How Malingering Claims Affect Genuine Personal Injury Victims

In most sports, football especially, you’ll hear coaches and analysts say, “The best defense is a good offense.” In the courtroom, you’ll find attorneys applying a similar strategy: going on the offensive to defend their clients.

In football, that maxim means that when your team dominates play, it keeps the opponent’s offense off the field where they can’t rack up points.

In the courtroom, a “good” offense means attacking the character and credibility of a plaintiff and in so doing, devaluing the extent to which their lives have been damaged. It’s not about proving the correctness of the defendants’ actions, but tearing down the victims’ plight.

What is truth and what is malingering?

One of the most pernicious ways defense attorneys try to disparage a personal injury claim is by accusing the victim of malingering. It’s a tactic that doesn’t rely heavily on evidence, but that doesn’t mean it won’t sway a jury.

When the defense brings up malingering, it is claiming that the plaintiff is either feigning an injury altogether or exaggerating its consequences.

The defense may trot out a doctor—normally a physician or a psychologist—who will testify that, according to his or her experience, there is no physical reason why the victim should be continuing to suffer from acute pain or disability resulting from the “accident” for which the defendant bears some responsibility.

The expert may even have examined the victim—physically or psychologically—and, based on the results of the testing and the expert’s own analysis of those results, claim to have “evidence” that indicates malingering is likely.

There is good reason to be skeptical of such claims: While it’s true that malingering is an accepted psychiatric diagnosis, there is no definitive method to test for it, physically or psychologically. The results are subjective at best, and the tests are just another example of what we call “junk science” in the courtroom.

Essentially, the defense’s medical expert is accusing the plaintiff of lying, without specifically using that language. In fact, in most cases, medical experts carefully avoid using the word “lying,” because such accusations, made openly, can make jurors more sympathetic to the victim. So instead, he or she calls it a case of malingering.

It’s a subtle and devious way of insinuating to the jury that the plaintiff doesn’t deserve compensation because their pain and suffering are not as bad as he or she would have people believe.

Such accusations can be devastating to a plaintiff’s case, unless the plaintiff’s attorney is ready to counter them—which, we always are.

Putting the defense on the defensive

As personal injury attorneys, we see this type of junk science far too often. And while we may not be able to dispute medical experts’ credentials, we can hold them accountable for their words.

We press them to explain themselves. What do they really mean by using the term “malingering”? How do they distinguish malingering from lying? Where is the medical evidence for malingering? What are the witness’ credentials for making a psychological—rather than purely medical—evaluation of the plaintiff’s condition?

Just because a doctor can’t find a medical cause for pain doesn’t mean there isn’t one.

And, regrettably, it’s not unheard of for medical experts to manipulate the results of a psychological test in favor of the defendant. The questions are sometimes asked repeatedly, until the defense gets the answers it needs. Even the way in which the results are interpreted can be used to sway the jury into believing what can’t be proven with valid evidence.

The malingering defense is not fair to victims, but it’s a defense tactic used with alarming frequency in personal injury cases. It’s an example of how even further injustice can be inflicted in the courtroom, and it is part of the reason why we’re fully committed to protecting our clients.

We give juries good reason to be skeptical of a defendant who relies on accusations of malingering, and we want jurors to see the malingering defense for what it really is: an insult without evidence. If you suspect that you have been a victim of negligence resulting in personal injury or a wrongful death, please give us a call.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Construction Errors, Carbon Monoxide Poisoning, and the Death of an Unborn Child

Few things in life are more joyous than the arrival of a healthy newborn baby. But that feeling of joy quickly dissipates when parents learn the awaited day of birth will never arrive.

In this case, our clients experienced that grief firsthand. Their despair was only compounded when they learned there was evidence—strong evidence—that the loss of their unborn child was likely caused by external conditions that could have been avoided.

How were they to react upon learning the loss of their child may not have been caused by a natural miscarriage? That the child could be alive if not for someone else’s negligence?

As Ohio wrongful death attorneys, we look at the facts of a case objectively and root out what happened and why. We then do what it takes to help our clients follow a path of legal action that can ease their suffering and repair their loss—and do it without amplifying their suffering.

A hidden threat to one family’s security

Mark* and Stephanie* were excited about moving into their brand-new home with their one-and-a-half-year-old son. Mark was a police officer and Stephanie was a nurse. Their future was bright.

