(Transcript)

Cindy Speaker: Good afternoon and welcome to Facebook Live. We have a great broadcast for you today. I have as my guest Dave Miller. Dave is a personal injury attorney with Michael J. O’Connor and Associates. He’s going to cover a few different topics today. We’re going to start off with things to avoid after a car crash. Then we’re going to talk about some special considerations regarding motorcycle accidents. Then Dave is going to talk with us about a term that a lot of us don’t understand and that is tort reform as well as some federal legislation that may impact our claims in Pennsylvania.  Dave, thanks for being with us today.

Dave Miller:  Thank you Cindy. Good afternoon.

Cindy Speaker:   Nice to have you. Well Dave let’s start off by talking about some of the things to avoid after a car crash.

Dave Miller:  Certainly this is a pretty broad list, but let me try to focus on some of the most important ones. I think the most obvious is don’t leave the scene without gathering all the information. There’s a lot of info to gather after a car crash. The obvious things are the other driver’s information, the owner’s information. A lot of times those are two different people. It’s very important to get both of those individuals’ information. The insurance card, take down the insurance company, the policy number, effective dates. Be careful look at those effective dates make sure the policy card you’re looking at is the one that you should be looking at. If they can’t provide you with that, an active card that shows there’s coverage on that day, then you certainly want to get in touch with the police and have them show up. Last thing you want to do is be in a situation where it’s your word against their word and there’s no insurance company there to step in to deal with.

Another big thing is witnesses. Not always on car crashes do the folks that saw what happened stay to provide their name and contact info and also a statement. If they’re there, it’s very important to get their information and to get a statement from them. Like I said before if it’s a matter of your word against the other driver’s word and there’s a question about who’s at fault, it’s very nice to have that independent party to have the statement that’s on your side to solidify the liability analysis.

Dave Miller: Also, take as many photos of the scene as you can. They always say think about each vehicle as a clock and take a photo from each hour on the clock, take a wide angle screen picture so you can see the actual intersection any street signs, any lights, anything like that that would control the intersection. More is better than less when it comes to photographs. In this day and age just about every phone has a camera on it. If you happen to have an accident kit in your car, use up all the film that you have. It’s better to have more than not enough.

Lastly, contact the police. Sometimes crashes get, individuals get heated after a crash, emotions are running high, you never want to get in a position where a crash turns into an argument, the sooner you can get the police to the scene the better and that’s for all that information that I just mentioned as well. It’s nice to have that independent gatherer of information who has been trained to do that as well.

Cindy Speaker:  Yeah. Dave, how much of this information will the police get? Will they get witnesses and those types of things?

Dave Miller:  Yeah if they show, hopefully they’ll be there sooner rather than later. Obviously, that depends on location of the crash and many other factors, but yeah all that stuff that I mentioned would be then contained in a formal police report if the full report is done, if it’s more of just an accident information exchange maybe not all that information, but just about all of that information will make its way onto that accident exchange report.

Quite honestly, the two biggest items are the insurance information as well as the witnesses is the fault analysis. Sometimes it can be you think it’s a clear rear end accident, but once it gets in the hands of an experienced adjuster who knows how to turn things around a little bit and creates a question. Those witnesses are very important to have.

Cindy Speaker:  Yeah. Well you know my nephew had an interesting situation an unfortunate situation relevant to this just a month ago. He was in a car accident where someone hit him. My nephew thought it was clear liability, but the police talked to the other person first and my nephew ended up being assigned the fault in the police report. We were shocked because he has a terrible mess to deal with now. I mean I don’t know that you can always completely trust the police report. I don’t know. Is that true?

Dave Miller:  That’s very true Cindy. Yeah, there’s very many times where we get the crash report and they … Say our client was very seriously injured had to be ambulance to the hospital, never got a chance to talk to give the statement. Well if the only person that the responding officer talks to is the person at fault and they know that they just caused some major damage, they’re going to try to make it sound as good as possible and maybe even fabricate what really happened to avoid liability. Then it is, it’s a big hurdle to go back and have the responding officer do the followup interviews, change the report if necessary. It becomes a mess you don’t want to have to deal with, put it that way. Then like I said the insurance adjuster is the one that’s going to be looking at the information. They weren’t at the scene. They don’t know what happened. It just creates a little bit of doubt in the case.

