Great questions! Some answers:

Back on Feb. 4, 2019, the North Carolina Department of Health and Human Services announced the selection of Prepaid Health Plans that will participate in Medicaid managed care when the program launches in November 2019. The Department awarded contracts to five entities:

• Statewide PHP contracts were awarded to the following entities which will offer Standard Plans in all regions in North Carolina:
  • AmeriHealth Caritas North Carolina, Inc.
  • Blue Cross and Blue Shield of North Carolina
  • UnitedHealthcare of North Carolina, Inc.
  • WellCare of North Carolina, Inc.
  • A regional PHP contract was awarded to Carolina Complete Health, a provider-led entity, which will offer plans in Regions 3 and 5.

Plaintiff lawyers who represent clients who are Medicaid recipients who have been in car wrecks need to track what these entities pay for medical treatment in order to account for the Medicaid lien and repay the government.

Before this privatization of Medicaid, all of the subrogation has been handled by a group called HMS. Now that the PHPs have come along, we have to request subrogation information from each PHP.

Here is a list of the subrogation contacts for the Medicaid PHPs.

PHP Medicaid Lien Contact Information

Carolina Complete Health

Rawlings Group
4 Eden Parkway
La Grange, KY 40031
Phone: 888-285-1276
Fax: MANUAL FILE COORDINATOR at 502-440-1100
Email: CenteneReferrals@rawlingscompany.com

WellCare

Rawlings Group
4 Eden Parkway
La Grange, KY 40031
Phone: 888-285-1276
Fax: MANUAL FILE COORDINATOR at 502-440-1100
Email: CenteneReferrals@rawlingscompany.com

Healthy Blue

 P.O. Box 659940
San Antonio, TX 78265-9939
Phone: 844-916-3651
Fax: 844-634-2520
Email: NCCompliance@healthybluenc.com

AmeriHealth

Attn: Subrogation Unit
200 Stevens Drive
Philadelphia, PA 19113
Phone:215-863-5837
Fax: 215-863-5221
Email: subrogation@amerihealthcaritas.com

United Healthcare

Optum Subrogation
11000 Optum Circle
Eden Prairie, MN 55344
Fax: 800-842-8810
Email: subrogationreferrals@optum.com

Trillium: www.trilliumnc.org 

Phone: 877-695-1296
Email: Trillium@gainwelltechnologies.com

_________

The subrogation providers above are subject to change, but this is the list as of 8/25/2022.

Chris Nichols
Nichols Law Firm
North Carolina and Raleigh Personal Injury Lawyer

So what does happen when someone gets hurt or killed by a drunk driver in North Carolina?

First, let me make this clear: Nichols Law Firm only represents people injured or killed by drunk drivers. We never defend drunk drivers. When I teach a class to lawyers who defend drunk drivers, I’m teaching them the best ways to help my injured clients, which sometimes can be mutually beneficial to their client.

When a North Carolina drunk driver wrecks your car and injures you or your loved ones, we all hope that they are arrested at the scene. The arresting officer will do field sobriety tests, and if the driver does poorly on the tests, there will be probable cause to request a breath test for blood alcohol concentration. The drunk driver can refuse that test but the arresting officer can force a blood draw to get the results. Any blood alcohol concentration over .08% will result in an arrest for driving while intoxicated. Some refer to that simply as DWI or DUI.

Is a personal injury claim against a drunk driver any different from a regular personal injury claim?

A personal injury case against a drunk driver is pretty similar to one against a non-drunk driver. An adjuster from the drunk driver’s insurance company will want to take a recorded statement from you over the phone. They may ask you about all the ways you think the driver was intoxicated. It’s really important to get that right and make sure that you tell them all the signs of intoxication you saw: glassy eyes, smell of alcohol, unsteady on feet, slurring words, and of course, any statements the other driver made about drinking.

So what are punitive damages in drunk driving cases?

In North Carolina, under General Statute Chapter 1D, Punitive Damages, anyone hurt or killed by a drunk driver, who proves the driver was drunk and driving negligently, may be entitled to receive punitive damages on top of the compensatory damages present in every injury case. Compensatory damages are things like medical bills, lost wages, pain and suffering, permanent scars, lost work, ambulance and doctor bills, and permanent disability. Punitives damages are damages on top of the compensatory damages and are meant solely to punish the drunk driver and deter other people from drunk driving.

§ 1D-1. Purpose of punitive damages.

Punitive damages may be awarded, in an appropriate case and subject to the provisions of this Chapter, to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. (1995, c. 514, s. 1.)

In general, punitive damages are limited to 3 times the amount of the compensatory damages, or $250,000, whichever is greater. But the Legislature made an exception to the cap on punitive damages in North Carolina: drunk drivers.

§ 1D-26. Driving while impaired; exemption from cap.

G.S. 1D-25(b) shall not apply to a claim for punitive damages for injury or harm arising from a defendant’s operation of a motor vehicle if the actions of the defendant in operating the motor vehicle would give rise to an offense of driving while impaired under G.S. 20-138.1, 20-138.2, or 20-138.5. (1995, c. 514, s. 1.)

Do I need a lawyer to represent me when I have been hit by a drunk driver?

If you or a loved one gets hit by a drunk driver in Raleigh, Durham, or Chapel Hill, it is a good idea to at least have a free consultation with a lawyer. There are many reasons for this. First, you may be required to come to court as a witness in the drunk driving prosecution. Or you may be called on to give a victim impact statement at the drunk driver’s sentencing hearing. While the local District Attorney offices do a great job with victims, they can’t “represent you” or give you legal advice. Having your own lawyer, right from the start, means that I can come to the criminal court trial with you and help you through out. It also means that I will monitor the criminal case, and make sure the drunk driver receives appropriate punishment.

How does my lawyer help when I’m called as a witness or victim of a drunk driver?

Along the same lines, the criminal defense attorney can sometimes coordinate with me, as your attorney, to be very helpful to the injured party by facilitating money settlements with the injured party as part of criminal restitution or civil settlement. Sometimes the drunk driver’s lawyer will also coordinate with me to make sure that the insurance company for the drunk driver is paying a fair amount of money, considering the compensatory and punitive damages.

What experience does Nichols Law Firm and Chris Nichols, Attorney have making claims against drunk drivers?

I’ve been practicing law for 25 years and my first few years I actually defended drunk drivers when I worked for a senior attorney. This gave me great practical insight into how the criminal prosecution works. As a civil lawyer, I also have to prove the defendant was intoxicated, and having worked on both sides of this, I have a lot of knowledge. At any given time, my office usually has 4 or 5 cases against drunk drivers. Because of this, we have developed systems to catch drunk drivers in any lies or exaggerations they make about their alcohol use and rehabilitation. It’s not unusual for a criminal defendant to testify they have “put down the bottle”, only to have our private investigator see them buy booze at the ABC store and drive away on a limited permit that does not allow for that. When we catch defendants in lies like this, the cases against them often settle for more money and faster. Rarely do we have to try one of the civil cases against drunk drivers.

If you or a loved one has been hurt or killed by a drunk driver, you can call me, Chris Nichols, directly, for a free consultation: 919.915.0212

Be safe out there!

Chris Nichols
Nichols Law Firm

In NC you have three years to settle or file a lawsuit for personal injury (but not death, that’s two years)

In North Carolina you have three years to either settle a personal injury case or file a lawsuit. I did not say “file a claim.” I did not say “talk with an insurance adjuster”. I did not say “be in the middle of negotiations.”

On the third anniversary of your car wreck, you either need to have a settlement worked out, in writing and agree upon by the insurance adjuster and you, or you need to file an actual lawsuit in a court of law in NC.

If you are still negotiating with that adjuster at midnight on the third anniversary of your car wreck, you can never get anything for your claim. The next minutes that adjuster will say “Sorry, your statute of limitations ran, you have no claim.” And so you ask, “Wouldn’t the insurance company tell me that my time is running out?” The answer is NO. In fact, I’ve seen situations where the insurance adjusters actively seek to delay the settlement.

The wrongful death statute in North Carolina has a two year statute of limitations

If the car wreck resulted in a death, or wrongful death in North Carolina, the time limit is TWO YEARS. Also, to sue for the wrongful death of a loved one, there must be an Estate set up in the name of the deceased and an Administrator or Executor must actually be the party that sues. Cases like that look like this:

The Estate of John Doe, Susan Doe, Administrator V. Big Truck Company, LLC 

Setting up an Estate takes time. And even though there may be one type of Estate set up, it might not be the right type to bring a wrongful death claim.

I think I get this statute stuff, do I have to have a lawyer?

Not every case needs a lawyer. Really, a lawyer just told you that. I talk to a lot of people on the phone, give them a few pointers and send them on their way. It’s sometimes a good idea to settle your own case when it is simple and small. But complicated cases probably need lawyers. So it’s always a good idea to call a lawyer like me, and ask.

But really, if you call me on the day that your statute of limitations is about to run out, there is a 95% chance that I will not be able to save you and your case. Lawyers can not send an email to the court to file a lawsuit. It sometimes takes days to draft the paperwork. We have to find the Defendant and make sure we can serve them with papers. We need to see police reports. This takes time.