When construction was completed, the family moved in to their new home. Shortly after that, Stephanie discovered she was pregnant with their second child. They were elated about their growing family, and particularly delighted when they learned the baby would be a boy. Ten weeks into the pregnancy, visits to the doctor confirmed the pregnancy was progressing normally. The baby Stephanie was carrying was healthy and growing.

This was in the fall of 2015. As the days turned colder, Mark and Stephanie noticed something odd was happening in their new house. A fine soot was accumulating on the walls and on the tops of cabinets. They would clean it only to have it reappear in a few days. With the windows of the house closed, they didn’t know how the dirt was getting in.

A nuisance turns fatal

Around that same time, their toddler became chronically cranky and stopped sleeping through the night. At first, they suspected a normal childhood malady such as an ear infection. Their doctor ruled out that diagnosis, but he wasn’t sure what was wrong. He prescribed antibiotics, but medication brought no improvement.

Stephanie was getting frequent headaches and experiencing bouts of nausea. She couldn’t understand the reason for her sudden discomfort. After all, she was nearly through the first trimester of her pregnancy. Why the nausea now?

A checkup at 11 weeks confirmed that everything was fine with the pregnancy. But at the 13-week checkup, Stephanie’s doctor couldn’t find a heartbeat for the baby.

A few days later, Stephanie underwent a painful surgery to remove the remains of the baby she and her family had already come to love.

The cause of a wrongful death

Mark contacted the construction company about the continuing soot buildup. An inspection of the premises revealed the problem: An air shutter valve in the gas fireplace had been installed improperly. The result was that the fireplace (which the family had been running in the colder months) produced an excess carbon residue that accounted for the “soot” accumulating in the house.

But the faulty valve had a much more serious consequence. It was leaking carbon monoxide into the house—at levels low enough to avoid setting off the carbon monoxide detectors or to be immediately fatal, but high enough to gradually poison the family.

And enough to lead to the death of their unborn son.

Seeking justice outside the courtroom

The improper installation of the air shutter valve was clearly a failure on the part of the construction company. And through Stephanie’s medical records, and research about the effects of carbon monoxide on infants in utero, we were convinced the miscarriage had been a direct result of the construction company’s negligence.

But Mark and Stephanie were reluctant to pursue a lawsuit. Stephanie had suffered enough trauma from the miscarriage and the surgery that followed it, and didn’t want to relive it in a legal proceeding. They agreed it wasn’t right for the contractors to get away with such negligence, but they didn’t want to bring public attention to their personal family tragedy through litigation, either. We understood.

The construction company’s insurance adjuster initially treated the incident as if it were a nuisance to be brushed aside. He offered a settlement amount that didn’t begin to address the family’s suffering. So we waited to respond and continued to gather convincing medical evidence as if we were going to court.

Finally, we were contacted by the insurance adjuster. We told him, in effect, that if he was anxious to close out this case (which he was), he would have to make a serious offer. We presented our evidence, and after several volleys of offers and counteroffers, the adjuster finally came back with a proposal that we felt was appropriate. The final offer was than seven times his initial offer.

Our clients accepted the offer—all without having to go through depositions and a public hearing.

Mark and Stephanie could use the settlement to repair and clean their home or seek out a new home. They could put the tragedy behind them and focus on their family’s future.

No two clients are alike

Whether a tragedy involves personal injury or a wrongful death, each family’s needs are different. Some need a trial and jury verdict to vindicate their suffering. Others, like Mark and Stephanie, simply want compensation that is just and discreet.

Legal counsel should be attuned to people’s individual needs. We believe that, to effectively represent our clients, we need to know not only the law and the facts of the case, but also where, for each client, healing begins.

Give us a call—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 *Names in this article have been changed to protect our clients’ privacy.

Keep the Jury Out: Why Settlements Are Often Better Than Verdicts

It’s a suspenseful moment. The jury members file into the jurors’ box. The judge asks the defendant to rise. And then the jury’s foreman reads the verdict. The revelation of the jury’s verdict has been a staple of television courtroom dramas from “Perry Mason” to “Law & Order.”

It can make for gripping television. But in the real world of civil litigation, where real people have suffered actual (often devastating) harm and seek just compensation, a jury verdict is not always the best outcome for our clients—even when that verdict is in our clients’ favor.

Why? Because, more often than not, what clients really want is to take something meaningful from a personal, professional, or family tragedy. A jury’s verdict cannot begin to match the healing potential of a carefully crafted settlement agreement.

Let’s give you some examples.

These three cases involving wrongful deaths show what settlement agreements can do that jury verdicts can’t. They also demonstrate how the impact of those agreements can reach beyond the victims’ families.