Cindy Speaker: Yeah, I really like what you said about taking the picture from every angle as on a clock face. That’s interesting. It’s something that if someone would go to the trouble of doing that, if we were all better educated so that we did that type of thing in an accident I would imagine it would go a long ways to really telling the full story. I think that’s an important point Dave because it’s probably rarely done, but it’s a great tip.

Dave Miller:  Yeah, absolutely. So many times we get a clients, here’s 20 photos I took but they just happen to be all of the same angle. It’s unfortunate because it doesn’t give you the whole picture. Sometimes there’s damage on different parts of the vehicle that weren’t actually impacted, but you can see crimple zones. You can see some things you wouldn’t otherwise expect to see even if it’s a rear end accident, take interior pictures because you want to see how the things inside the vehicle reacted to the impact as well. We’re talking about applying forces on objects including the person that was driving or was a passenger in the vehicle [inaudible 00:12:32] you can see maybe a briefcase that was in the back seat now ended up on the dashboard after a rear end accident. That helps to explain the story a little bit.

Cindy Speaker: Yeah, yeah. One other question I have is is it important to have the police come to the scene of the accident regardless of the severity?

Dave Miller: I’m of the belief and I can speak from personal experience on this one that you are better off having the cops show up and say just exchange information, if you want me to do a report that’s fine. I feel more comfortable that way because I have been in some circumstances where there’s been doubt whether or not my client was even involved in the crash. We’re bringing a claim against the insurance company and maybe they were a passenger in the vehicle, but there’s no indication that they were ever involved and that raises some flags on the insurance company’s standpoint. If we can have at least an information exchange form completed by the responding officer that includes all the people involved that just eliminates that whole hassle right there.

Cindy Speaker: Yeah, yeah that makes sense. Let’s switch gears a little bit and talk about some special considerations related to motorcycle accidents.

Dave Miller:  Certainly, the biggest consideration at least under Pennsylvania law when you’re involved in a motorcycle crash is that there are no what we call first party benefits available to an owner or operator of a motorcycle. The first party benefits pretty just on basic terms are medical coverage and wage loss benefits. Those are the items people normally think about on automobile policies and just to give the full background on that, when you’re involved in an automobile crash your auto insurance company is responsible for paying your bills up to the amount of coverage you have.

Motorcycle policies you can’t … It’s in the statute, that’s not available to you at all and the same is true for wage loss benefits. Medical benefits are mandatory on automobile policies. Wage loss benefits are optional. In any event, in a motorcycle crash neither of those are available to you, so the special consideration is, now what? What does this individual do? How do I get back on my feet as soon as possible? What we do is we look to other insurance that they may have. Hopefully, they’ll have a health insurance policy to pay the medical bills and then also hopefully they’ll have either a short-term disability policy or some other plan that perhaps like an Aflac plan that would provide some benefit to them to get them back on their feet to fill that gap.

The motorcycle crashes that we see unfortunately involve more significant injuries. People are more likely out of work for a period of time, more significant medical bills. Those are really the biggest and most immediate concerns for the clients that we’ve had.

Cindy Speaker:  Well that makes sense. Let me ask you this because in both of these situations there’s some complexities to it. How can an attorney help in these situations?

Dave Miller:  Well an attorney that practices in this area of law will hopefully at first bring some comfort to know that they’ll take all of these issues off of the individual’s hands because quite honestly they sound straightforward, but each one of these steps to report a claim, how to do it properly, how to fill out forms properly, who am I supposed to be talking with, who not. That’s best handled by an attorney who’s experienced in this area of law. The worst thing … I hate to see a client come in that has already filled out forms and has maybe said something about I think maybe I could have done this different and created an issue of fault in an application or for that to add up, a [body part 00:16:32] in the injury description.