In law we frequently abbreviate Statute of Limitation as SOL. And if you miss one, you are SOL on your SOL. 

When is the latest you should call a lawyer for a personal injury case?

I would say that the latest that I would get in touch would be six months before the statute runs out. Put another way, two and half years after the accident for personal injury and one and a half years for wrongful death. That gives the lawyer time to gather your medical records, talk to experts, file the lawsuit, and get it served on the defendant. You see, even though the insurance company pays the claim, the other driver is the one who gets named in the lawsuit. So it’s not as easy as my office sending a letter to State Farm. We actually have to send the Sheriff or a certified letter to someone so they can be “served.”

If you waited past two and half years, you should still call for advice. Just know that a lot of lawyers don’t like taking cases that close to the statute of limitations.

What about children or kids? How long do minors have to settle their personal injury claims or file a lawsuit?

In NC, a minor is anyone under age 18. Minor’s statute of limitations work differently than adults. A minor’s statute does not BEGIN to run until they are age 18. Then it runs the normal 3 years for personal injury. Crazy, right? So if you are in a car accident at age 2, you will have until your 21st birthday to settle the claim or file a lawsuit! This is also true for other injury claims, like sexual abuse.

But there is a catch…. (there is always a catch, right?). The catch is this: In North Carolina, the medical bills for an injured minor (anyone under age 18) “belong” to the mom, dad, or legal guardian of the minor. What does that mean? It means that because a minor can’t sign a contract, when a minor goes to the hospital or doctor and has a bill for services, that bill is actually the parent or guardian’s bill. Don’t pay it? The parent or guardian gets sued by the hospital, not the minor.

So what’s the catch? Well, the catch is this- in the example above where the two year old gets hurt in a car wreck, let’s assume the medical bills are $50,000. Three years from the date of the wreck, the parent/guardian’s statute of limitations to sue for those medical bills expires. So on 3 years +1 day, the minor can still sue for pain and suffering and other economic wages, but NOT for past medical expenses.

But, there is a catch to the catch! There is a way for the parents to assign the claim for medical bills to the minor child so that those medical bills become part of the claim for the minor that does not run out until age 21. This can be tricky and I recommend lawyer supervision to deal with this. The good news is that it can be done quickly, so if you are reading this on the 2 year 364th day of the anniversary of an injury to a minor, it might not be too late to fix that problem. Call me!

Heartbreaker

I spoke to someone today who told me that the adjuster was discussing her case with her one day before her three year statute of limitations. She even asked if that was going to be a problem and the adjuster said “you have an open file claim.” That made the person feel good, even though it was a meaningless phrase.

When she called the day after the 3 year anniversary of her accident, the adjuster said “sorry, you didn’t file a lawsuit in time, you have no claim.”

No, she can’t sue him for that. Adjusters work for the driver that hit you! Their job is to pay you the least amount of money possible. That’s what they get paid to do. Not all of them are this heartless, some would warn you to get a lawyer or file a law suit. A lot of them are very good people. But consumers don’t really have the information or ability to decide who is who.

I had to tell this fine person that she no longer had a claim. It was a heartbreaker.

So if you’ve been waiting, even if you are still being treated for injuries, please call me or another lawyer and just get some advice (free and over the phone) on your time limits and whether you even need a lawyer. I’ve been doing this (looks at watch) for 23 years now, so I’ve probably handled a case like yours before. Let’s talk.

Chris Nichols, Attorney
800-906-5984

If you settled a case (by minor settlement, signed release, or Industrial Commission approval) in which Medicaid claimed a lien, between October 1, 2017 and February 9, 2018, you have 30 days from February 9 to file a motion in Superior or District court to seek a reduction of the lien under NCGS 108A-57. 30 days runs on the weekend of March 10-11, so calendar that for Friday March 9, 2018(unless you want to play chicken with the weekend rule). Example: You settled a claim on October 15, 2017 that had a Medicaid lien that exceeded 1/3 of the settlement. You paid Medicaid 1/3 of their lien (or held the money) because there was no longer a statutory mechanism to reduce the lien. You now have until March 9, 2018 to file a motion to reduce Medicaid’s lien.

Let’s define “settled” since that is the event that triggers the 30 day time limit to file the motion. Medicaid defines “settled” as:

1. The date upon which all parties execute a full Release of Claims; or,
2. For a minor, the date upon which the settlement is approved in a minor settlement hearing; or,
3. For a case in litigation that is tried, the date upon which Judgment is entered, or,
4. For a Workers Compensation case, the date upon which the Clincher is approved.

In addition to cases “Settled” during the period of October 1, 2017 and February 9, 2018, if you had a claim that settled up to 29 days before October 1, 2017, you may still have time to file for the lien reduction. I can’t tell you if you get only the remaining time you had left as of October 1, 2017, or if you get until March 9, 2018. Play it safe and choose the shorter time and file. Example: You settled a claim on September 15, 2017. Your 30 day window to file a motion for reduction would have run on Sunday, October 15, 2017. But because federal law and state law changed on October 1, 2017, you could not file for a hearing. I think, in the most conservative view, you now have the remainder of the time you would have had after and including October 1. And that remaining time begins to run again starting February 9, 2018. October 1 to October 15 is 15 days. February 9, 2018 plus 15 days is Saturday, February 24, 2018. You would need to FILE the motion before February 24, 2018. Think of it as a statute of limitations which is stayed because a person goes into a coma and becomes incompetent, but then they regain consciousness 5 months later and the statute starts ticking again where it left off.

Below I set out the history on this and then pose some questions you might have. Pay attention to the part where we discuss what happens if you paid Medicaid from October 1, 2017 until February 9, 2018. You may have an obligation to ask for a refund.

How did this get so screwed up, and what’s Medicaid subrogation?

Up until 2006, the law was clear that NC Medicaid was entitled to 100% of their lien, not to exceed 1/3 of a settlement, prorated with medical providers who had valid liens.

In 2006, SCOTUS ruled in Arkansas v. Ahlborn that state medicaid subrogation statutes could not just set a percentage recovery of the settlement as the amount of subrogation and ingnore the relationship between the gross settlement, the client’s recovery and the amount claimed in the medicaid lien. Ahlborn said states had to allow for a hearing mechanism for courts to set the lien in light of the recovery amount and how much of the recovery was for medical treatment as a proportion to the whole recovery. Most states revised their Medicaid subrogation statues in 2006 and started to allow hearings to reduce Medicaid recovery. They called them “Ahlborn hearings.”

North Carolina did NOT follow Ahlborn. Much to everyone’s frustration.

Several lawyers in NC challenged Medicaid’s refusal to follow SCOTUS’ ruling in Ahlborn. All of the state actions challenging Medicaid’s refusal failed in our appellate courts.

Then in April of 2013 SCOTUS issued an opinion in Wos v. E.M.A., upholding a 4th Circuit opinion (coming from North Carolina), and declaring that the North Carolina medicaid lien statute was in violation of the court’s ruling Ahlborn. By July of 2013, NCAJ had negotiated changes to the Medicaid lien statute to bring it into compliance with Wos and Ahlborn and provide a statutory mechanism to request a lien reduction hearing. Those hearings need to be requested (i.e., filed with a court) within 30 days of the settlement (defined by the signing of a Release or a minor settlement or Industrial Commission approval). This is the statute that was passed: NCGS 108A-57

Finally, NC was compliant with Ahlborn and the few others states that ignored Ahlborn were changing too. Meanhwile, in December of 2013, Congress was battling with President Obama to pass the first budget in years. In October of that year, Congress allowed the government to shut down for 16 days until they passed a temporary continuing funding resolution. On December 26, 2013, Congress (to the surprise of many) passed the Bipartisan Budget Act of 2013. Not until after it was signed into law did anyone notice this section:

SEC. 202. STRENGTHENING MEDICAID THIRD-PARTY LIABILITY.

(b) RECOVERY OF MEDICAID EXPENDITURES FROM BENEFICIARY

LIABILITY SETTLEMENTS.— (1) STATE PLAN REQUIREMENTS.—Section 1902(a)(25) of the Social Security Act (42 U.S.C. 1396a(a)(25)) is amended— (A) in subparagraph (B), by striking ‘‘to the extent of such legal liability’’; and (B) in subparagraph (H), by striking ‘‘payment by any other party for such health care items or services’’ and inserting ‘‘any payments by such third party’’. (2) ASSIGNMENT OF RIGHTS OF PAYMENT.—Section 1912(a)(1)(A) of such Act (42 U.S.C. 1396k(a)(1)(A)) is amended by striking ‘‘payment for medical care from any third party’’ and inserting ‘‘any payment from a third party that has a legal liability to pay for care and services available under the plan’’.(3) LIENS.—Section 1917(a)(1)(A) of such Act (42 U.S.C. 1396p(a)(1)(A)) is amended to read as follows: ‘‘(A) pursuant to— ‘‘(i) the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or‘‘(ii) rights acquired by or assigned to the State in accordance with section 1902(a)(25)(H) or section 1912(a)(1)(A), or’’.EFFECTIVE DATE.—The amendments made by this section shall take effect on October 1, 2014.