Ensuring proper testing of life-saving technology

One case involved the death of an elderly woman whose family had entrusted a senior living facility with her life. One night, the woman experienced a medical emergency and used her personal alert pendant to call for help. The alarm summoned an emergency medical squad, but sent them to the wrong address. Sadly, the woman was found dead hours later, still clutching the pendant that was supposed to help protect her.

None of the parties involved—the senior living facility, the company that made and installed the alarm system, or the company that monitored and responded to the system’s alarms—was willing to accept responsibility for the woman’s death. It took a lawsuit to sort it all out.

As part of the settlement agreement, the senior facility, at the family’s insistence, agreed to execute routine testing of the alarm systems in all its 300 nationwide facilities. The company agreed to provide signed and notarized certifications proving that testing had been completed.

The family wanted their mother’s death to mean something more than what financial compensation could provide. They wanted to ensure that such avoidable heartbreak would never be repeated.

Holding property management accountable for safety protocol

Another case involved the tragic death of a 4-year-old boy that could easily have been prevented. In his family’s apartment, the child tried to climb onto an electric stove, which tipped over and killed him.

The potential for this type of accident was known and could have been avoided easily had the apartment’s management company installed the recommended brackets that would have kept the stove from tipping over.

The case was resolved with a settlement that included a unique provision. Because their loss was so preventable, the family insisted that the property owners produce and broadcast a public service announcement to alert other property owners about the importance of using the anti-tip brackets. Again, they wanted their son’s death to have real meaning in helping to protect the lives of others.

Impacting legislation to prevent future wrongful death

One final example involved the death of a tow truck operator. He was hitching up a disabled vehicle on the side of the road at night. Even though all his warning lights were working as required, a passing car failed to change lanes and struck the operator. He was killed instantly.

To help the victim’s mother cope with her terrible loss, the settlement agreement in her case included the opportunity for her to meet with legislators. She lobbied for legislative changes in her state’s Move Over Law so that drivers would be required to change lanes not only for law enforcement vehicles, but also when seeing the flashing yellow lights of any emergency vehicle.

Turning grief to good is beyond the scope of juries

What all three of these cases have in common is that the surviving victims of the wrongful deaths were looking to take something meaningful—and even positive—out of their personal tragedies. That is not unusual.

Answers and assurance can provide healing that a monetary award cannot, and the litigation process helps produce both. Those remedies—and provisions for their enforcement—are simply not available in the courtroom. In civil litigation, juries have no power to compel specific actions on the part of any of the litigants. They can award compensation for damages, and that compensation is critical and necessary for the survivors. But it is also, too often, not enough.

That’s why settlements may provide a more appropriate resolution for clients. It gives survivors the best opportunity to make provisions that draw meaning from tragedy and, hopefully, accelerate the healing process.

If you find yourself in a situation involving personal injury or a wrongful death, don’t hesitate to reach out to the Ohio civil litigation attorneys at Cooper & Elliott for legal assistance. We’re here to help.

*Names in this article have been changed to protect our clients’ privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Seeing is Believing: The Benefits of Forensic Animation

In a personal injury or wrongful death case, the jury must understand the difference between what happened and what should have happened in order to deliver a just verdict. It’s our job to make sure jurors understand the evidence so they can sort out the truth about a case. Our success hinges on establishing a connection with jurors, and then effectively communicating to them the significance of the evidence we present.

We work with expert witnesses to help explain evidence. Sometimes the timing and physical nature of events in a case are complex, and demonstrative evidence, such as images and video, comes in handy. Visual evidentiary exhibits often have more power to communicate and can be more memorable than words alone. But static images and videos taken from a single point of view have limitations.

Enter forensic animation, an emerging technology in demonstrative evidence, which is playing an increasingly larger role in civil litigation.

How forensic animation brings a case to life

Video or photos taken at the scene of an event can only present facts from one perspective and therefore can’t always tell the whole story. Forensic animation, on the other hand, virtually recreates events—and can do so from multiple perspectives. In addition, it can slow down action or zoom in to reveal critical details.

Using full-motion computer graphics to recreate events, forensic animation can help jurors visualize a car crash or an assault crime, and it can even demonstrate a product failure that resulted in a personal injury or wrongful death.

Forensic animation relies on the same computer-driven technology used in action films and the same advanced forensic science used by law enforcement. The images are compiled from a variety of sources and perspectives: police officers, forensic experts, engineers, eyewitness statements, security and body cameras, even autopsies.

