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The Importance of the Napkin Deal

One of the most important laws that govern personal injury practice was written on a napkin at Frank Fat’s in 1987. This significant historical event related to plaintiff’s personal injury law occurred on the evening of September 10, 1987. Present that night were lobbyists for the tobacco industry, doctors, manufacturers, insurance industry representatives and plaintiff lawyers. Negotiations were led by elected legislatures, Willie L. Brown, Jr and Bill Lockyer. The goal of the dinner was to create tort reform that would accommodate the interests of everyone and negotiate a truce in the ongoing tort reform war that was raging at the time.

This deal was written on the back of a napkin thus becoming known as the “Napkin Deal.” It changed existing laws related to product liability, medical malpractice and punitive damages in California. The agreement became Senate Bill No. 241, which was quickly passed into law that same year in 1987. This “Napkin Deal” amended Business and Professions Code § 6146 which limits the amount of contingency attorney fees a plaintiff attorney may charge to prosecute a medical malpractice case.  

Any lawyer new to personal injury law must understand the laws that were impacted by the Napkin Deal.  For example does your state have attorney fee caps on medical malpractice cases? What is the standard of proof in your state to prevail on a punitive damages claim?  Finally, are the products in your state that have immunity from legal liability? To be a competent personal injury lawyer, you need to know the answers to these questions.

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You can read the Legislative Counsel discussion of the “Napkin Deal” here. The agreement gave the cigarette companies immunity in California starting in 1987, but that immunity came to an end ten years later on September 29, 1997. Here is the California Civil Code 1714.15 in its current state.

Understanding Health Insurance Liens and Their Importance to Anyone New to Personal Injury Law

Anyone new to the personal injury law practice must understand health insurance liens. In a personal injury case, a lien claims arises when an insurance company or government agency pays the medical bills of an injured plaintiff, who later makes a recovery against the negligence person’s insurance company.  

A good way to learn about liens is to understand the history of lien recovery.  Prior to 1988, health insurance lien claims were relatively uncommon. That all changed in 1988 when Patrick B. McGinnis left his job at a large health insurance company and started Healthcare Recoveries in Louisville, Kentucky.

Healthcare Recoveries attempts to recover money paid out in claims for health insurance companies they represent.  A personal injury plaintiff, with health insurance, will have their medical bills paid by their health insurance company post accident.  Healthcare Recoveries researches the accident and uses, right to recovery language in the fine print of the health insurance contracts, in an attempt to recover the money the plaintiff and her attorney, which they received from the negligent defendant.  This 1996 article details the early story of Healthcare Recoveries, it’s success, and growth.

Fast forward to 2015 and you can see where Healthcare Recoveries stands today. This article shows what Mr. McGinnis’s original idea has become today.  Reading these articles will help you understand why you, the new personal injury lawyer, may be receiving letters from Equian, which has a web page called “got-a-letter.”

Here are three important legal decisions that will help new personal injury lawyers begin to understand the world of personal injury liens.

1. The United States Supreme Court’s decision in Arkansas Department of Health and Social Services v. Ahlborn, 547 U.S. 268 (2006) (“Ahlborn”) provides a framework to determine what portion of a settlement, judgment, or award represents payment for medical expenses or medical care, provided to an injured individual by their insurance company.  The key question to determine is what is the appropriate reimbursement amount for the insurance company that Equian represents.

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2. The California Supreme Court in Fitch v. Select Products (2005) 36 Cal.4th 812, explains the effect of a pure wrongful death claim on MediCal’s attempt to assert a recovery against a wrongful death only recovery.  Fitch is a good case to read for its discussion of the types of damages that are available in a “survival action” survival action C.C.P. 377.62 and a wrongful death claim, C.C.P. 377.60.

3. Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan (2016) 136 S.Ct. 651, introduces you to how the ERISA law applies to health insurance liens in the context of a personal injury recovery.  Montanile, involved a health insurance plan that was attempting to reach the plaintiff’s portion of a $500,000 settlement secured against a drunk driver defendant.

In Signup to Settlement: A Personal Injury Bootcamp, we help you understand how to learn to respond to letters from Equian and reduce the amount of Equian’s claim, which means your client gets more money in their pocket.

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New Personal Injury Lawyers: You Can Always Phone a Friend

In the lead up to the launch of Signup to Settlement: A Personal Injury Law Boot Camp, we asked our followers what their number one F.E.A.R. (False Expectation Appearing Real) was about beginning to practice personal injury law. One response was, “I am afraid I will make a mistake and lose the case.” Another lawyer responded, “I don’t want my client to lose, based upon my lack of knowledge and skill.” Let’s unpack these two answers and see what we can learn.

Practicing personal injury law is like a baseball game: generally, you will have time to think about what you need to do, before you are forced to act.

