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

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

In the not too distant past, Medicaid was a reliable source for payment of medical bills for clients who were from low incomes homes or disabled (but not eligible for Medicare).

In the last five years, Medicaid has changed rules which emphasize that Medicaid is a secondary payer to third party liability insurance. While this seems “fair” in the sense that the negligent third party caused the injury, the reality is that Liability Insurance Companies rarely, if ever, “pay as you go” for medical treatment. To protect their insured (and their bottom line) they refuse to pay for services as they are rendered and choose to pay “at the end” of the case, after treatment is completed.

This makes it hard for clients to get needed medical treatment, makes that treatment more “expensive” for the client, and takes away Medicaid’s 1/3 “cap” on recovery from liability settlements.

I frequently get inquiries from lawyers about how to “make Medicaid pay” for medical treatment. Alternatively, the question is also “How can I force the medical provider to submit the bills to Medicaid?” Many medical providers do not like being paid by Medicaid because the reimbursement rates are low and the provider must accept Medicaid’s payment as payment in full (aside from the $3 co-pay Medicaid allows).

Below I have pasted the relevant sections from Medicaid’s manual to medical providers which provide the framework for how to get the bills paid.

You can view the entire Medicaid manual here.

Retroactive Eligibility
Retroactive coverage may be approved for up to three calendar months prior to the month of the application if the applicant meets all eligibility conditions in the retroactive period. Medicaid will pay for covered services received during the retroactive period provided that all other Medicaid guidelines are met. Providers may choose to accept or decline retroactive eligibility. However, the provider’s office policy should be consistently enforced. If a provider accepts retroactive eligibility, upon receipt of Medicaid reimbursement, the provider shall refund to the recipient all money paid by the recipient for services covered by Medicaid.
 
Accepting a Medicaid Recipient
In accordance with 10A NCAC22J.0106, a provider may choose whether to accept a patient as a Medicaid patient. However, Medicaid providers must be consistent with their policies and procedures when accepting or refusing Medicaid recipients. Providers may not discriminate against a Medicaid recipients based on the recipient’s race, religion, national origin, color, or handicap.

Agreeing to provide services to a Medicaid recipient and submission of a claim to the N.C. Medicaid Program for payment constitutes agreement to accept the Medicaid payment (in addition to any authorized copayment or third-party payment) as payment in full.

A provider may refuse to accept a Medicaid recipient and bill the recipient as private pay only if the provider informs the recipient prior to rendering the service, either orally or in writing, that the service will not be billed to Medicaid and that the recipient will be responsible for payment.

But of course, you have to compare those passages to the rules regarding Third Party Liability situations: 

Third-Party Liability
State and federal regulations for third-party liability (TPL) require responsible third-party insurance carriers to pay for medical services prior to a provider’s submitting a claim to Medicaid. Providers are required to seek payment from third-party insurance carriers when they know of their existence. A third-party insurance carrier is an individual or company who is responsible for the payment of medical services. These third parties are Medicare, private health insurance, automobile, or other liability carriers. DMA’s third party recovery (TPR) unit is responsible for implementing and enforcing TPL laws. The TPR unit implements and enforces these laws through both cost avoidance and recovery methods. Refer to Section 7, Third-Party Insurance, for additional information.

Time Limits for Filing Claims
All Medicaid claims, except inpatient claims and nursing facility claims, must be received by HP Enterprise Services within 365 days of the date of service in order to be accepted for processing and payment. All Medicaid hospital inpatient and nursing facility claims must be received within 365 days of the last date of service on the claim.

Third Party Liability – Commercial Health Insurance and Medicare – Medicaid Payment Guidelines for Third Party Coverage
Federal regulations require Medicaid to be the “payer of last resort.” This means that all third-party insurance carriers, including Medicare and private health insurance carriers, must pay before Medicaid processes the claim. Additionally, providers must report any such payments from third parties on claims filed for Medicaid payment.
 
Determining Third-Party Liability- Commercial Health Insurance and Medicare
The following information helps providers to determine if a Medicaid recipient has third-party liability (TPL):

1. Check the recipient’s eligibility for third-party insurance information. (Refer to Appendix F, Verifying Recipient Eligibility, for additional information on verifying eligibility and checking for third-party insurance.)
2. Before rendering service, providers should ask the recipient if s/he has any additional health insurance coverage or other TPL, including Medicare. If health insurance is indicated, the provider must bill the carrier before billing Medicaid written denial from the insurance company.