For a car crash, the simulation would include data gathered at the scene, details about the terrain, weather, and traffic conditions at the time of the accident, police photographs, and more.

In medical malpractice cases, computer-aided animation, or medically demonstrative technology, is used to explain medical conditions or injuries.

In other types of civil litigation cases, the goal is the same but the subject matter is different. Take an example from a few years ago. It involved a high-speed car chase in Cleveland that led to officers shooting a suspect. Because there was sufficient video of the chase and the shooting, from several perspectives, an animation was made that re-created the event in comprehensive detail—even to the point of following the paths of individual bullets. Forensic animation filled information gaps, leaving little doubt as to how the event played out.

There is usually a wealth of information available with which to build an animation if attorneys are willing to put in the effort to find it. (And, of course, we are.)

Demonstrative evidence provided, jurors decide the truth

Forensic animation likely never will replace other types of evidentiary exhibits in civil litigation cases. Nor will it replace expert testimony. But it is a powerful tool that enhances both. There will still be times when we want to use a good old-fashioned photograph, blown up, mounted on poster board, and placed in front of the jury for an extended period of time. We can’t do that with an animation.

Civil litigation attorneys can use these tools to support their respective cases, but at the end of the day, it’s up to the jury to determine the truth.

The key for us is knowing which demonstrative evidence tools to use, and when, in order to build our clients’ cases most effectively.

 Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Catching Up with CSI: Medically Demonstrative Technology

We have tried many personal injury and wrongful death cases over the years, and there have been plenty of instances where we’ve asked medical experts to testify about what did or didn’t happen to the plaintiff. Jurors have enough information to process throughout a trial as it is, and expecting them to comprehend in just a few hours what might take medical professionals years to understand is asking a lot. Thanks to advancements in medically demonstrative technology, conveying information to a jury has become much more efficient.

Uses of medically demonstrative technology

In the past, expert witnesses have used anatomical models, illustrations, or photos to demonstrate medical conditions and injuries to judges and juries. Today, computer programs and applications have replaced some of those methods and offer experts more sophisticated tools for use in court.

Animation allows juries to see more accurate, real-time and to-scale representations of injuries or medical conditions. CT scans and MRIs not only offer more detailed visuals, they allow juries to see evidence of the plaintiff’s actual injuries instead of having to conceptualize them from a generic diagram or photograph. We once showed a jury an animation of how oxygenated blood moves from a mother to her baby before the baby is born. This was much easier to grasp than a static presentation with a lecture ever would have been.

Applications and programs

Innovative programs and apps represent further leaps forward in medically demonstrative technology. One of the latest lets a jury view specific parts of the body in detail. An expert or attorney can pull up the application on his or her iPad and view the human body layer by layer—they can choose to display the skeleton, or the digestive system, or the nervous system, etc. It’s an excellent way to give juries a close-up look at the human body—and to keep the jury’s attention.

An expert on the witness stand explaining a nerve injury can click an image to show exactly how an injury occurred from multiple angles. The expert can show the view that a surgeon would see while operating, and illustrate (for example) where the surgeon made an error. It’s far more vivid and effective than an old-fashioned two-dimensional presentation.

If you’re thinking you’ve seen something similar on television recently, you probably have. It’s the kind of tech that CSI and other shows have used for a long time—though it’s taken longer to make its way into real-world courtrooms.

Giving expert witnesses authority

Another advantage of medically demonstrative technology is that it gives expert witnesses more authority. Equipped with medically demonstrative tech, expert witnesses become teachers who can show how something happened and why, rather than just lecturers who recite their version of an event. To a jury, a teacher who can demonstrate what happened and why is more appealing than a dry lecturer. Plus, when an expert witness projects the authority of a teacher, it’s harder for a defense attorney to accuse the expert of not being objective.

As is the case with any witness, however, there are sometimes questions of accuracy when experts use medically demonstrative technology. Judges want to know if the software program or app is correctly showing what it claims to show. As such technology becomes more commonplace, precedent can help establish its accuracy. Nevertheless, we still make sure our experts can vouch for the technology they use in each individual case. In the case of an app that creates a custom model from actual medical records, for example, we need to be sure the model is accurate and that the expert is familiar enough with the model to say so.

We also must ensure the technology presents a model clearly and accurately because we may only have one opportunity to present it to a jury. Much of the time, jurors can’t ask to see a medically demonstrative technology display again the way they can re-examine a photo or medical record that has been entered into evidence.

Personal injury or wrongful death case?