The attorney knows how to fill these things out. Their staff knows how to work with their medical providers to get the information necessary to the adjuster. The biggest thing is to make sure that the benefits available are applied [inaudible 00:16:50] properly and then are paid out the way they’re supposed to be paid out as well and not cut off. A lot of people don’t think that once they apply and start getting benefits well they’re in great shape. A lot of insurance companies now are taking the steps of trying to cut the benefits off early either by saying they’re having excessive treatment or they can get back to work sooner than their doctors are saying. That becomes sort of a case within a case.

If you have an attorney on board right away [inaudible 00:17:19] can prevent your benefits from being halted too early, that’s going to help out on the back end when you’re dealing with the other driver’s insurance company and trying to work out a settlement or trying to get the proper jury verdict for the case.

Cindy Speaker:  I’m always troubled when I hear the commercials on TV that talk about how great the insurance company is and how they’re always on your side and things like that. I think that’s important because if you come into the picture if an attorney comes into the picture my understanding is, you’ll deal with the insurance company, is that correct?

Dave Miller:  That is correct. We’ll step in and all communication will go through our office. We’ll send letters out right away. That’s the first letter we send out as soon as we sign up a new client is we send it to any adjusters that we know. On the fly, I will say I will say do not contact our client directly. If you need something, just call us or send us a letter and we’ll get it to you. That’s just avoids them cherry picking for information that might be beneficial to them to diminish the value of the claim, but obviously very hurtful to the client.

Cindy Speaker:  Right. Right. Now how long do these claims … What is the timeline for most of these claims and do they settle or do they go to court?

Dave Miller:   Well if we’re talking about a motorcycle or a car crash and it’s a run of the mill type of case our timeline in house is we expect to have that case worked up for either a settlement or we’re going to file the case in within 12 months of the crash. Obviously there’s many variables that go along with that, depends on medical treatment, recovery, [naudible 00:18:57] out of work, things like that. We never want to settle too early. We always say we want to … When the client gets to a plateau of treatment, when we have a clear idea of what the future looks like for them where we can get an assessment and value that that’s when we’ll take the steps and try and settle the case. If not or if we think treatment is going to be more of a lifetime situation, then we’ll file the case.

On a standard track case, we try to get it to trial about 12 to 16 months from the filing of the complaint. It’s not a sprint. These cases can take a while. If it’s the more complex case where you have multiple defendants or maybe some liability issues, you can talk more about 24 to 36 months by the time you’re in a courtroom in front of a jury. Now the good news is all along that timeline there’s opportunities to try to resolve the case. I think the percentages are probably still at about 97 or 98% of all cases settle at some point before trial so not a lot of cases go to verdict.

There’s a good reason for that. There’s risks on both sides. If we can control an outcome or we think that we can achieve a reasonable result for the client that’s when we’ll recommend a settlement. If we feel they’re being shortchanged or the insurance company isn’t giving full value, then there’s only one option. You have to put their feet to the fire and take them to a jury. That’s the end game here. We prepare all our cases like we’re going to trial. From day one we start building up that trial folder. Our demand packages are very similar to our pretrial statements. I think that helps get cases resolved when they know you’re serious about … You’re not just here to settle the case. You want to take it to trial.

Cindy Speaker: Dave talk a little bit about how the attorney is paid because I know people have questions about that. The idea of hiring an attorney a lot of times they think, “Oh no I can’t afford that,” but how is an attorney paid in these types of situations.?

Dave Miller:  We do all of our work on a contingent fee basis which means it’s contingent on outcome so if the outcome is zero we get paid zero. Our standard fee is a one-third contingent fee which would come off of any settlement mediation or verdict, however the case resolved and there’s an award of money, our fee would come off of that. Like I said if there’s no recovery there’s no attorney’s fee and also there’s no cost that need to be repaid. We’ll front those costs as well.

Essentially that means that we don’t want the client to be in a position where they  can’t move forward with the case because they can’t pay for the filing fee, the service for a complaint, or having to pay a doctor for a specific report. That’s generally speaking the way it works. It’s always a free consultation so if someone if you’re thinking about calling us please do. It’s a free consultation. We’ll give you a straightforward analysis of what we think your case is about and what we might be able to do for you.

