compensated only if you get paid by the person who injured you or by their insurance company. If you don’t get paid, then typically you don’t owe your attorney anything.

On the other side, the person who injured you (the defendant) and their insurance company will hire a lawyer who gets paid by the hour. That lawyer gets paid whether the defendant wins or loses, and in fact, defense lawyers get paid more if your litigation lasts longer because they can bill more hours. Not a great prospect, is it?

Contingent fees are often a target of insurance companies because of the benefits they provide working families.

Contingent fees open the courtroom doors. They allow people who are injured to bring suit without having to have the money up front to pay their attorney or other legal costs, such as for investigators and expert witnesses, because their contingent fee attorney pays those costs for them.

Without a contingent fee system, only the wealthiest of injured people could afford to have their cases heard in court. Average Ohioans would not risk their life savings to go to court against an insurance company or corporation that has virtually unlimited resources to fight a lawsuit. Rather than go to court, average people would be forced to accept whatever the defendant offered in compensation.

Contingent fees promote efficiency & discourage frivolous lawsuits. Since contingent fee attorneys pay the injured person’s costs to go to court, the attorney bears a considerable financial risk – if there is no recovery, or if the recovery does not cover their costs, the attorney stands to lose financially. As a result, contingent fee attorneys act as gatekeepers – they do not accept frivolous or unjustified lawsuits. Contingent fee attorneys will listen to the injured person’s story, consider how the law applies to their situation, and then offer the person legal advice about the likelihood of success in the courtroom. Contingent fee attorneys also strive for efficiency because any extra costs will be paid by them and not by the client. In contrast, defense lawyers who are paid an hourly fee have an incentive to draw out the proceedings in order to maximize their hours of billable time regardless of the case’s merit.

Costs for contingent fees are comparable to hourly fees. Despite sensationalized stories of attorneys taking home huge amounts, numerous studies show that, for the number of hours worked, fees paid on a contingent basis are comparable to the hourly fees of defense lawyers in similar cases. Client surveys of contingent fee attorneys show they are highly appreciative of their representation because they recognize that their attorney is fighting for them and their families.

Caps on contingent fees limit access to justice. Limits on contingent fees would make it more difficult for attorneys to accept cases with lower damages. For example, if fees were capped at 10%, an attorney who routinely takes cases of a low dollar value would soon go out of business. The math just doesn’t work when an attorney has invested twenty hours of time on a case that produces a $3,000 award where the attorney’s fee is capped at 10% or $300. Contingent fees must be high enough to take into account the risk of losing, of receiving a low settlement, or of having to try a case through to appeal.

Those who advocate for limits on contingent fees know that caps mean limiting access to the courthouse for average Ohioans. That is their goal – to stop injured people from getting to the courthouse where they have a better chance of being fairly compensated for their injuries.

Caps on contingent fees is un-American. Americans aspire to be successful, and we celebrate our best and brightest. We believe in pay for performance. We understand that our lawyers will be more motivated if their fees depend on success. Why would we retreat from “results-oriented fees” by placing caps on contingent fees for attorneys? Capping contingent fees is just plain un-American. The bottom line is that contingent attorney fees offer working Ohioans a means by which they can compete fairly against the wealthy and powerful, such as insurance companies bent on limiting how much they pay you for your injury. Those who wish to limit or prevent contingent fee systems only have one thing in mind – protecting their company’s bottom line.

Our firm will continue to fight to ensure that the citizens of this state always have a fair shot at justice. Preserving our contingent attorney fee system is one way that we work to keep the courthouse door open for average Ohioans.

According to the latest statistics, there are 1.1 billion users on Facebook worldwide. Twitter, Linkedin and other social media and venues continue to experience growing market penetration as well. You are likely already aware of the everyday risks of social media (spam, hacking, etc.) but if you’ve been injured, there’s another risk: insurance company snooping.

The insurance companies are not blind to the growing amount of personal information that people share online. We suppose it was inevitable that they would eventually view this as yet another way to minimize claims. Accordingly we have encountered in our representation of clients insurance companies trolling through whatever social media footprint is publicly accessible to minimize client’s claims. In one example, the insurance company started copying all of our client’s social media postings in an effort to catch her in a lie about her medical treatment. They failed, and in the process showed how callous they were, but our client was quite unnerved when she realized that one of the biggest insurance companies in the country was reading her posts online.