We believe it’s important to use every available tool to fight for our clients in personal injury or wrongful death cases, and medically demonstrative technology is but one of those tools. If you’ve been harmed and need legal assistance from Ohio civil litigation attorneys who work only with the best experts and tools, give us a call.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Subrogation, Private Health Insurance and Your Personal Injury Settlement

In previous articles, we’ve shared the basics of subrogation and how it relates to Medicare and Medicaid. The rules that govern subrogation for Medicare and Medicaid are different than those for private health insurers. In this article, we’ll discuss subrogation as it relates to private insurance and ways we can help our clients minimize its effects on their personal injury settlement or judgment.

Private insurance subrogation laws

Unlike Medicare and Medicaid, in which subrogation rules are part of the laws and regulations that govern the programs, private insurance subrogation rules are contained in insurance contracts. And while Medicare reduces its subrogation to account for fees and costs, and Medicaid limits the amount of a settlement that can be taken via subrogation, private insurance may have no such restrictions.

Unfortunately, many people get health insurance through their employer (or the Affordable Care Act), and there’s not a lot of room for shopping around and the contract terms are non-negotiable.

Example of a worst-case scenario: In a car accident, when one driver is hit by another, the victim’s health insurance company pays $50,000 to cover the medical expenses. A lawsuit is filed against the offending driver, but because the driver has minimum auto insurance limits, it recovers only $25,000. The language in the injured person’s health insurance contract might give their insurer the right to recover every dollar it paid on their behalf originally. So, the $25,000 recovered in the lawsuit would go directly to the plaintiff’s health insurance company.

It’s hard to understand, given that people pay premiums for their health insurance and expect that they’re getting something for what they paid for. Many are shocked to learn that their insurer doesn’t have to bear the risk of having to pay their medical bills.

Ohio civil litigation attorneys examine the fine print

Frequently, there are ways we can fight subrogation claims on our clients’ behalf. First, we try to make sure our clients pay no more than they’re legally obligated to by diligently reviewing the language in the insurance contract. Unless the contract uses certain proper and precise language, the insurance company may not be able to make a claim on the settlement at all. There are some conditions that could prevent subrogation claims:

  • No contract – Insurance companies are sometimes unable to produce a written contract for examination, but they might try to assert a subrogation claim anyway. Without having a contract to back up such a claim, they’re out of luck.
  • Timing – We check to make sure that the exact subrogation language in the contract the insurer is trying to apply was in effect at the time of the accident. For example, if an accident occurs in 2015, but the subrogation language in the contract didn’t go into effect until 2016, then it can’t apply to that case.
  • Agreement with state law – Some private health insurance contracts are governed by state law. In those cases, if the contract language in question doesn’t meet the requirements of Ohio subrogation law, the insurance company may not be able to claim some or all of what it paid.

What if the subrogation language is binding?

Even if we’ve verified that the contract language is sound and the right to subrogation as written in the contract is valid, we still have options. Insurance companies don’t want to spend a great deal of money collecting subrogation payments, so the possibility of having to go to court often prompts a company to negotiate.

Another option—we sometimes think of it as the secret weapon—is to negotiate a reduction of the subrogation claim by threatening to drop the lawsuit altogether. The threat of exercising this option can persuade the insurance company to negotiate on subrogation because without the personal injury case, there would be no settlement from which to collect. This approach is absolutely one of last resort, of course. But if the subrogation claim would swallow up all of our client’s recovery, it may be the only way to get the health insurer to negotiation.

There are many things to consider when you’re facing the threat of losing a personal injury recovery to a subrogation claim. If you could use some assistance navigating a messy subrogation battle, give the Ohio civil litigation attorneys at Cooper & Elliott a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

How Subrogation Works with Medicare and Medicaid

In our last post, we outlined the basics of subrogation. Briefly, subrogation is the right of someone besides an injured person to recover something out of a personal injury case.  Subrogation works differently depending on the type of insurance involved. Medicare and Medicaid have different sets of rules from private insurers. In this post, part two of the series, we’ll discuss subrogation as it relates to Medicare and Medicaid.

How subrogation works with taxpayer-funded insurance

Medicare and Medicaid are government run programs, funded by taxpayer dollars. The intent of subrogation in these programs is to offset taxpayer responsibility for the related healthcare costs.

Subrogation rules are written into the statutes that govern Medicare and Medicaid. Virtually always, if Medicare or Medicaid paid medical expenses incurred because of a personal injury, there will be at least some subrogation payment from a personal injury judgment or settlement. But the good news is that—unlike the subrogation rules for private insurance—the Medicare and Medicaid subrogation rules take the plaintiff’s costs and other circumstances into account.