The very small change to the subrogation language in federal law had the effect of rendering Ahlborn and Wos moot as both cases depended on the specific language which said “payment by any other party for such health care items or services” and “payment for medical care from any third party” as the basis for the court’s reasoning that Medicaid must, for lack of a better term, prorate settlement funds with the victim of negligence.

I called several members of Congress and found out that the provisions had been slipped in at the last minute and had been pushed by private third-party subrogation companies like Rawlings and HMS who are contractors for many state Medicaid offices. Because these private companies take a percentage of recoveries they recover for the statse, they did not want to have payments to Medicaid (and their profits) lowered in favor of injured victims.

The statute changes did not go into effect until October of 2014, and under pressure from consumer groups, advocates for the disabled, and AAJ, the effective date was pushed to October of 2016. Then as we got closer to October of 2016, it was pushed to October of 2017. Victims of negligence who faced massive injuries with small liability policies were receiving relief from unwieldy Medicaid liens. Injured Plaintiffs could then use those funds to pay for services that Medicaid would not cover for the disabled Plaintiffs. Additionally, Medicaid was still prorating their recovery with valid medical lien holders under NCGS 44-49.

Meanwhile, in 2017, with a new Congress and new President, the North Carolina legislature inserted a change to NCGS 108A-57 in the July 2017 Budget (Senate Bill 257). The changes included a complete re-write of NCGS 108A-57, which eliminated a lien reduction hearing, re-instituted the 1/3 cap on Medicaid recovery (the Plaintiff repaid Medicaid 100% of the lien up to 1/3 of the gross settlement) and the proration with unpaid medical providers with valid liens was eliminated.

This new law only went into effect IF the federal changes from 2013 went into effect on October 1, 2017. The prelude to the change in NC law was a classic “IF/THEN” proposition (highlight added):

NC Senate Bill 257

MEDICAID SUBROGATION RIGHTS CONFORMING CHANGES

SECTION 11H.23.If Section 202(b) of the Bipartisan Budget Act of 2013, P.L. 113-67, takes effect on October 1, 2017, as provided in Section 202(c) of that act, as amended by Section 211 of the Protecting Access to Medicare Act of 2014, P.L. 113-93, and Section 220 of the Medicare Access and CHIP Reauthorization Act of 2015, P.L. 114-10, then G.S. 108A-57 reads as rewritten:

Ҥ 108A-57. Subrogation rights; withholding of information a misdemeanor.

(a) As used in this section, the term “beneficiary” means (i) the beneficiary of….. (then went on to rewrite the subrogation statute)

Consumer lobbying groups were unable to persuade Congress and HHS to delay the implementation of the October 1, 2017 changes, and therefore NC law changed on October 1, 2017 pursuant to the “IF/THEN” portion of the statute.

Which brings us to February 9, 2017. As many of you will recall, after a brief shut down of the US government from midnight of February 8 to the early hours of February 9, Congress passed and the President signed H.R.1892 – Bipartisan Budget Act of 2018.

Thanks to consumer lobbying by AAJ and other disability advocacy groups, the new federal budget repealed the changes to Medicaid law in the 2013 budget as follows:

H.R.1892 – BIPARTISAN BUDGET ACT OF 2018

SEC. 53102. THIRD PARTY LIABILITY IN MEDICAID AND CHIP.

(b) Delay In Effective Date And Repeal Of Certain Bipartisan Budget Act Of 2013 Amendments.—

(1) REPEAL.—Effective as of September 30, 2017, subsection (b) of section 202 of the Bipartisan Budget Act of 2013 (Public Law 113–67; 127 Stat. 1177; 42 U.S.C. 1396a note) (including any amendments made by such subsection) is repealed and the provisions amended by such subsection shall be applied and administered as if such amendments had never been enacted.

(2) [Does not apply to subrogation]

(3) EFFECTIVE DATE; TREATMENT.—The repeal and amendment made by this subsection shall take effect as if enacted on September 30, 2017, and shall apply with respect to any open claims, including claims pending, generated, or filed, after such date. The amendments made by subsections (a) and (b) of section 202 of the Bipartisan Budget Act of 2013 (Public Law 113–67; 127 Stat. 1177; 42 U.S.C. 1396a note) that took effect on October 1, 2017, are null and void and section 1902(a)(25) of the Social Security Act (42 U.S.C. 1396a(a)(25)) shall be applied and administered as if such amendments had not taken effect on such date.

So where does this leave us?

Based upon the language of the Bipartisan Budget Act of 2018, the changes to the key language which vitiated Ahlborn and Wos in 2013 and went into effect on October 1, 2017, are now a nullity. According to the newest federal law, the changes in 2013 were never put into effect on October 1, 2017, because they were repealed on September 30, 2017.

And because Section 202(b) of the Bipartisan Budget Act of 2013, did not take effect on October 1, 2017, there is no change to NCGS 108A-57, the Medicaid subrogation statute.

Which means that 108A-57’s requirements to request a lien reduction hearing are still in effect. NCGS 108A-57requires:

(a2) A medical assistance beneficiary may dispute the presumptions established in subsection (a1) of this section by applying to the court in which the medical assistance beneficiary’s claim against the third party is pending, or if there is none, then to a court of competent jurisdiction, for a determination of the portion of the beneficiary’s gross recovery that represents compensation for the Medicaid claim. An application under this subsection shall be filed with the court and served on the Department pursuant to the Rules of Civil Procedure no later than 30 days after the date that the settlement agreement is executed by all parties and, if required, approved by the court, or in cases in which judgment has been entered, no later than 30 days after the date of entry of judgment. The court shall hold an evidentiary hearing no sooner than 30 days after the date the action was filed. All of the following shall apply to the court’s determination under this subsection:

So what is the deadline to file for 108A-57 hearings to reduce Medicaid’s lien for cases settled from October 1, 2017 to February 9, 2018?

The way the federal changes were implemented on February 9, 2018 leaves a vacuum from October 1, 2017 until February 9, 2018 for all settlements where Medicaid claimed a lien on settlement proceeds. Obviously, during that time period, a Plaintiff had no statutory mechanism to file for a Medicaid reduction hearing under NCGS 108A-57. So there can be no 30 day time limit to file during those months.

So what happens to Plaintiff cases that settled (by release, minor settlement of Industrial Commission Order) from October 1, 2017 until February 9, 2018?

The only logical conclusion is that the 30 day time limit to file a motion for Medicaid lien determination for cases settled from October 1, 2017 through February 9, 2018, begins on February 9, 2018 and runs 30 days until and including Friday March 9, 2018 (or Monday March 12, 2018 if you want to use the “weekend rule”, but why risk it?).

This means that if you settled a case during that time, you MUST file,”by applying to the court in which the medical assistance beneficiary’s claim against the third party is pending, or if there is none, then to a court of competent jurisdiction, for a determination of the portion of the beneficiary’s gross recovery that represents compensation for the Medicaid claim. An application under this subsection shall be filed with the court and served on the Department pursuant to the Rules of Civil Procedure no later than 30 days after the date that the settlement agreement is executed by all parties and, if required, approved by the court, or in cases in which judgment has been entered, no later than 30 days after the date of entry of judgment.”

Practically, this means you need to file a motion for determination if you have a case pending, and if you don’t, you will need to file a Complaint in the underlying action and include a motion to determine Medicaid’s lien. 

What if I had a case settle less than 30 days before October 1, 2017, but I didn’t get a motion filed before October 1, 2017?

I think that the most conservative approach would be that you get whatever time you had left in your 30 day time limit added on beginning February 9, 2018. So if 25 days had gone past from the settlement of your case in September of ’17 when October 1 happened, you would get 5 more days to file, beginning February 9, 2018 and ending February 13 (or maybe 14th depending on how you count it).

What if I paid Medicaid 100% or 1/3 of the settlement from October 1, 2017 through February 9, 2018?

If you paid Medicaid during the “vacuum time” of October 1, 2017 through February 9, 2018, I think you have a 30 day window to request a hearing to have the lien payment evaluated by a court. I would assume that if you convinced the Judge that your client did not need to pay the Medicaid lien 1005 of 1/3 of the settlement, that the Judge could order Medicaid to issue a refund for the overpayment. Also keep in mind that Medicaid now has to pro-rate with unpaid medical providers with valid liens.

What if I paid Medicaid 100% or 1/3 of the settlement from October 1, 2017 through February 9, 2018 and I’m ok with the amount BUT I wasn’t able to pay valid medical lien holders because Medicaid would no pro-rate under the revised statute in effect at that time?

This is a harder question. Before October 1, 2017, you could tell Medicaid you had valid lien holders, prove that with copies of the liens, and reduce Medicaid’s lien by the prorated amounts of the medical lien holders. You didn’t need a hearing to make Medicaid prorate. It was by operation of law in all scenarios where you pay subrogation:.