Cindy Speaker:  Excellent. Let’s switch gears again and let’s talk a little bit about tort reform and if tort reform exists in Pennsylvania. It’s a scary word. People don’t know what it means.

Dave Miller:   Yeah, and it’s a misnomer because it’s really not … It’s not really reform. It’s really restrictions. Tort reform gets tossed around. If anyone has been following the healthcare debate on the federal level it’s get thrown in there with a lot of other major considerations. There’s a lot debate as to whether or not it should be part of that. What tort reform basically means is a restriction on one’s ability to recover damages in the case. It could also mean maybe some pre-filing hurdles that need to be jumped over or some hoops that need to be jumped through to bring a case.

In Pennsylvania, we do have tort reform on the medical malpractice side. Medical malpractice it’s not just doctors. It’s also nursing homes. It’s nurses. It’s obviously hospitals. A lot of medical types of medical providers fall underneath what’s called the MCARE Act of 2002. What this did in Pennsylvania was first off the one benefit it created what’s called the MCARE fund and that replaced the catastrophic injury fund in Pennsylvania but what this law did is mandated primary insurance for medical providers so they have to have primary insurance of $500,000. Then the MCARE fund will step in for the next $500,000 of coverage.

The good news in Pennsylvania and I know a lot of practitioners in other states especially on nursing home cases where there’s no mandated liability insurance which comes with a shock to a lot of people. The good news in Pennsylvania is that at least you know that there will be coverage there if there is a potential claim.

Cindy Speaker: Let me understand that. You said that there is no mandated liability coverage or there wasn’t.

Dave Miller: In Pennsylvania there is. In other states, in many other states actually and I can only speak specifically to nursing homes there is no requirement for liability insurance which is … Given the nature of the transactions and the nature of what they’re responsible for I’m happy I live in Pennsylvania when I hear that. That’s not only just for me as an attorney it’s for my friends and my families that have loved ones in nursing homes. Because it’s an issue. I think it’s been coming to the forefront. If you have a claim you have to bring it, it’s nice to know there’s an insurance policy there and not have to go collect against a business for something that they may have done below the standard of care basically.

The other thing the MCARE Act did was require a certificate of merit. This is a requirement before filing a lawsuit that you have reviewed the file with a medical provider either a physician or a nurse depending on the nature of the claim. They have basically said there’s a reasonable probability that something wasn’t done right here and also that that created the harm that you’re talking about. It’s not a terribly huge hurdle to get over, but it’s still an expense. There’s no, at least I haven’t found there’s no one out there doing these reviews for free. The idea behind this is to create an expenditure, create a hurdle to just keep people from bringing claims.

I think if you’re an experienced attorney in this area it’s not that huge of a deal because you know at the end you’re going to need these experts anyway. For someone who doesn’t have an attorney, doesn’t know how to take step one and doesn’t want to have an attorney, maybe they just want to see if they can resolve the case informally, that’s a major hurdle. You’re talking about maybe a couple of thousand dollars out of pocket just to get a response and that may come back as no we think they did it right. Then you’re out $2,000.

Those claims don’t get pursued let’s put it that way. There’s a real benefit to it for what everybody wants to call as frivolous claims and certainly before if you look at the stats the Pennsylvania Supreme Court kept statistics on filings. The enactment of the MCARE Act and I have it right here it went from 2,733 on average between the years 2000 and 2002. Then in 2003 the year following the MCARE Act it went down to 1,712 claims filed. It certainly had the impact wanted in that regard.

Cindy Speaker:  How about that.

Dave Miller:  The question is how many legitimate claims were not brought because of this hurdle. That’s the untold story of things and we’ll really ever know. It’s a tough analysis. There’s a lot of influencers involved in these laws. You have the business side. You have the individual side. It’s a tough call. A lot states they make it a lot more difficult than Pennsylvania.

Cindy Speaker: We talked about … I’m not sure if this is what we covered, but we had another issue where we were talking about federal legislation that could impact claims in Pennsylvania is that a separate issue or is that related to this?