Medicare

In a case involving Medicare, the subrogation payout is set by a formula. The amount paid is reduced in proportion to the plaintiff’s attorney fees and expenses.  This is an attempt to account for the fact that the plaintiff incurs costs and attorney fees from pursuing a settlement or judgment.

Recent changes in Ohio Medicaid subrogation law

The rules for Medicaid can vary from state to state because unlike Medicare, which is a federal program, Medicaid is run by individual states. Some recent federal rulings have led to changes in Ohio law about Medicaid subrogation.

In personal injury cases where Medicaid had paid for medical expenses and the expenses exceeded the plaintiff’s settlement or judgment, Ohio law used to provide that 50% of the plaintiff’s recovery represented medical expenses applicable to medical bills. But in many cases, a smaller percentage of the plaintiff’s recovery represents medical expenses, and the larger percentage compensates for pain and suffering, or other costs. That meant that it wasn’t especially fair for a Medicaid subrogation claim to be based on 50% of the plaintiff’s recovery when only a fraction of that was intended to compensate for medical bills.

The U.S. Supreme Court recently ruled that states can no longer require that a fixed percent of any recovery is subject to Medicaid subrogation. Subrogation payouts are applicable only to the part of a settlement that represents compensation for medical bills paid by Medicaid and not compensation for pain and suffering or other costs. The ruling is logical, given that subrogation is supposed to help offset the cost of medical care paid for by the government.

Also, this court ruling means that the subrogation amount must be in the proper proportion to the judgment, based on the facts of the plaintiff’s case. Attorneys can work to protect portions of the judgment from subrogation, and they can make sure there’s an administrative hearing if the proportions are disputed.

Getting the percentage right

Ultimately, our goal with Medicare and Medicaid cases is to make sure that when the subrogation formula is applied, it’s applied for the correct medical costs (not for unrelated expenses or ones incurred before or after the events for which the plaintiff recovers), and that it applies only to the appropriate portions of the recovery.

Subrogation involving private insurers can be very different, because the rules are part of each individual insurance contract and not set specifically by law. We’ll discuss that in a future post. But whether your case involves subrogation or not, give the Ohio civil litigation attorneys at Cooper & Elliott a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Subrogation in Personal Injury Cases – Why, and What Is It?

For people who have been harmed by someone else’s wrongdoing, a civil judgment or settlement is a crucial step towards healing. That healing includes the emotional release that comes from a court agreeing that they were not at fault, but it also includes the only remediation our court system is permitted to offer—money.

However, for many of those people, that financial relief could disappear suddenly because of a common clause in their insurance policy—the subrogation clause. In brief, subrogation allows an insurance provider the right to reclaim some or all of what they paid for medical care from a patient’s civil judgement or settlement. Medicare and Medicaid have subrogation rights under the law, and many private insurance policies have subrogation clauses in one form or another.  But that doesn’t mean you have no recourse.

Over the course of this 3-part series, we’ll be looking closely at what subrogation is, and how it can be minimized.

Subrogation in public vs. private insurance

To understand the details of subrogation, it’s important to first understand that there are two different kinds of insurance providers and they each handle subrogation differently. The first is public, funded by the government, through Medicare and Medicaid. Subrogation is part of the law for Medicare and Medicaid programs. In nearly all applicable cases, some subrogation money will be taken. Even after trying to negotiate the amount down, there’s often still a minimum amount these government programs will take, and there’s no escaping it. But at least for Medicaid cases, the law also caps the amount, which assures that the injured party will get to keep at least some of the settlement.

The other type of carrier is, well, everybody else—all private insurers. Although their right to subrogation is also governed by state or federal law, rules for subrogation primarily depend on the written terms in the insurance contracts these companies sell. Some contracts may say little or nothing about it (thus you may be able to avoid subrogation claims altogether). Others may contain some very potent language, and the insurer may have the right to take your entire settlement to cover the amount they paid out.

How is subrogation possible?

The most common reaction we get when people learn about subrogation is shock. It makes sense to assume the money you pay for insurance, either through premiums or taxes, is supposed to purchase coverage. It doesn’t seem fair for insurance companies to then take part of the judgement or settlement as well. The counter-argument is that you signed a contract and are therefore beholden to the terms of that contract—no matter how unfair they seem.

The problem is that you may not have had much choice in the matter. If you get your insurance through your employer (or the Affordable Care Act), it’s a take-it-or-leave-it situation. You, as a single private individual, can’t negotiate the contract language. You’re stuck with whatever subrogation rules are in the policy that covers you.