So let this just be yet another warning to be aware of your social media footprint. Make sure you have your privacy settings configured appropriately and at the end of the day know that if you post it online, someone somewhere that was not your intended audience might be reading it.

Insurance companies have taken a keen interest in invading your private medical history. When someone has been injured and is presenting a claim, it is only fair that the insurance company be permitted to look at the medical records for the treatment the claim caused. The only fair way to evaluate such a claim is to look at the relevant medical treatment. However, insurance companies have increasingly been pushing injured persons to sign stacks of medical authorizations permitting the insurance company to dig into every aspect of an injured person’s medical history and personal background.

Insurance companies have been pushing the boundary on this issue using any and all negative comments in your medical records to weaken the claim with the goal of paying you less than your claim is worth.

With an attorney, you will not face this fight alone. Even in court insurance companies have stepped up their campaign to force injured parties to sign blanket authorizations. The law is clear that you have the right to refuse to give them such access to your history, but the insurance companies are acting as if that law does not exist. The only time prior medical history is relevant is if someone has had prior treatment related to that area of the body or symptom. In such cases past medical history is extremely relevant. Accordingly an injury to your left knee will necessitate a look at prior records if your left knee had previously undergone treatment, an operation or other injury. 

If the insurance company obtains your prior and unrelated medical records through authorizations you have signed, that genie can’t be put back in the bottle. You need legal representation to help navigate you through this process.

This isn’t about hiding anything from the insurance company. They have a right to review all relevant records, and it is our experience that providing all relevant prior records is the right way to maximize your recovery. This is really about your privacy. When we have clients come into the office to review their medical records, they are usually shocked at how much sensitive personal information is contained in them.

Often, battling back against these invasive fishing expeditions can seem like a distraction from the main mission of prosecuting your claim, but it lets the insurance companies know they have picked on the wrong person, and will not get away with such shenanigans in your claim. And ultimately, it’s the right thing to do.

You may think you know what your insurance policy covers you for, but you might want to double-check. We are encountering increasingly strange policy limits when we read our clients’ policies. There was a time when insurance companies offered more standard coverage; for instance, uninsured and underinsured motorists (“UM/UIM”) coverage would typically match your liability coverage and would only be offered along with medical payments coverage. Now the insurance companies are moving away from this model. Your current policy might have $100,000/$300,000 liability coverage, but only $25,000/$50,000 of UM/UIM coverage and no medical payments coverage. If so, your policy is under performing and not protecting you and your loved ones. While it is important to be covered for liability in the event that you or a family member injures someone, it is arguably more important to protect you and your family from the negligence of others. This is what medical payments and UM/UIM coverage does, and it is typically far cheaper to buy this protection than it is to obtain the liability coverage. If it has been a while, you should call your agent or check your declaration’s page to verify that you have as much UM/UIM coverage as you can afford and substantial medical payments coverage.

There was a time, as recently as 10 to 12 years ago, when the primary purpose of hiring an attorney in an injury case was to maximize the recovery. Attorneys devoted their efforts on any given file seeking to tell the story of the client, what the client experienced and how the client was injured, how the client treated, whether the client has fully recovered, etc., in an effort to seek full and fair compensation for the client.  

Now we must wear a second hat. In addition to clashing with the auto insurance companies to extract the full recovery for you, we must additionally fight to protect those dollars from increasingly aggressive health insurance companies wanting to cut in front of you and take your recovery as their own.

Health insurance companies are constantly asserting liens if they have paid any of your bills. Some of these liens are not valid.  Others are valid but horribly miscalculated.  Due either to incompetence or greed, they often attempt to siphon dollars away from you for treatment that had nothing to do with your injury case.

If you at any time use the medical payments coverage of your auto policy, your insurance company may very well want that money back. (The fact that you paid additional dollars to protect yourself with this additional coverage carries exactly zero weight under current law.) 

If you don’t have an attorney, medical providers (hospitals, doctors, physical therapists, etc.) might extract this coverage (that you paid for) out from behind your back, and leave you holding the bag when the insurance company wants that money back later in the case. Some medical providers have you sign various forms which allegedly permits them to directly bill the other driver’s insurance! This literally means that you could be seriously injured in a car accident by a driver who was responsibly insured, require extensive medical treatment, and ultimately recover nothing because the wrongdoer’s coverage was swiped away from you while you were still recovering. This would be an unprecedented, devastating blow to injured people, but the Ohio Supreme Court in a recent case might have opened the door to this.