Dave Miller:  It’s related, but it is separate. One thing I didn’t mention about Pennsylvania tort reform is we do not have caps which is a maximum amount of recovery that you can be awarded in a medical malpractice case. Now we don’t have caps in any type of case, but right now there’s as part of the federal legislation going on with the American Healthcare Act, there’s sort of a companion act going forward which is a House Bill 1215 and that is a federal cap, a federal tort reform basically of capping noneconomic damages in any medical malpractice case to $250,000 regardless of the nature of claim and regardless of the lifetime impact on the individual.

Now the way the act is written is strange in that it applies to every state, but if a state already has caps in place they can maintain those caps even if they’re higher. If a state has a $750,000 cap, they can maintain that cap, but in Pennsylvania we don’t have a cap so we’re stuck at $250,000 with a federal law. That raises a lot of questions about … I can get deep into the Constitutional propriety of all of this with federalism shouldn’t it be the states decision whether or not to have such a cap. Don’t we trust our juries enough. The Seventh Amendment is the right to a jury trial in a civil case. That’s part of the Bill of Rights. Think about some of the other rights that go along with that and a lot of people wouldn’t give up their guns under the Second Amendment.

A lot of people won’t give up their freedom of speech under the First Amendment. Here’s a bill going forward to take our Seventh Amendment rights to have a jury decide these things and basically getting thrust upon the citizens of Pennsylvania where obviously we’ve decided we don’t want these caps. We want the jury to make the decision. If it goes through, that’s what we’re going to be living with. That’s the biggest threat right now if you want to call it that, from my perspective I think it is and I think anyone from a fairness perspective would agree with that. Things have been working the way they are with our Pennsylvania laws as established. With MCARE Act, I think it’s achieving the goals we want to see achieved. Even if you look at the jury verdict values, we don’t have these runaway jury verdicts that are scaring away doctors, but I don’t think it’s the federal government’s right to tell us how our juries should be making decisions and whether or not they can at all.

Cindy Speaker: I agree completely.

Dave Miller:  Especially when it’s a blanket law and it doesn’t look at that specific individual, fairness factor is just out the door at that point.

Cindy Speaker:   Dave I can’t help but wonder who would advocate for that type of law. I mean it just seems … I mean all I can think of is the insurance companies because who else would advocate for that.

Dave Miller: Yeah, you nailed it. I mean the insurance lobby is one of the most active and spending lobbies out there especially on the federal level and they’re pushing it forward and they’re just spinning it to make it sound like it’s a benefit to patients. They’re spinning it to make it preserving physicians and honestly everyone wants to have a doctor to go to. There’s a balance to everything.

When you couch it as a patient protection act and it’s really a complete elimination of patient protection, there’s plenty of studies that show that placing caps on jury verdicts and damage awards actually makes things worse. We’re trying to control making sure treatment is done the right way within the standard of care.

You know what a lot of people don’t understand that as well is that’s all we’re judging these cases against in this specific instance is their own standard of care. We’re not making things up. You ask an orthopedist across the board how do you perform this procedure? Well in that instance it wasn’t up to that standard, that’s the judgment right there. It’s nothing that nobody should know if they’re actually performing a surgery or doing any kind of medical procedure really. This debate can go on and on and it has for years and probably will continue to, but we’re hoping that on the federal level that bill stops in its tracks and the federal government will leave it up to the states to make these kinds of choices.

Cindy Speaker: Yeah, yeah. You know I think this begs a followup. I think we should do a followup show on the Seventh Amendment and the steps towards to erosion of the right to a jury trial. I think it’s a big topic and I’m hearing a lot about it these days. For today, our time is about up. Tell us how we can reach your firm, how we can reach your office if someone has questions.

Dave Miller: Well they can reach us on our website at www.oconnorlaw.com and by phone at 1-800-518-4529.

Cindy Speaker:  Excellent. Dave thanks so much for being with us today.

Dave Miller:   Thank you Cindy. I enjoyed it.

Cindy Speaker: To those of you that are watching, I see some of you watching live right now, I want to say if you have questions that you didn’t get answered today please feel free to put them in the comment area and we will respond. Have a great day everyone. Thanks for joining us.

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