The idea of subrogation is that it will offset the cost of insurance and keep costs from going up. So it’s easy to understand why Medicare and Medicaid use it, since they’re funded by taxpayer dollars. It’s harder to see a good reason (for parties other than the insurer) for private companies to use it, because subrogation-friendly judgments have not kept the cost of insurance from rising. But whatever the reason for it, subrogation is a fact of life. Medicare, Medicaid, or your private insurance may be legally entitled to a portion of your settlement.

Civil litigation attorneys can help

The good news is that you may not be stuck. There are legal remedies that could help. In upcoming articles on subrogation, we’ll get into more detail about the specifics of public vs. private insurance subrogation claims and how they can be mitigated.

But if you’re caught in a subrogation mess right now, the Ohio civil litigation attorneys at Cooper & Elliott are happy to talk to you about it. Give us a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Positioning the Jury as the Protagonist

For personal injury and wrongful death attorneys, clear, effective communication is a vital element of any successful case. A key theme we’ve discussed before is how good communication with our clients enables us to seek justice and healing on their behalf. In this post, we’re going to examine effective communication from another perspective: that of the juror.

The story of a case

In a sense, communicating to a jury is much like storytelling. What we’ve found works best is to make jury members feel as if they’re protagonists in our client’s story. We want them to understand that while the story may have started with our client and the defendant, it’s now in their hands to determine the story’s ending. We remind them of the power they hold to change someone’s future.

How to tell the story

Many other attorneys may employ the tactic of showcasing their client’s struggles in the aftermath of the defendant’s bad behavior. This technique helps the jury understand the client’s injuries so the jury will want to act in his or her favor—which is a fine place to start, but we take a slightly different approach: we focus on the defendant’s conduct.

Especially in this world of conservative juries and the supposed need for tort reform, it can be extremely important to focus on a defendant’s wrongful conduct or detail the rules they’ve broken.  Juries need to understand why a defendant’s conduct violated the explicit or implied rules and standards that everyone expects all members of the community to follow to keep the community safe. So, during all parts of the trial—opening statements, presenting evidence, and closing arguments—we focus much of our storytelling effort on the defendant’s conduct and how it violated community standards.

This approach also makes sense from a purely legal perspective. In civil litigation, the plaintiff can’t ask jurors to put themselves in their shoes (what’s known as a “golden rule argument”), because judges want juries to objectively consider the facts of a case, rather than respond in an emotional manner. Concentrating on the defendant’s wrongdoing and how it violated community standards helps ensure objective decision-making.

Clarifying the rules

It’s important to establish and emphasize the safety rules in question, and then show how the defendant has breached those rules. “Safety rules” often take the form of laws or regulations designed to protect people in a community. Traffic laws, for instance, are well documented safety rules—an accident caused by a driver who runs a red light, is a straightforward example of a broken safety rule which results in negative consequences.

In other circumstances, when there isn’t a specific law or regulation to point to, the recognized standards in the defendant’s industry or community serve as the safety rules.  A plaintiff often establishes those rules through expert witness testimony.  In medical malpractice cases, for example, an expert witness—a competent general practice doctor or surgeon—can help the jury understand what standard of care should be expected in a given medical situation. And sometimes, even the defendant’s own employees or representatives admit that a certain safety rule applies.

By using testimony from expert witnesses and from the defendant’s own representatives to establish safety rules, we take a difficult concept that most jurors don’t have direct experience with and break it down into something they can understand.

Jurors: Voices of the community

We strive to present our case in a way that lets jurors see themselves as active protagonists in the story that results in justice being served. We reinforce that their role is more than just listening to two opposing parties presenting evidence—it is to act as the voice of their community, and in essence decide what their community’s standards of care and safety rules are and will be.

How we communicate this idea varies with the facts and nature of each case. For instance, we had a business case where one of the themes we emphasized was simply that there should be more morality in business. There had been so many stories in the news about businesses acting dishonorably that we decided to emphasize a community standard of not giving a “free pass” for wrongful conduct just because it occurred in the business conduct. We reminded jurors that through their verdict, they could act as the voice of their community and deliver a powerful message. Their message could establish that morality is important in their community—even in business—and that the community would not tolerate the type of conduct that the defendant tried to get away with..

That kind of power and responsibility can be an excellent motivator for jury members to do the right thing on behalf of our clients and their community.