Time Limit Override on Third-Party Insurance – Commercial Health Insurance
All requests for time limit overrides due to a third-party insurance carrier that does not respond within its time limit must be submitted to the TPR section and include documentation verifying that the claim was timely filed to the third-party insurance carrier.

If the third-party insurance carrier does not respond within the Medicaid time limit, time limit overrides may be granted if the claim is filed within 180 days of the third-party denial or payment. Submit the claim with a completed Medicaid Resolution Inquiry Form.

Billing for Personal Injury Cases

The provider must choose between billing Medicaid and submitting the bill of charges to the liability insurer. Providers cannot initially file a casualty claim with Medicaid, receive payment, and then submit the bill of charges to the liability insurer (or the recipient) for the same service, even if the provider refunds Medicaid.

The provider cannot bill the recipient, Medicaid, or the liability insurer for the difference between the amount Medicaid paid and the provider’s full charges. (See Evanston Hospital v. Hauck, 1 F.3d 540 [7th Cir. 1993])

Providers who withhold billing Medicaid have six months from the date of a denial letter or receipt of payment from the insurance company to file with Medicaid, even if the end of the six months is after the end of the usual 365-day filing deadline.

In order for the provider to obtain a time limit override, however, the following requirements must be met:

• The provider must have filed the claim with the liability insurer or attorney within 365 days from the date of service.
• The provider must have made bona fide and timely efforts to recover reimbursement from the third party.
• The provider must submit documentation of partial payment or denial with a claim to Medicaid within six months of such payment or denial.

Payment for Personal Injury Cases
When Medicaid payment is received, the provider is paid in full and there is no outstanding balance on that claim. Once Medicaid makes a payment for a service, only Medicaid has the right to seek reimbursement for payment of service. If the provider withholds billing Medicaid and receives payment from a liability insurer , the provider may bill Medicaid with the liability payment indicated on the claim. Medicaid may pay the difference if the Medicaid allowable amount is greater than the liability payment. Pursuant to federal regulations and the Evanston case, there is a distinction between private health insurance payments and other liable third-party payments.

Refunds and Recoupments for Personal Injury Cases
If Medicaid discovers that a provider received Medicaid payment and communicated with a third-party payer or attorney in an attempt to receive payment of any balance,Medicaid will recoup its payment to that provider immediately, regardless of whether the provider ultimately receives payment from that third party. 

The following is an example of how a liability payment should be treated:

• Amount billed by provider to Medicaid $100.00
• Amount paid by Medicaid $50.00
• Amount paid by attorney/liability carrier $100.00
• Amount to be refunded to Medicaid $50.00
• Amount to be refunded to attorney/liability $50.00

The following is from a “Frequently Asked Questions” portion of the Medicaid rules book:

2. Why was my claim denied for EOB 094, “Indicate private insurance payment or attach denial and submit as a new claim. (UB users may use insurance denial occurrence codes.) Attach Medicare vouchers if applicable.”?

The TPL database indicates the recipient had third-party insurance on the date of service for which you are requesting reimbursement and that this type of insurance should cover the diagnosis submitted for payment. If your service could be covered by the type of insurance indicated, you must file a claim with that insurance company prior to billing the Medicaid program. If you receive a denial that does not indicate noncompliance with the insurance plan, or if you are paid for less than your charges,bill the Medicaid program and, if appropriate, your claim will be processed.

9. May I have an office policy that states I will not accept Medicaid in conjunction with a private insurance policy?

Yes. A provider can refuse to accept Medicaid for recipients who also have third-party coverage, even though they accept Medicaid for recipients who do not have third-party coverage. However, providers must advise the recipient of the responsibility for payment before the services are rendered. The provider must obtain proper consent from the recipient for this arrangement prior to any services being rendered. The signed form must be in the recipient’s record.