Accordingly, what you sign, when you sign it, what you do not sign, whom you speak to, whom you do not… all of these decisions can have massive impact on your ability to be compensated for the correct amount at the appropriate time. The hospital emergency room, not surprisingly, isn’t concerned about whether you obtain a fair recovery once you finished treating; they just want their bill paid. And so the forms they’ve begun asking you to sign place their interests in direct conflict with yours.

Someone needs to take control of your claim. If you don’t have an attorney, interests that are in direct conflict with you will swiftly move to out-maneuver you.

If you had an injury claim 15 or 20 years ago, this probably sounds like an alien world to you.

Unfortunately it’s the reality in which we currently live. The health insurance company who you pay high premium dollars to somehow is allowed to get their money back even though you get no credit for your premiums. Your auto insurance company to whom you may have been paying for medical payments coverage, often gets their money back even though that was coverage you bought and paid for. All of this just increases insurance company profits at your expense. When these practices began in earnest 10 or 12 years ago, they were justified as necessary to lower your premiums or at the very least to keep your premiums level.  Obviously no one’s premiums went down or even stayed level, and this is simply another profit source for the insurance companies.

The Honorable Mary Margaret Rowlands has been a trial court judge in the Summit County Court of Common Pleas since 2008.  She recently issued a decision that is now before the Ohio Supreme Court and has managed to rile up the insurance companies quite a bit.

Boiled down, what is at stake is a simple question:  If you go out and spend your dollars to acquire health insurance, does a drunk driver who has injured you then get to use your health insurance to reduce his responsibility?

The answer, until recently, was no.  Lawyers refer to this, rather cumbersomely, as the “collateral source rule.”  The Ohio Supreme Court described it as “the judicial refusal to credit to the benefit of the wrongdoer money or services received in compensation of the injury from sources other than the wrongdoer.”  Under more recent Ohio Supreme Court rulings, the existence of health insurance reductions are now going to the jury in trials across Ohio, but Plaintiffs are still strictly forbidden from ever mentioning to the jury that the wrongdoer has insurance.  (Funny how that works.)

What’s more, this has proven to be a confusing quagmire for the judge, jury, and parties.  Why was a particular medical bill reduced?  Why was this bill reduced more than that bill?  How much premium did the plaintiff pay to obtain the health insurance?  How many months or years of premium payments should the judge allow into evidence? 

Accordingly, Judge Rowlands, in a recent case, ruled that a defendant would have to present expert testimony explaining how the reductions help the jury understand the reasonable value of the medical treatment, and that without this further supporting evidence, the write-off amounts would not be admissible.  The Defendant appealed, but the Court of Appeals agreed with Judge Rowlands.

The answer to this question has a significant effect on an individual verdict, so it is important to everyday citizens.  But it means literally millions of dollars to the insurance industry, as they not only use this to heavily discount verdicts, but to lower offers on all claims across the board.  It is actually quite a courageous act for a jurist, like Judge Rowlands, to stand up to this pressure and forthrightly require insurance companies to actually try to explain all this to a jury if they want to save money at the expense of an injured party.

This case is now before the Ohio Supreme Court, and it is expected to be decided as soon as this summer.

Across the country jury verdicts in favor of injured individuals are at an all time low. Judges, lawyers, and injured victims struggle to understand why. Is it the economy? Is it because we’re at war? Do jurors mistrust the jury system? Is it a backlash of the perception that juries give out too much money? While it is most certainly a combination of factors, there is one in particular that stands out to us.

When we try cases, we always ask the prospective jurors if they volunteer their time anywhere. It used to be most people said yes and then gave examples of their volunteer work. In today’s climate people claim they don’t have time to volunteer anymore; they feel stressed and over-scheduled and as a result no longer involve themselves in their community or places of worship. If jurors choose to isolate themselves from society they in turn have no empathy for injured fellow community members. People are so absorbed with their own problems that they lose the capacity to empathize with other peoples’ problems. It’s like trying to pour more water in a bucket that’s already full; it just rolls over the edge. If jurors refuse to understand and digest the problems of the injured person, they will not compensate the injured person. This is an insidious cycle that is detrimental to our local economy let alone an injustice to the injured individual.

