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

With the ongoing economic recession, we have continued to see a high number of clients who have lost their health insurance (if not their job altogether). Of course, it seems that’s right about the time that many folks wind up needing to go to the hospital.

All hospitals in Ohio are part of a program that writes off hospital bills if the patient falls below a certain income criteria. This program applies to all hospital bills incurred in Ohio and it does not matter whether they’re related to any sort of legal case. The program is available to anyone in Ohio for any hospital bill as long your income falls below the applicable threshold, which depends on the year you are applying to the program.

Typically, a family with two or three children and an annual income of approximately $20,000 may qualify. The program will look at the family income prior to the service for three months preceding the service and for 12 months preceding the service. Whichever of those two numbers is more favorable to you, will be used in the application to determine if you qualify. Please note that the program only applies to hospital bills; it does not apply to doctor bills, prescriptions, physical therapy bills, etc.

The hospitals can often be quite eager to help you complete the application. This is because all Ohio hospitals contribute a certain amount of money to the fund every year and their goal is to apply to get a share of the money back. If they don’t complete the appropriate number of HCAP applications, their contribution goes to another hospital.

Furthermore, if you have health insurance and you are struggling with paying a medical bill; starting to make noise about the HCAP application can sometimes motivate the players (whether it’s the hospital or your health insurance company) to finally process your bill.

If you have any questions about this program, please contact the patient billing office of the hospital and ask them about the HCAP program.

According to the Washington Post, a recent Centers for Disease Control & Prevention study found that fewer motorcyclists die in states that require helmets, and the costs to society are lower too. The researchers looked at the total number of fatal traffic crashes, focusing on the years 2008-2010. The statistics included 14,283 deaths of motorcyclists. The startling finding was that about five times as many no-helmet biker deaths occurred in states with less restrictive laws. In other words, states that require helmets save five times as many lives. Motorcycles account for about 3% of the registered vehicles on the road, but about 14% of the people who die in traffic accidents are motorcyclists. Wear your helmet!

Washington Post. CDC: Deaths and Costs to society are lower in States with Toughest Motorcycle Helmet Laws, June 14, 2012. For more information on this subject, go to  www.cdc.gov/mmwr