11. When do I file my claim with HP Enterprise Services and when do I file it with the TPR section? Send your claim directly to HP Enterprise Services when

• The recipient has no private health insurance
• The insurance EOB reflects an insurance payment
• There is an insurance denial with the following reasons: 
  • Applied to the deductible 
  • Benefits exhausted 
  • Noncovered services (meaning the service was not and will never be covered under this policy) 
  • Pre-existing condition

_______________________________________________ 

My advice to lawyers is to contact the medical providers immediately and explain that payment from a liability claim may not be forthcoming in any short period of time. Encourage the provider to submit the bills to Medicaid. It may also be persuasive to have the Liability carrier write a “denial letter” or send a copy of a letter where the carrier cites “pre-existing conditions” as a reason for not settling the case. This may encourage the provider to submit the bills to Medicaid.

Further, if a provider refuses to accept Medicaid, and that provider is a hospital, inquiries into the consistency of those submissions to Medicaid may encourage submission. 

Chris Nichols
www.NicholsTrialLaw.com

QUESTION: Is Medicaid’s lien capped at one third of liability proceeds received or half of what is left over after attorney’s fees? In other words, if I am pro-rating a Medicaid lien with 44-49 liens and my fee is 25%, are they still sharing a third or are they sharing 37.5%?

ANSWER: Medicaid gets no more than 1/3 of the total settlement. Your attorney fees are irrelevant to Medicaid’s share. The most Medicaid can get is 1/3 of the settlement, even if you charge only 1 dollar as a fee.
 
Medicaid will prorate with NCGS 44-49/50 liens within their 1/3 share. But remember that paying the parorata share of the 44-49/50 liens does not extinguish the balance of the medical bill. The client still owes the balance after the prorata share unless you negotiate a “final payment” compromise with the mediacl provider. 44-49/50 simply act as as a way to get the lawyer out of the middle and get the provider some money before they have to turn to a collection action to get it.
 
The 1/3 (or Medicaid’s portion thereof) DOES take care of Medicaid, in full.

_________________________

Chris Nichols
www.NicholsTrialLAw.com

So as part of the political debate, Obama is talking about changing health insurance, but he is also talking about medical malpractice reform. Some of my fellow trial lawyers are getting stirred up because we don’t think that extending coverage of health care ought to also limit an injured person’s access to justice.

Here are some links which discuss Obama’s comments in the last few days:

Obama Talks Up Liability Reform
Politico
http://www.politico.com/news/stories/0609/23783.html
 
In Pitch to AMA, Obama Paints Mixed Picture
Washington Post
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/15/AR2009061501744.html
 
Cost Concerns as Obama Pushes Health Issue
New York Times
http://www.nytimes.com/2009/06/16/health/policy/16obama.html?hpw
 
Obama Calls Cost of Healthcare a Threat to Economy
Chicago Tribune/LA Times
http://www.latimes.com/news/nationworld/washingtondc/la-na-obama-ama16-2009jun16,0,1354461.story
 
I tend to agree with the gist of the Politico article: Obama has to keep all options on the table and speak in terms that ever player in the debate feels are near and dear to their interests.

I think the debate will be rational, and because of that I think that the data which show that very little of the overall cost of health care has anything to do with malpractice lawsuits will not be ignored. There are things that can be done to decrease the cost of lawsuits. Call it reform or not, that’s up to you.

I commonly request that each side to a malpractice suit be limited in the number of expert witnesses who can be used on a certain subject. Almost universally the lawyers for the Doctors will not voluntarily limit the number of expert witnesses. This increases the costs to defend these suits. There is one liability reform I’m fine with implementing.

Chris Nichols

Four people were in critical condition after the explosion at the ConAgra Foods plant in the town of Garner and 20 others were taken to area hospitals. It appears that the worst of the injured suffered severe burns.

This is an unwelcome and sadly familiar feeling for our area after the plant explosion in Apex.

I noticed in my search on the Internet for news about the explosion that law firms from out of the state of North Carolina are already posting about the explosion. I hope that these posts are part of an overall reporting of industrial accidents rather than simply an attempt to attract business. Even with law, the idea of “buying local” makes sense.

Thankfully, Raleigh and Garner have many talented lawyers experienced in industrial fires and explosions and the claims resulting from them. As anyone from North Carolina can tell you, the worst industrial accidents was the fire at Imperial Foods chicken processing plant in Hamlet in 1991.

According to official reports, twenty-five (25) people died and another forty-nine (49) were injured as the result of a fire in the Imperial chicken processing plant. Witnesses at the scene described that workers could not get out of exit that were padlocked by the plant management to prevent vandalism and theft.