NCGS 108A-57

(a5) The medical assistance beneficiary or any attorney retained by the beneficiary shall, out of the proceeds obtained by or on behalf of the beneficiary by settlement with, judgment against, or otherwise from a third party by reason of injury or death, distribute to the Department the amount due pursuant to this section as follows:

(1) If, upon the expiration of the time for filing an application pursuant subsection (a2) of this section, no application has been filed, then the amount presumed pursuant to subsection (a1) of this section, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, shall be paid to the Department within 30 days of the beneficiary’s receipt of the proceeds, in the absence of an agreement pursuant to subsection (a3) of this section.

(2) If an application has been filed pursuant to subsection (a2) of this section and no agreement has been reached pursuant to subsection (a3) of this section, then the Department shall be paid as follows:

a. If the beneficiary rebuts the presumption arising under subsection (a1) of this section, then the amount determined by the court pursuant to subsection (a2) of this section, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, shall be paid to the Department within 30 days of the entry of the court’s order.

b. If the beneficiary fails to rebut the presumption arising under subsection (a1) of this section, then the amount presumed pursuant to subsection (a1) of this section, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, shall be paid to the Department within 30 days of the entry of the court’s order.

(3) If an agreement has been reached pursuant to subsection (a3) of this section, then the agreed amount, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, shall be paid to the Department within 30 days of the execution of the agreement by the medical assistance beneficiary and the Department.

I do not think the 30 day deadline to file a motion applies to this situation if you have already paid Medicaid.

I think you should only have to write a letter to HMS/Medicaid, show them what you paid, prove that there were valid liens when you overpaid Medicaid, and ask that Medicaid refund the portion of the proceeds which should have been paid to valid medical lien holders. I don’t know if Medicaid would want to make that check payable to your client (I’m guessing they will want to do that), or to the medical providers. Then it would be up to you to distribute the funds.

Practically, if you had the valid medical liens during this time, you need to notify your client of the changes in the law and that the client has the option of having you ask Medicaid to make a refund that will be paid toward their unpaid medical balances.

But wait, I paid Medicaid on some liens from October of 2017 until February of 2018. I don’t think those cases needed a lien reduction hearing. Do I HAVE to look back and see if any of those files had valid medical liens that should (had the law allowed at the time) have been prorated with Medicaid?

Do you HAVE to ask for a refund of the (now) overpayment to Medicaid when there were valid medical provider?  Probably so. 

Why? You have a legal duty pursuant to NCGS 44- 49 and 50, and now an ethical duty, pursuant to 2017 Formal Ethics Opinion 4, to honor valid medical provider liens, regardless of the client’s desires. When you combine your duty to pay a valid medical lien under NCGS 44-49 and 50 with the ethical duty imposed to honor valid legal liens, I think you have to go back and look at any Medicaid payments you made from October 1, 2017 until February 9, 2018.

In summary, this is all great news for Plaintiffs, but we have to watch the potential deadline issues!

Questions? Feel free to email at Chris@NicholsTrialLaw.com
Chris Nichols

My law school covered the event.

Chris Nichols
www.NicholsTrialLaw.com

The Governor signed the new bill incorporating the holding of Wos on July 18, 2013. The bill is effective immediately. You can view House Bill 982, in final mark-up version here: House Bill 982 

Here are the things we KEPT in the old § 108A-57. Subrogation rights; withholding of information a misdemeanor:

• Medicaid is still limited to a maximum of 100% of the lien OR One Third (1/3) of the gross settlement.
• Medicaid still prorates within their 1/3 with unpaid medical providers asserting liens.
• Payment by the lawyer of the 100% or 1/3 of the gross settlement is full and final payment of Medicaid’s lien (but medical lien holders paid pro-rata still get are owed their balances pursuant to NCGS 44-49 and 50. 

Here are the NEW provisions that reflect the Supreme Court’s determination that our previous Medicaid statute was in conflict with Federal law:

• Medicaid recipients can challenge the 1/3 or 100% lien by filing a Petition with a court of competant jurisdiction for “a determination of the portion of the beneficiary’s gross recovery that represents compensation for the Medicaid claim.”
• TIMING OF PETITION: Those petitions must be filed within 30 days of all parties signing a settlement agreement OR court approval of the settlement OR a judgment being issued.
• The Court will conduct an evidentiary hearing and may consider any factors it deems just and reasonable in determining the allocation of the settlement.
• The burden of proof is on the petitioner to prove by “clear and convincing evidence” that Medicaid is demanding too large a portion of the settlement.

One other excellent part of the new statute says Medicaid can compromise the liens at any time:

(a3) Notwithstanding the presumption arising pursuant to subsection (a1) of this section, the medical assistance beneficiary and the Department may reach an agreement on the portion of the recovery that represents compensation for the Medicaid claim. 

In the past, Medicaid took the position they could not negotiate their lien with recipients. This new portion allows for that negotiation to occur at any time, even before a petition is filed.

Chris Nichols
www.NicholsTrialLaw.com

You can download the pdf files and open them in Acrobat and then CTRL F search for the codes that show up on your conditional payment letters from Medicare. This will help you sort out medical visits that have been “coded” for payment for non-related medical procedures and visits.

This makes it easier to find and eliminate appointments for pre-existing conditions. You can also scan in a long conditional payment spread sheet, do a conversion to searchable text (OCR) and then use the search feature on that to find the billing codes.

Hope this is helpful to some of you.

Chris Nichols
www.NicholsTrialLaw.com

So how is this relevant to “tort reform” and the pending legislation called Senate Bill 33 in the North Carolina House? Well, this law, proposed by Rep. Johnathan Rhyne (R- Lincolnton), takes away an essential ingredient of Liberty of the people of North Carolina- The right to a jury trial.

Rep. Rhyne’s bill says that when a citizen is hurt or killed by a negligent emergency room physician, or nurse, or hospital worker, that injured person has no right to sue for negligence. Further, the bill says that when a citizen of North Carolina is injured or killed by a defective drug manufactured ANYWHERE in the world, that citizen can not sue the manufacturer if the drug has been “approved” by a state or federal agency. Taking away the “right to redress” or “the right to sue” is the same as depriving someone the right to a jury trial. If you can’t sue, you can’t get a jury. The doors to the court house are closed to these people.

The Halifax resolves speciically address the right to trial by jury. In the Resolves the authors talk about the King seizing “Ships belonging to America” which “are declared prizes of War” and that the colonies have been deprived the legal right to get these ships back or enter into a process of determining the legal rights to the ships: “And …the United Colonies and their sincere desire to be reconciled to the mother Country on Constitutional Principles, have procured no mitigation of the aforesaid Wrongs and usurpations and no hopes remain of obtaining redress by those Means alone which have been hitherto tried.”

Rep. Rhyne’s proposed legislation takes us back to the days of being subjugated to the King and the Crown. Of course, one might make the distinction that under Rhyne’s law, the State of North Carolina is not “profiting” from the people. That is true, but Rhyne’s law is even WORSE.

Under Rhyne’s proposals, the State of North Carolina not only denies “obtaining redress” but does so to the financial advantage of international drug companies and for-profit hospitals and corporate physician groups.

This law is a glaring example of “Big Government” taking fundamental liberties of THE PEOPLE and redistributing the spoils of war to anti-liberty, big monied cronies.

Thomas Jefferson, the author of the Declaration of Independence and the third President of the United States, said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Senate Bill 33 takes away the trial by jury of people injured by negligent doctors and also those hurt or killed by defective drug products. These people are completely deprived of their liberty to hold bad actors accountable for their wrongs.

Why is the NC GOP rolling back our rights to pre-independence days?

Why did certain colonists remain loyal to the King? Scholars say one unifying characteristics of Loyalists to the Crown during the Revolution was this: They had a long-standing sentimental attachment to Britain, often with business ties. Also known as MONEY. 

How much did Rep. Jonathan Rhyne take from Big PHARMA and Medical Lobbyists?

PLEASE: preserve your liberty and rights. Call Anyone on this list and tell them to vote NO to SB33: https://spreadsheets.google.com/ccc?key=0AlinyCcVT4eGdGZLZU95VTREcW12RXBoLXlKU2paSWc&hl=en#gid=0

The below is from: http://ncpedia.org/history/usrevolution/halifax-resolves

HALIFAX RESOLVES

Excerpted from “Historical Miscellanea: An Early History of North Carolina,” North Carolina Manual, 1991-1992, published biennially by the NC Department of the Secretary of State.

North Carolina, on April 12, 1776, authorized her delegates to the Continental Congress to vote for independence. This was the first official action by a colony calling for independence. The 83 delegates present in Halifax at the Fourth Provincial Congress unanimously adopted the Halifax Resolves, which read as follows:

The Select Committee taking into Consideration the usurpations and violences attempted and committed by the King and Parliament of Britain against America, and the further Measures to be taken for frustrating the same, and for the better defence of this province reported as follows, to wit,

It appears to your Committee that pursuant to the Plan concerted by the British Ministry for subjugating America, the King and Parliament of Great Britain have usurped a Power over the Persons and Properties of the People unlimited and uncontrouled and disregarding their humble Petitions for Peace, Liberty and safety, have made divers Legislative Acts, denouncing War Famine and every Species of Calamity daily employed in destroying the People and committing the most horrid devastations on the Country. That Governors in different Colonies have declared Protection to Slaves who should imbrue their Hands in the Blood of their Masters. That the Ships belonging to America are declared prizes of War and many of them have been violently seized and confiscated in consequence of which multitudes of the people have been destroyed or from easy Circumstances reduced to the most Lamentable distress.