Connecting through honesty

Finally, how we communicate to juries is just as important as what we communicate. As a trial lawyer, to be the most effective we must open up and connect with the jury on a personal level.

While legal argument is important in each case, we try not to hide ourselves or our clients behind complex legal language.  We let our personalities come through so we can connect with jurors as people. Connecting with someone this way leads to better communication, which in turn makes it more likely that jurors will understand your case.

Authenticity is something we pride ourselves on—a core principle of our firm, in fact—and it sets us apart from other trial lawyers. Other attorneys may also use some of the techniques discussed here, but doing so without establishing a rapport and personal connection with jurors tends to make those techniques ring hollow. Authenticity is key.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

For Justice in a Personal Injury Case, There’s No One-Size-Fits-All Strategy

One thing is consistent about our cases: no two are alike. That means we have to closely look at each personal injury case based on its own unique circumstances in order to best serve our clients. The case that follows is a perfect example. By looking beyond the conventional wisdom for such incidents and crafting a strategy based on the specific details of the case, we were able to help a young man find justice — and an opportunity to rebuild his life.

Steve’s life was changed forever

Steve Olson*, 21, was a student at Ohio State University. One night, as he was leaving a local bar on campus, another patron began yelling at him. Apparently the angry patron had mistaken Steve for somebody who had caused an argument in the bar.

The angry man rushed out of the bar’s back-patio emergency exit and shouted at Steve, and as Steve turned around the man sucker-punched him in the face. Steve fell and smashed his head on the ground, sustaining such severe trauma that doctors initially told his father he would likely die.

The good news was that Steve lived. However, he had lost all hearing in his right ear and much in his left, and he spent the next few years recovering from complications caused by the attack.

Identifying the negligence

Working as Steve’s personal injury attorneys, at first glance our next step would seem clear: pursue action against Steve’s attacker. But in the course of the events above, there was a crucial piece of information that changed our strategy. The angry bar patron didn’t just leave the bar on his own. The bar’s security personnel willingly allowed the enraged attacker to leave the bar through an emergency exit so he could chase Steve down.

Think about it: Why does a bar have security? To control crowds, make sure fights don’t break out, and ensure people don’t get hurt. But what happened on the night of Steve’s attack? A man was screaming over the fence trying to get at Steve, and rather than trying to calm the situation down, a security person opened an emergency exit and let the angry man run out.

We argued that the security person’s negligence was tantamount to putting a bullet in a gun, because his actions led directly to Steve being harmed.

Competing arguments: Where was the negligence?

When we sued, the bar and its liability insurance company refused to take responsibility for what had happened.  The insurance company argued that since Steve’s injury clearly hadn’t taken place on the bar’s property (it had been outside, near a public street), any negligence by the bar also hadn’t occurred on the bar’s property. By this logic, the bar — and the insurance company — would be off the hook for damages.

And truthfully, other personal injury lawyers might likely have looked at this case and agreed with the insurance company.

That didn’t seem right, so we made a creative argument. While the injury might have occurred off the property, the negligence occurred on the property when that bar’s security personnel allowed a large, drunken, hostile patron out through its emergency exit. Once the insurance company’s lawyers realized there was a good chance our argument would win, the insurance company settled the case.

The result? Steve received a substantial settlement without having to fight in court, which could have taken years to finalize. Steve’s attacker also spent some time in jail for the assault.

A personal injury case’s best outcome

While a substantial settlement sounds good, that money actually supports the real victory. A permanently impaired young man — someone who couldn’t get back to college, who almost died, and who had lost two years of his life — now had the means to get back on his feet again.

And justice wasn’t important only to Steve. Throughout the whole ordeal, his parents and siblings had been through an emotional wringer. With the settlement and end of the case, they too could breathe a little easier about Steve’s future.

Getting involved

This personal injury case was significant to us for a couple of reasons. First, it reaffirmed how justice can be served by creative thinking, a close look at the details, hard work, and going the extra mile.

Why did we go that extra mile to find justice for Steve?

The answer: personal involvement. When we took on Steve’s case, we also took on Steve and his family. We watched their struggles, tried to understand their pain, and provided moral support and advice wherever we could. We did our best to see the situation through their eyes.

When you make the effort to stand in somebody else’s shoes after such a tragedy and fully understand what they’re going through, you become invested. That is why we take on personal injury cases like Steve’s, and that is why we exhaustively look for any possible way to ensure our clients receive the justice they deserve.

It’s what any of us would do for the people we care about.

*Names in this article have been changed to protect our client’s privacy. 

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.