We closely monitor jury results from all of the local trial courts. We discuss results with other lawyers and judges. We see verdicts where people’s uncontested medical bills aren’t paid in full, they’re not being fully compensated for their lost wages or receive nothing for injuries, pain and inconvenience caused by an injury. It becomes insidious because if a person is not compensated for his or her medical bills, then the medical bills don’t get paid. If doctors and/or hospitals go unpaid, they may not hire that additional nurse. The additional nurse who doesn’t get a job may not be able to pay her rent. If she doesn’t pay her rent, the landlord may not hire the local contractor to make repairs and so on. There is a domino effect in the local economy when members of our local economy aren’t paid. Where does the money come from to pay injured people? It comes from large insurance companies. Obviously, insurance companies pay claims with premium dollars that we all pay. However, insurance companies are experiencing all time record profits because the value of cases has dropped significantly and they have effectively eliminated coverage for claims they used to have to cover. (See corresponding chart.)

Your premium, however, has not diminished to reflect all-time low verdicts, or the diluted coverage your policy now contains. Chances are if your premium has changed, it has gone up. This has occurred at the same time the property and casualty insurance industry (including auto and homeowners insurance) is spending more and more money in the election process to get legislators elected who craft legislation to further erode the rights we have. In addition to people not being fully compensated in the judicial system, there are many people who are finding they have no legal recourse and so their injuries are going completely uncompensated. So while premiums are at a record high, coverage that is designed to protect you, your family and friends, is lower and more unattainable than it has ever been in modern times.

Extending Coverage for Young Adults after September 23, 2010

Under the new healthcare law, young adults are now able to remain on their parent’s plan until they turn 26 years old. (In the case of existing group health plans, this right does not apply if the young adult is offered insurance at work.)

2012

Newest Benefits of the Affordable Care Act

Benefits and protections taking effect this year:

More Options for Seniors who Choose to Live at Home
January 1, 2012: The Affordable Care Act creates “Independence at Home” demonstration programs to test the effectiveness of physician and nurse practitioner directed home-based primary care for those Medicare beneficiaries with multiple chronic conditions.

Strengthening Medicare and Preventing Waste, Fraud and Abuse
January 1, 2012: The Affordable Care Act strengthens prevention tactics against fraud and abuse with screening, oversight, and reporting and additional registration for providers and suppliers of services for these programs.

Tracking the Facts About Healthcare Disparities
March 23, 2012: In order to gain a better understanding of how factors such as race, ethnicity, gender, sex, primary language and environment affect our health, the Affordable Care Act enhances the requirements for reporting in these areas for Americans who receive their care through Medicare, Medicaid and the State Children’s Health Insurance Program.

No-Cost Preventive Services
The Affordable Care Act makes preventive care affordable and accessible for all Americans by requiring health plans to cover recommended preventive services without co-pays or premium costs. Before the law passed, too many Americans didn’t get the preventive health care they needed to stay healthy or avoid or delay the onset of disease. The preventive services included in this part of the law are regular pediatrician visits for children, cancer screening such as pap smears, mammograms and colonoscopy for adults, recommended immunizations, flu shots, healthy diet counseling and obesity screening.

August 2012: Additional preventive services specific to women, such as screening for gestational diabetes and contraception, will be covered by new health plans and will not require co-pays.

Easy-to-Read Coverage Summaries for Consumers
September 23, 2012: Insurance is complicated and often the language used by insurance companies is difficult to understand, incredibly detailed, and very lengthy. It is nearly impossible to use this information to compare plans. The Affordable Care Act requires private individual and group plans to provide a short, easy to read uniform summary of benefits and coverage to all health insurance applicants and enrollees. Having access to this information in layman’s language is key to understanding coverage and choosing the plan that is best.

Still To Come… 2013

Implementation of Services for Women:
Currently existing health insurance policies as of August 1, 2013 and in new health plans beginning in August 2012 will allow women who are not able to access reproductive health services through their employer to receive this coverage through their insurance company.

Improves preventive healthcare coverage by providing new funding to states that provide preventive services to Medicaid recipients at little or no cost.

Healthcare plans must start using electronic records to reduce administrative costs and streamline services.

Strengthens America’s primary care doctor network by requiring states to pay primary care physicians the same rate Medicare pays.

For more info visit www.seiu.org/a/the-healthcare-law-timeline.php