And whereas the moderation hitherto manifested by the United Colonies and their sincere desire to be reconciled to the mother Country on Constitutional Principles, have procured no mitigation of the aforesaid Wrongs and usurpations and no hopes remain of obtaining redress by those Means alone which have been hitherto tried, Your Committee are of Opinion that the house should enter into the following Resolve, to wit

Resolved that the delegates for this Colony in the Continental Congress be impowered to concur with the other delegates of the other Colonies in declaring Independency, and forming foreign Alliances, resolving to this Colony the Sole, and Exclusive right of forming a Constitution and Laws for this Colony, and of appointing delegates from time to time (under the direction of a general Representation thereof to meet the delegates of the other Colonies for such purposes as shall be hereafter pointed out.

The Halifax Resolves were important not only because they were the first official action calling for independence, but also because they were not unilateral recommendations. They were instead recommendations directed to all the colonies and their delegates assembled at the Continental Congress in Philadelphia. Virginia followed with her own recommendations soon after the adoption of the Halifax Resolution, and eventually on July 4, the final draft of the Declaration of Independence was signed. William Hooper, Joseph Hewes, and John Penn were the delegates from North Carolina who signed the Declaration of Independence.

The legislators who have bought into the corporate lobbyist’s money agenda in Senate Bill 33 would gladly sacrifice the liberty of the citizens at the throne of the new “King”: international pharmaceutical corporations and insurance companies.

This BOLD parts are from the “core values” listed for the “Tea Party Patriots” and serve as an example of Tea Party values. http://www.teapartypatriots.org/mission.aspx

Core Values of the Tea Party

• Fiscal Responsibility
• Constitutionally Limited Government
• Free Markets

Fiscal Responsibility: Fiscal Responsibility by government honors and respects the freedom of the individual to spend the money that is the fruit of their own labor. A constitutionally limited government, designed to protect the blessings of liberty, must be fiscally responsible or it must subject its citizenry to high levels of taxation that unjustly restrict the liberty our Constitution was designed to protect. Such runaway deficit spending as we now see in Washington D.C. compels us to take action as the increasing national debt is a grave threat to our national sovereignty and the personal and economic liberty of future generations.

Why “tort reform” proposed by the NC legislature is contrary to these values:

Fiscal responsibility emanates from the individual and is embodied by the government which derives its existence from the will of the people. “Tort reform” in the form of arbitrary caps on damages and immunity from certain forms of negligence by certain “classes” of individual (for example, immunity for negligent emergency room doctors) shifts the natural consequences of actions from the wrong doer to the government. Individuals who do harm should be held personally responsible for the full extent of their harm and not shift financial responsibility to government entitlement programs.

“Tort reform” in the form of NC Senate Bill 33, simply redistributes the cost of individual harm from the wrong doer to the tax payer. More specifically, by providing immunity to certain types of negligent physicians, when those physicians cause great harm to individuals, the harmed individual will eventually take tax dollars in the form of entitlement programs such as medicare, social security disability, and medicaid. The harmed citizen will be a drain on our government and our taxes.

Fiscal responsibility demands that the individual causing harm rely on their own resources and insurance converge in a robust free market- not the government to use tax dollars to bail out the negligent.

“Tort reform” is not fiscally responsible.

Constitutionally Limited Government: We, the members of The Tea Party Patriots, are inspired by our founding documents and regard the Constitution of the United States to be the supreme law of the land. We believe that it is possible to know the original intent of the government our founders set forth, and stand in support of that intent. Like the founders, we support states’ rights for those powers not expressly stated in the Constitution. As the government is of the people, by the people and for the people, in all other matters we support the personal liberty of the individual, within the rule of law.

Why “tort reform” proposed by the NC legislature is contrary to these values:

There is no question that our founders believed in, and enshrined with the Constitution, the unalienable right to a jury trial for civil suits, which our Founding Fathers protected through the 7th Amendment to the Constitution after centuries of recognition in British law and Judeo-Christian writings.

Historically, the right to a trial by jury was the basis for “The Declaration of the Causes and Necessity of Taking Up Arms,” which was a document issued to explain why the colonists had initiated armed conflict against Great Britain, and was written by John Dickinson of Virginia based on a draft by Thomas Jefferson.

Dickinson wrote in the Declaration, “Parliament was influenced to adopt the pernicious project, and assuming a new power over them, have in the course of eleven years, given such decisive specimens of the spirit and consequences attending this power, as to leave no doubt concerning the effects of acquiescence under it. They have undertaken to give and grant our money without our consent, though we have ever exercised an exclusive right to dispose of our own property; statutes have been passed for extending the jurisdiction of courts of admiralty and vice-admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property…” — Declaration of the Causes and Necessity of Taking Up Arms, enacted July 6, 1775 by the Second Continental Congress

The “tort reform” proposed by the North Carolina legislature fundamentally deprives citizens of the right to a trial by jury in several ways. First, it grants blanket immunity from suit to certain classes of citizens, namely, emergency physicians and emergency room personnel, and corporate producers of pharmaceuticals (drugs). The proposals say, quite plainly, that a citizen injured or killed by any of these privileged groups can not sue and have a jury determine the fairness of their claim.

The Constitution clearly guarantees the right to a trial by jury to all citizens in the 7th Amendment.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

John Adams wrote:

As the Constitution requires that the popular branch of the legislature should have an absolute check, so as to put a peremptory negative upon every act of the government, it requires that the common people, should have as complete a control, as decisive a negative, in every judgment of a court of judicature.

He also wrote, “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”

Thomas Jefferson, the author of the Declaration of Independence and the third President of the United States, said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

James Madison, the author of the Constitution and the fourth President of the United States, said, “Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

“Tort reform” as proposed in SB33 and other bills curtails the natural right to trial by jury and should be opposed.

Free Markets: A free market is the economic consequence of personal liberty. The founders believed that personal and economic freedom were indivisible, as do we. Our current government’s interference distorts the free market and inhibits the pursuit of individual and economic liberty. Therefore, we support a return to the free market principles on which this nation was founded and oppose government intervention into the operations of private business.

Why “tort reform” proposed by the NC legislature is contrary to these values:

A free market economy rewards entrepreneurs for their actions that benefit society. The manufacturer who builds a superior product wins in the marketplace, and few would question that manufacturer’s right to reap the rewards of its own ingenuity. This is largely because the manufacturer has, in the effort to succeed, shouldered a risk of failure. It is the marketplace, comprised of ordinary people, rather than the government, which determines whether the manufacturer wins or loses.

If the efficient production of material wealth is all that concerns us, then the marketplace needs no other rewards or penalties. Most will agree, however, that manufacturers should be encouraged to create safe as well as efficient products, for the number of deaths and injuries annually caused by defective products is astronomical. According to the 2003 Annual Report of the U.S. Consumer Product Safety Commission, there were 4,509 deaths and 13,690,526 injuries associated with just 15 categories of consumer products during that one-year reporting period. Deaths and injuries caused annually by toxic pharmaceutical products also rival these numbers.

By making manufacturers liable to the people they have injured, the once-revered common law tort system creates an incentive for the manufacturer to build a safer product. Those who advocate more government might suggest that safety can best be engineered from above, by governmental regulation, but true advocates of a free market will agree that it is better to permit the manufacturer to determine how to make its own product safe for consumer use, rather than some government bureaucrat. In exchange for the right to determine the most efficient way to make its products safe, however, a manufacturer must be subject to suit for failure to perform this undertaking.

“Tort reform” as proposed by the NC legislature in SB33 relieves manufacturers of defective products and providers of negligent services from the natural free market consequences of their actions. This creates imbalance in the market and also encourages an increase in governmental regulations.

The free market demands that consumers have a right to recoup their losses through the fundamental right of trial by jury. This provides natural incentives for “good behavior” in the marketplace.

I believe that House Bill 542 may “look” good for business but have the unintended consequence of making North Carolina the WORST place for manufacturing in the entire United States. I’ve inserted a few comments below in [BOLD] brackets.

Rep. Stam, Rep. Weiss, and Rep. Murray:

I am a lawyer, like each of you, and I would like to call to your attention what I think is a major unintended consequence of HB 542. I called each of your offices today to discuss this issue.

HB 542 destroys the right of a NC manufacturer and their insurance company to subrogate on catastrophic losses caused by defective products.This hurts manufacturing, business, and insurance interests in North Carolina.

Please read the below example:

Products Liability Immunity Destroys Business and Insurance Subrogation: HB 542 gives immunity from suit to any company that produces a faulty product that has been “approved for sale” by any State of Federal regulatory agency. This bar would apply to insurance subrogation claims against the original tortfeasor and therefore bars insurance companies and the self-insured from recouping losses caused by faulty products.

EXAMPLE.Power Plant Explosion: A North Carolina power company buys a defective industrial boiler from a Chinese (or any) manufacturing company. This product is “approved” by several state and federal agencies as required by law.” [Does this sound like the Apex Chemical explosion?]