Let’s imagine you are the shortstop for your baseball team. It’s the bottom of the ninth inning, the bases are loaded with no outs, and the game is tied. Suddenly, you realize you have no idea what you are going to do if the ball is hit to you! What should you do? Call “time out”, meet with your teammates and determine a strategy. Problem solved. Now you know what to do, play the infield in and, if the ball is hit to you on the ground, throw home for the force play.

When practicing law, you can always “phone a friend”. Remember the television show Who Wants to Be a Millionaire? If a contestant did not know the answer to a question, they could phone a preselected friend. When practicing tort law, you can phone anyone you want! This includes other plaintiff personal injury lawyers.

Here is the beginning of a solution:

 Step one, when starting out as a new personal injury lawyer, is to have lunch with three of four established plaintiff personal injury lawyers.

These face-to-face meetings will open the door for you to call or email these lawyers with questions. Further, the Consumer Attorneys of California and the American Association of Justice have list servers that allow you to post questions to hundreds of plaintiff lawyers at the same time. Caveat. All new personal injury lawyers need to familiarize themselves with their jurisdiction’s applicable statutes of limitations for personal injury, property damage, professional negligence, medical malpractice, government liability, fraud, breach of contract, and product liability cases. Some jurisdictions have very short government claims limitations. Also, you never know when a person will decide to contact you the day before the applicable statute of limitations is running. You need to be able to identify those circumstances.

 Second, with serious injury cases, be careful to protect and preserve any product that could potentially give rise to a product liability case.

It’s hard to make a product liability claim without the product. In serious car accident cases, the vehicles need to be properly recovered and stored. Automobile crashworthiness or defect cases depend on an analysis of the vehicle post-accident, to determine a theory of liability. If a fire was arguably caused by a defective product, that product needs to be properly preserved and stored. When first talking with prospective clients, keep an eye out for evidence that needs to be preserved while the potential for a claim is being investigated.

In summary, most automobile and premise liability personal injury claims are straightforward and can be handled by newer lawyers that have taken the time to educate themselves about the basics of personal injury law. Remember, if you are unsure of what to do next, phone a friend. If you are interested in learning more about what it takes to be a competent personal injury lawyer, check us out at http://signuptosettlement.com/bootcamp.

Three Common Rookie Mistakes New Personal Injury Lawyers Make

Rookie mistake are avoidable errors that new lawyers without the perspective of experience will often make. Expert witness discovery is an area of personal injury law where new lawyers can make mistakes. Here are my top three rookie mistakes applicable to expert discovery in a personal injury case.

– Rookie mistake #1 – failure to understand the distinction between a retained treating doctor and a non-retained treating doctor. Not having a clear understanding of the ramifications of these distinctions can result in a host of problems for the new PI litigator. In this context the term “non-retained” means a doctor that has not been hired and paid to review medical records and provide opinions. It gets tricky because treating doctors are both experts and percipient witnesses. A treating doctor acquires, independent of the litigation, personal knowledge of relevant facts, and has training, skill, and experience which enables them to form an opinion about those facts. The case of Schreiber v. Estate of Kiser (1999) 22 Cal. 4th 31, explains the ramifications of this distinction.

– Rookie mistake #2 – Failure to meet with your client’s treating doctor before a trial date is set to determine if they are willing to act as a retained treating doctor in the case. Meeting face to face with your client’s treating doctor well before deadlines and cut offs are present improves the chances that the treating doctor will agree to review the records and prepare to give a meaningful deposition. Not waiting until the last minute shows the doctor by the example of your preparation, that you will be easy to work with when the trial date is scheduled. At your face to face meeting you may learn that the treating doctor is not willing to review the medical records and provide opinions for trial. Guess what! Because you found this out early, you now have plenty of time to go hire another expert to review your client’s case and give opinions at trial. Finding out a treating doctor is not willing to cooperate is something that needs to be learned early on in the case, otherwise a host of problems will occur.

– Rookie mistake #3 – Not making your retained experts available for a meaningful deposition. Retained expert witnesses must be produced for deposition. A subpoena is not needed to compel a retained expert to show up for their deposition. If noticed, it is the obligation of the party who has retained the expert to reasonably make their expert available for a meaningful oral deposition. The best way to do this is by securing some good dates for your expert’s deposition before your expert is formally disclosed. This puts you ahead of the game.

Don’t wait for the deposition notice from the defendant to arrive before trying to secure some workable dates and times. By then it may be too late. Remember doctors are busy, they see lots of patients and do lots of surgeries. Be proactive and send a letter to your opposing counsel which sets forth the dates that will work for your expert’s deposition. If scheduling becomes difficult, you will have written proof that you provided available dates for your expert’s deposition early on in the expert discovery time window. Preparation and forethought equals less drama, less drama equals less stress!

If you are interested in learning more about rookie mistakes new plaintiff personal injury lawyers can avoid, check out my free video, “The Top 10 Rookie Mistakes And How To Avoid Them.

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