That boiler explodes and spreads toxic ash over a 3 mile radius. The environment is polluted, people are made sick, and the business site is shut down. The NC business itself suffers a $300 Million dollar business and property damage loss and is sued by the State and citizens for the toxic ash injuries. The insurer for the power company (or self-insured company itself) must pay for the business loss, claims of injuries and property loss, but would be prohibited by HB542 from seeking a recovery from the negligent Chinese manufacturer. The State of North Carolina would be prohibited from seeking compensation for the loss to the environment and the toxic clean up costs. This will increase the cost of insurance for business and the State and possibly force insurers to stop insuring for loss from product defect.

HB542 uses the following definitions: [See page 8 of HB542] ” (1) “Claimant” means a person or other entity asserting a claim”

“Product liability action” includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any product.” (Emphasis added)

“No manufacturer or sellershall be held liable in any product liability action if any one of the following apply:”

Under this very simple language above, businesses that suffer catastrophic losses due to product defects will NOT be able to recoup those loses.

Moreover, what will be the effect on Business Insurance Policies? A standard loss policy would have language like the following:

“If we pay a claim under your policy, we will take over your right to recover that amount from any other person or organization. You agree to cooperate with us and not do anything that will interfere with our chances of recovery”.

Insurers would be subrogated to the right of the North Carolina company. Because subrogation is “the substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities,” the North Carolina Company would have no right to recover under HB542 and thus the insurance company would be subrogated to nothing.

North Carolina will be the ONLY state in the nation with such a law.

This raises many difficult questions:

1. Will insurance companies issue large commercial policies to North Carolina manufacturers know there will be no right to subrogate in failed products cases? Can businesses operate without this insurance?
2. Will North Carolina manufacturers receive insurance rate increases due to the higher cost risk for North Carolina claims?
3. Will manufacturers avoid locating in North Carolina because they will not be protected from defective products they purchase for their business?
4. Will insurance products for consumers be impacted by the lack of subrogation for faulty manufacturing? Will home owner insurance rates increase due to the number of fires caused by defective products where there will be no subrogatable interest for the insurance company?
5. Why would a manufacturer choose North Carolina over 49 other states knowing that it had no protections from faulty products within its own facility?

I ask that you stop HB542 before it further erodes North Carolina’s business economy.

Chris Nichols

________________________________

(update) 

A non-hypotehtical Example of Products Liability Subrogation In Insurance

Here is an excellent example of how subrogation works in the context of product liability claims. This is a blog post from Cozen O’Conner, a national law firm that helps insurance companies recover funds from manufacturers of defective produts when those products cause damage which is insured. Here is a link to their full blog post. Lasko Recalls 4.8 Million Box Fans

The case involved a massive barn fire at a breeding farm in Hondo, New Mexico. Six world class race horse breeding stallions were killed in the fire and the barn itself was totaled. Cozen O’Connor represented over sixty sophisticated horsemen clients who had ownership interests in the stallions, and their insurers. The insurers for the horses and the barn went to great lengths to preserve the fire scene, and as a direct result of their diligence the experts were able to examine each electrical device in the barn and identify the fatal flaw in the Lasko fan motor.

On March 24th (long after the fire) the Consumer Product Safety Commission announced a voluntary recall of 4.8 million Lasko box fans. The recall notice reports “an electrical failure in the fan’s motor poses a fire hazard to consumers.” The CPSC cites a “barn fire resulting in extensive property damage” as a basis for the recall.

If this fire had occurred in North Carolina under House Bill 542, the lawyers at Cozen O’Conner would have been barred from seeking recovery from Lasko. The insurer would have paid out millions and not been reimbursed by the negligent manufacturer of the fan. And who would absorb the cost of the unreimbursed expenses? Anyone who buys insurance.

_______________________________________

Hopefully this will make a difference. This bill is not just about people injured by defective products, but also business.

This is an actual photo of the Apex, NC plant explosion at a chemical storage facility.

Some suggestions:

The House Select Committee on Tort Reform will be considering amendments to HB 542 at their next meeting on Thursday, April 7, 2011 at 11:00 AM. As of right now, there will be no more public input. Those opposing this bill were allowed 8 minutes to speak on the amnesty provision.

If your Representative is a member of the Select Committee on Tort Reform, now is the time to contact them and express your opposition for HB 542. The action you take today will have a great impact on the final outcome of this legislation. If you don’t want NC to be the most dangerous state in the nation, call now.

Here is the language from the proposed law:

In any medical malpractice action arising out of the furnishing or the failure to furnish services pursuant to obligations imposed by 42 U.S.C. § 1395dd for an emergency medical condition as defined in 42 U.S.C. § 1395dd(e)(1), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the health care provider’s deviation from the standard of care required under subsection (a) of this section constituted gross negligence, wanton conduct, or intentional wrongdoing. Nothing in this subsection shall be construed to change, alter, override, or otherwise affect the provisions of G.S. 90-21.14, 90-21.15, 90-21.16, or 20-166.”

42 U.S.C. § 1395dd is EMTALA , the Emergency Medical Treatment and Active Labor Act, and it says:

(b) Necessary stabilizing treatment for emergency medical conditions and labor (1) In general

If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—

(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or

(B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section.

(e) Definitions

In this section:

(1) The term “emergency medical condition” means—

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

Legal Slight of Hand

It certainly looks like the lobbyists for the medical community knew exactly what they were doing when they crafted this portion of the proposed law. The EMTALA definition is a little bit “loosey goosey” (mostly because it was intended as a way to be broad and make sure hospitals did not “dump” people who were uninsured in the middle of giving birth).

Because of this broad definition of emergency, and because our statute integrates that definition, most people undergoing any serious treatment in a hospital: delivering a baby, having a heart attack, bleeding profusely, etc, will be defined by EMTALA as being “in an Emergency” and thus, ANYONE treating them will have IMMUNITY.

I think the legal inquiry will be:

“When the alleged negligence took place, could the patient have been transferred to another facility pursuant to EMTALA?”

If yes—> no immunity
If no —-> Emergency under EMTALA = Immunity

Do you want just about every Obstetrician to have immunity if they make an error?

Also, because this “definitional slight of hand” is not as obvious as saying “doctors delivering babies have immunity” will the Medical Malpractice Insurance Companies use this “gray area” to say “Well, the Legislature didn’t give you outright immunity, so we can’t lower the insurance rates of OBGYNs because we don’t actually know if the immunity applies. We’d have to look at it on a case by case basis.”?

Bingo! The doctors will raise an “EMTALA Immunity Defense” in EVERY case, creating a cottage industry for Insurance Defense Lawyers to bill hundreds of thousands of dollars, the Medical Malpractice Carriers will continue to charge too much money to the Doctors while enjoying the “Immunity Defense” that will probably kill most claims, and the babies who are born maimed or injured or die- well, they will have no right to a jury trial.

Please contact a member of the Committee and voice your opinion on HB 542. Say no to IMMUNITY!

NC House Select Commitee on Tort Reform Contact Information

UPDATE: 4:24 pm March 30, 2011: The Bill has finally been filed, all of 18 hours before it is to be debated. House Bill 542

Here is the relevant language:

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or
2. The product was in compliance with a statute of this State or the United States, …where the stature or agency action is relevant to the event or risk allegedly causing harm….

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think: bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a “short” list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is “vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service.” Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

US Consumer Product Safety Commission (USCPSC) Regulated Products

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist’s paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children’s Products (see “Toys/Children’s Products”)

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children’s Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children’s, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children’s Products- All

Toys/Children’s Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children’s Products- balls, small

Toys/Children’s Products- caps & toy guns producing, impulse-type sound

Toys/Children’s Products- choking incidents

Toys/Children’s Products- clacker balls

Toys/Children’s Products- electrically-operated toys and children’s article

Toys/Children’s Products- games, self-pressurized -hollow plastic toys games

Toys/Children’s Products- marbles

Toys/Children’s Products- mineral oil

Toys/Children’s Products- painted with lead or containing lead

Toys/Children’s Products- pacifiers

Toys/Children’s Products -rattles

Toys/Children’s Products -sharp edges

Toys/Children’s Products -sharp points

Toys/Children’s Products -small parts

Toys/Children’s Products -model rockets

Toys/Children’s Products -model rockets, propellant

Toys/Children’s Products -train smoke

Toys/Children’s Products -use and abuse tests

Toys/Children’s Products -tubes, collapsible metal (labeling)

Toys/Children’s Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

Federal Drug Administration (FDA) PRODUCTS

Food safety

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

United States Department of Agriculture (USDA) Regulated Products

Meat

Poultry

Egg products

National Highway Traffic Safety Administration (NHTSA) Regulated Products

Vehicle safety

Vehicle recalls

Child safety seats

Airbags

Safe auto parts

Tire safety

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts
__________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this. The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval. Other states have had lesser versions of this bill but none had given complete immunity. This is an interesting history of “FDA defense” bills: http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan’s “FDA Law”, the State of Michigan lost $82 MIllion dollars in “refunds” from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state. Michigan passed the law and Merck left anyhow. also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.

Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs.Michigan can’t recover those damages from Merck because of the “FDA defense.” If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag. The Michigan Court of Appeals affirmed this “defense” on March 11, 2011.

These questions need to be asked:

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB?

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this “law” get to North Carolina? It got here from ALEC, the “American Legislative Exchange Counsel” a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC? If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other “mega corporations”.

WHAT CAN I DO?? IF YOU DON’T THINK THIS IS A GOOD IDEA FOR NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform. Or here: http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter. Or give them a call. They meet tomorrow (Thursday, March 31) at 11 am. Act now, before it is too late.

Chris Nichols

As these things go, we lawyers know that the best way to get to the bottom of things is to “follow the money” and that’s what this post is all about.

And of course, what I’m talking about is the very recent creation of a “grass roots” effort to change the the laws of medical malpractice in North Carolina. That “grass roots” organization stealthily sprung to life on March 10, 2011, as a non-profit organization called “North Carolinians for Affordable Health Care, Inc.”

What follows is the story of the “birth of an astro-turf” organization. And if you are not familiar with that term, let me give you my definition. We’ve all heard of “grass roots” organizations, right? They start out with regular people who have a concern about something. Those people organize and get the word out and suddenly they create a movement which gains momentum. And when that movement gets big enough, these regular people get a “voice” on the public stage with the politicians and large corporations that can simply “buy” access to government with lobbyists. Well, “astro-turf” is the opposite of that. An “astro-turf” organization is something created by a corporation or a lobbyist to appear to be “of the people” when it is, in fact, just a shill by “the man”- some corporate interest that wants to pose as “the people.”

As you read this rather lengthy post, you’ll get to see how a small group of politically connected lawyers created an “astro-turf” organization to persuade politicians and the public to take away the rights or regular people to bring a claim against an insurance company and hospital when that hospital makes a mistake that injures, maims, or kills someone they love.

3/10/2011 Articles of incorporation for North Carolinians for Affordable Health Care (NCFAHC) is filed.

It is, of course, a Section 501(c)(4) Corporation.

The name and address of the incorporator is R. Donavon Munford, Jr.,

P. O. Box 2611, Raleigh, NC 27602-2611.

Reference: NC Secretary of State Filings

North Carolinians for Affordable Health Care is incorporated by a Republican former member of the NC General Assembly who is a partner in the Smith Anderson Law Firm

R. Donovan “Don” Munford was a Republican member of the North Carolina General Assembly representing the state’s thirty-fourth House district, including constituents in Wake County from 2002. Munford is a lawyer and accountant from Raleigh, North Carolina.

Munford ran for re-election to the North Carolina House of Representatives in the 2004 General Assembly election. He defeated J.H. Ross in the Republican primary, but lost to Democrat Grier Martin in the November 2004 general election.

 He is a partner at Smith Anderson, the largest law firm in the Raleigh area. He practices in the areas of corporate and business law, estate planning and asset protection planning. Munford is also a licensed Certified Public Accountant. (Reference: Munford Wikipedia Entry)

Smith Anderson Law Firm is a leading Medical Malpractice Insurance Defense law firm and also a government lobbying law firm.

Smith Anderson Law Firm registered the website for NCFAHC.

Reference: WhoIS Registration link

Smith Anderson Law Firm has a longstanding relationship with the North Carolina Medical Society and lobbies for them before the General Assembly.

The North Carolina Medical Society is lobbying for immunity from negligence for Emergency Rooms in NC.

3/16/2011 NCFAHC releases a commercial falsely alleging that North Carolina is experiencing “frivolous lawsuits” which increase taxes and insurance costs.

Follow the Money

Are “North Carolinians” demanding immunity for negligent Emergency Rooms and physicians, or is a small group of lawyers, lobbyists, and physicians looking to walk away from their responsibility to the injured, maimed, and killed?

Can anyone explain how making Emergency Rooms immune from claims or lawsuits for “negligence” furthers the Medical Society’s stated purpose to”raise the standards for their profession” and “protect the quality of patient care?”

North Carolina Senate Bill 33 (SB33) does exactly the opposite. SB 33 changes the rules for any medical person in the Emergency Room and eliminates responsibility for “negligence”. This does not “raise the standard” for the profession, but in fact drastically lowers the standard. 

So how does this “protect the quality of patient care?” Well, what happens when you say “you can no longer be held financially accountable for the consequences of sloppy work, negligent work, or breaking and ignoring the established rules in all other Emergency Rooms in the state of North Carolina?”

Does taking accountability away from Doctors, Nurses and Hospitals somehow make people more responsible? Or does it make them act “less responsible?”

How about this? What would happen if we eliminated all speed limits in North Carolina, and just told people not to drive “grossly fast”? Would our roads be safer, or less safe?

Bottom line, the NC Medical Society, through their lawyers and lobbyists are “posing” as you, the people, in an effort to take away your right to hold a small group of bad doctors accountable.

And of course, where do the ACTUAL people stand on this issue?

Please write your elected House member a note and tell them to oppose this Bill.

Here is how to look them up: Who Represents Me?

(Scroll down to the bottom and look up by your Zip code)

This proposed Senate Bill S33 is a laundry list of of ways to limit the rights of normal citizens in NC. While physicians may THINK this proposed Bill will help them, in reality, the bill is a giant GIFT to the insurance industry because it simply reduces the amounts of money insurance companies might have to pay in legitimate claims. Or put another way, it limits the recovery of individuals whom a jury have determined are truly injured by medical negligence.

Here is a quick rundown on the Bill and my comments on the reality of the provisions.

EMERGENCY MEDICAL CARE- If your emergency room doctor commits negligence, you can’t sue them. You can only sue if they are GROSSLY negligent, like, if they were drunk. So, when the ER doc gives your spouse an injection of penicillin, even though her medical chart says she is severely allergic to it, and she dies- too bad. Gross negligence is a very high standard in North Carolina.

BIFURCATION OF TRIALS ON ISSUES OF LIABILITY AND DAMAGES in any case over $75,000.

This means that in any case with a value of over $75,000 (which is almost every medical malpractice case out there) you essentially have two trials. The first part is on the question of negligence. Did the doctor make a mistake. The second part is on the damages. Sounds tempting and simple but the real reason behind this is two fold. First, it makes trials longer and more costly for the injured party. Many witnesses who could testify once, now have to testify twice. Experts are very expensive, sometimes $5,000 per day. Insurance Companies have nearly unlimited resources to bring in experts. Injured people do not. Second, by keeping out the damages, the jury does not have any idea how badly the mistake has affected the injured person. This “depersonalizes” the case which is an advantage to the Defendant.

LIMITING THE AMOUNT OF NONECONOMIC DAMAGES THAT MAY BE AWARDED ($250,000 cap on damages) As used in this section, ‘noneconomic damages’ means damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, physical impairment, disfigurement, and any other nonpecuniary, compensatory damage. So if your child is burned on 90% of their body in a negligent surgical fire, they get about $3,000 a year for life. And of course, this cap on damages ONLY affects people who have a legitimate case, i.e., some one whom a jury has just determined is injured as a result of negligence. This cap also disproportionately effects retired people who do not have future lost earnings. And of course, this means insurance companies can get off cheap, even if a jury thinks a higher amount is warranted.

BY AUTHORIZING THE PERIODIC PAYMENT OF FUTURE ECONOMIC DAMAGES IN LIEU OF A LUMP-SUM PAYMENT. Basically, this is in there because if the person who is awarded damages by a jury dies later, their family will not inherit the money. It will go back to the insurance company.

MODIFYING APPEAL BONDS IN MEDICAL MALPRACTICE ACTIONS. This just makes it cheaper for insurance companies to appeal when they lose.

If approved, this act becomes effective October 1, 2011. (Better go to the doctor now.)

When “tort reform” was being debated on the Federal level, I produced a mock “Do It Yourself Tort Reform Release” which tried to demonstrate the reality of what the law makers were proposing. It got picked up by some national press and “went viral,” in as much as something about the law goes viral.

So, if you just can’t wait for Medical Malpractice “tort reform”, just download this handy form, sign it, and take it to your next doctor’s appointment.

At any rate, the 3 minute video below came through my email from a friend and I dared to click on it. It’s a little cheesy, potentially apocryphal, and it ends with an advertisement for what may even be a pseudo-religious employee training service. And yet, I’m reposting it even though it violates many of my cardinal rules for reposting. So why? Why would I re-post this?

First if all, even trial hardened lawyers need to be a little mushy from time to time, right? 

But more importantly, I think this video reminds us about how to effectively try a case and prepare witnesses. In the story, Johnny the Bagger manges to break through the mundane world of grocery shopping by connecting with his customers on an emotional level with a simple but genuine gesture.

How does this apply to jury trials? First off, most jurors come into the courtroom with a deep set of unrealistic expectations about trials and often a mindset that is “anti-plaintiff.” After decades of insurance company propaganda, Jurors often start out by thinking they can not trust the plaintiff or their lawyer because they “want something.” The Plaintiff’s lawyer has a monumental task of overcoming these perceptions while also juggling a long “to do” list of minimum evidence requirements.

In the pressure of trial, making sure we cross off our “to do” list, we often forget that we MUST connect on some visceral level with our jurors. Our clients can not simply clinically spout off a list of symptoms and economic losses. It is our job to find a subject that breaks through the perceptions and connects the jurors and the plaintiff on an emotional level.

I find that when I prep even the most stoic witness, there is usually one subject or another that can get them emotionally stirred up. I wish I could say it was always the same subject, but it never seems to be. Often it is how the Plaintiff perceives the emotional impact of the injury on the family. But that “a-ha” testimony never seems to come in the abstract. It only comes in story telling. It happens when I say, “Look, I hear you when you say this injury has impacted your family, but tell me one story, give me one example of how you figured that out.”

Once I hear that story, the story that makes my client get misty eyed, I never ask about it again, until trial. I don’t tell my client I am going to ask about it. I want my client to be raw for a moment, I want them to be emotional, I even want them to be (emotionally) messy and uncomfortable.

I want them to be real.

The video I watched this morning reminded me that being real is so important in what we do. How do you “stay real”? When do you let your guard down? As lawyers, we have so many roles to fulfill in trial that it is very easy to become mechanistic. What gets you out of that non-emotional role and shows the jury that this is not just another case for you, but a real person with real injuries?

If you can’t answer the question easily, watch this video, see if it makes you feel something, and then take a moment to figure out how you can translate that feeling.

Chris Nichols
www.NicholsTrialLaw.com

The main insurer for physicians, NC Medical Mutual, has just announced that they MADE so much money last year, they are issuing a refund to doctors. And guess what? This is NOT a result of tort reform. We have had no major laws pass in our state which resulted in “savings.”

In fact, based upon actuarial studies, the reality appears to be that when lobbyists for the insurance companies were screaming for tort reform, what they were doing behind the scenes was RAISING premiums for physicains to create what I would call a “manufactured problem.” The doctors’ own insurance company was gouging them, and then asking them to donate money to “tort reform” causes, which of course, are insurance company lobby groups.

Looks like the physicians have finally reigned in their own insurance company by realizing that the “crisis”, if there is one, is mostly in the minds (and wallets) of the insurance industry.

from the News and Observer

N.C. insurer to pay dividend

Medical Mutual will also pay off debt as drop in malpractice suits boosts profit

David Ranii, Staff Writer

The state’s largest medical malpractice insurer says that fewer lawsuits filed against doctors will allow it to pay its policyholders a $3 million dividend — its first dividend ever.

Raleigh-based Medical Mutual Insurance Co. of North Carolina said it posted a 7.4 percent increase in profit last year as the number of lawsuits filed against its policyholders fell to 298 last year. That’s down from 326 in 2006.

In addition to paying the first dividend since the company was founded in 1975, Medical Mutual also plans to erase its $10 million in debt this year. And, over the next four years, it plans to refund $12 million in capital supplied by its policyholders in 2003 as part of a plan to shore up the company’s finances and stabilize its premium rates.

In recent years the N.C. Academy of Trial Lawyers, whose members include the personal-injury attorneys who sue doctors for malpractice, has bashed Medical Mutual for charging rates that the lawyers’ group labeled excessive.

Medical Mutual’s CEO Dale Jenkins said the dividend and capital refund to shareholders demonstrates “we are a very good steward of the resources the [doctors] have provided to us. We recognize every day that it is their money.”

Medical Mutual hasn’t sought a rate increase from state regulators since 2005. The latest positive financial results will allow the insurer to hold rates steady again this year.

Medical Mutual’s dividend will be in the form of a credit that physicians receive when they renew their policies, said Jenkins. The average credit will be about 5 percent of the annual premium for most of the 6,300 North Carolina physicians who are policyholders. Medical Mutual is a mutual insurance company that is owned by its policyholders.

“We’re always glad to see a company … able to give money back to its shareholders,” said N.C. Insurance Department spokeswoman Chrissy Pearson.

Jenkins said the number of medical malpractice lawsuits has fallen nationwide. In addition, Medical Mutual has taken steps aimed at limiting lawsuits. The company has established stringent underwriting guidelines in order to avoid insuring doctors it considers high-risk, Jenkins said. “We do not take all comers,” he said.

The company also sends out teams of nurses to assess doctors’ practices and recommend ways to minimize risks, he said.

Profit last year totaled $26.1 million, up from $24.3 million in 2006, Medical Mutual reported. Assets increased by $44.9 million, to $416.2 million.

_______________________________________

Chris Nichols
www.NicholsTrialLaw.com

Contrubutory Negligence is an issue that people don’t know or care about, until they face the problem themselves. Basically, in NC, even if you are hurt by someone else’s negligence, if the other person can prove you are just a little bit to blame for your injury, you are barred from any recovery. That’s right. Someone else is 99.9% to blame, and you are barred from recovery.

Columnist Scott Sexton has written a series of excellent articles on the subject and really puts a human face on this convoluted and political issue. I highly recommend reading these articles.

I’ll also add this to the mix. One of the problems with contributory negligence is that it is so often a bar to people seeking legal representation. Lawyers who represent injured people know that they could spend years working on case and lose everything at trial simply because a jury felt the Plaintiff may have played some very small part in causing the accident.

Here are some the the previous articles by Sexton:

Contibutory Negligence: it’s “an insurance company’s dream “

“Never mind that Joshua was 7 years old and was within 3 feet of the curb, or that Logan was drunk and driving on the wrong side of the road. “By way of affirmative defense, Defendant Logan pleads the contributory negligence of the decedent Plaintiff Joshua Franklin Palomares-Beckles,” wrote Rodney Guthrie, Logan’s attorney. If a jury in North Carolina decides that you are even a tiny bit at fault in this sort of case, you are entitled to nothing under state law, under a concept called contributory negligence. “In general, I’d say contributory negligence is an insurance company’s dream,” said Walter Holton Jr., the attorney who filed the lawsuit on behalf of Beckles-Palomares. “

Wreck victim faces being victimized by outdated law

“After an automobile accident in New Hanover County involving his daughter, Ashley, a student at the University of North Carolina at Wilmington, Norris has become something of an expert on a legal concept known as “contributory negligence,” an outdated and completely unfair area of insurance law used only here and in three other states. That leaves option C. “Our insurance company is also using the contributory-negligence law claim that Ashley is limited in what we can recover,” Norris said.

‘There is no lobby for the little people’ in this state

“Just four states – North Carolina, Virginia, Alabama and Maryland – still hang on to the concept of contributory negligence, a relic from English Common Law. “

Don’t believe hype that law would increase insurance rates

By Scott Sexton

JOURNAL COLUMNIST

Scott Sexton
Email
Bio

On its face, insurance law – specifically a legal concept called “contributory negligence” – is something that only a serious policy nerd could love.

That is, unless (or until) you or someone you know gets hosed by that law. Then it’s not so boring.

Contributory negligence works like this: If you’re in an accident and deemed to be just 1 percent at fault, you’re not legally entitled to one red cent to cover your damages from the idiot (or his or her insurance company) who was 99 percent to blame.

Three recent columns explored some of the more outrageous abuses of this law. Possibly the worst was the insurance-company attorney who argued that a 27-year-old man killed by a hit-and-run driver in October 2003 while changing a flat tire in Orange County was partly responsible for his own death.

It’s a shameless, outdated blame-the-victim strategy. It also seems like an easy law to change.

Yet objections remain. The state, for example, could switch to a “comparative-negligence” system. If you’re 90 percent at fault, you (or your insurance company) pay 90 percent of the damages.

“Comparative negligence is a nightmare to apply. Few people agree on the percent fault they are assessed, it increases lawsuits, is a cash cow for lawyers, and raises everyone’s insurance rates,” wrote one reader who works in the insurance industry. “If you haven’t noticed, N.C. enjoys some of the lowest auto-insurance rates in the country.”

Good point. And it’s one worth exploring.

Low-rate state

North Carolina does indeed enjoy consumer-friendly auto-insurance rates – the sixth lowest in the country, according to the N.C. Department of Insurance.

That’s not, however, because of any sense of fair play by insurance companies nor because contributory negligence keeps costs down.

The credit goes to a man who next to nobody has heard of, state Insurance Commissioner Jim Long. He is basically the final word on insurance rates in North Carolina.

Every Feb. 1, the N.C. Rate Bureau – an umbrella organization representing insurance companies – files a rate request. The bureau then makes a rate recommendation. Actuaries and attorneys with the Department of Insurance negotiate any changes with the rate bureau. If there’s no agreement, then Long decides.

“It’s a pretty long and pretty dull process unless you are an actuary,” said Chrissy Pearson, a spokeswoman for the Department of Insurance.

Given that background, I figured that Long’s thoughts on the merits of contributory negligence versus comparative merits would be worth hearing.

You can read the rest of the article by going to the Winston-Salem Journal.

-Chris Nichols
www.NicholsTrialLaw.com

So, if you are looking for a Raleigh personal injury attorney, you have found one. My law firm, Nichols Law Firm, never pays anyone for endorsements. We provide personalized service to clients, and are available to meet with you during your hours, at your home if you need us too. There is never a fee for a consultation.

_______________

Chris Nichols
www.NicholsTrialLaw.com