There is an excellent article on the investigation and eventual prosecution of the owner of the Hamlet plant on Wikipedia found here.

I sincerely hope that the ConAgra Plant had no safety violations like the Hamlet Plant.

Interestingly, the Wikipedia entry for Hamlet says that some of the Hamlet fire victims hired an out of state lawyer who handled the Bhopal chemical disaster in India but that that lawyer did not qualify to practice in North Carolina.

I send thoughts and prayers to the families of the injured and killed.

Chris Nichols
Nichols Law Firm
Raleigh, NC

Arbitration is a good thing when it is at the option of the injured person.

One issue that is constantly debated on arbitration panels is the issue of “Prejugment” Interest on the Arbitration Award. A new case from the North Carolina Court of Appeals clarifies this often hotly debated subject. 

The case is Hamby v. Williams, NO. COA08-662 (May 2009) which supports the leading case on the issue Sprake v. Leche, 188 N.C. App. 322, 658 S.E.2d 490 (2008)

In Hamby, the arbitration panel was asked to award interest on the award but deferred that issue to the Superior Court “for further review”. The plaintiff presented evidence of the date of filing of the complaint. The Superior Court denied Plaintiff’s motion for interest and confirmed the arbitration award. In Hamby, the court first confirms that Interest is available under the standard insurance policy. 

[Insurance carriers contend that] the UIM/UM policy “does not specify anywhere that a party is entitled to prejudgment interest on an arbitration or jury award.” This assertion is incorrect. The applicable provision of the policy provides that “[UIM carrier] will pay all sums the ‘insured’ is legally entitledto recover as compensatory damages . . . .” In Sprake v. Leche, 188 N.C. App. 322, 658 S.E.2d 490 (2008), this Court held that prejudgment interest is part of compensatory damages for which an UIM carrier is liable. Id. at 325, 658 S.E.2d at 492 (citingBaxley v. Nationwide Mutual Ins. Co., 334 N.C. 1, 11, 430 S.E.2d 895, 901 (1993) and Austin v. Midgett, 159 N.C. App. 416, 419, 583 S.E.2d 405, 409 (2003)). Since the policy specifically provides for payment of “compensatory damages” these cases control. The arbitration provision provides that if the parties disagree on the amount of damages, then the matter may be arbitrated. The arbitration provision in no manner limits the scope of “compensatory damages” and the above-referenced provision of the policy controls.

Then the court goes on to establish HOW a Plaintiff can get interest awarded.

In the instant case, the parties consented to arbitrate plaintiff’s UIM claim “in accordance with the terms of the policy of insurance[.]” The parties stipulated that the issue to be determined was the amount of plaintiff’s “damages resulting from the auto accident of May 22, 2003[.]” The terms of the policy provided for “compensatory damages,” which included prejudgment interest. Id. at 325, 658 S.E.2d at 492. We thus hold the arbitration agreement did encompass prejudgment interest. Since the arbitration agreement encompassed prejudgment interest, and this issue was deferred to the trial court for resolution, Palmer, Eisinger, and Blantonare not applicable, and an award of prejudgment interest would not constitute a modification of the arbitration award. N.C. Gen. Stat. § 24-5(b) (2007) provides that: “[i]n an action other than contract, any portion of a money judgment designated by the fact finder as compensatory damages bears interest from the date the action is commenced until the judgment is satisfied.” We hold this provision to be mandatory and not discretionary on the part of the trial court, and that the trial court erred in not awarding prejudgment interest to plaintiff. (emphasis added) The portion of the trial court’s order denying prejudgment interest to plaintiff is reversed and this matter is remanded for entry of judgment awarding plaintiff prejudgment interest.

So what does this mean? How do you get interest?

1. Have an arbitration agreement that includes, at least, the following:

(A) The “issue to be determined is the amount of plaintiff’s compensatory damages resulting from the auto accident of ……”

(B) The arbitration is to proceed ““in accordance with the terms of the policy of insurance”.

2. You MUST ADDRESS and ASK for prejudgment interest at the time of the arbitration. 

3. If the panel does not address the issue of interest in the award, you will not get interest from a Superior Court Judge even if you attempt to get it by having the award entered as a judgment. See Blanton v. Isenhower, ___ N.C. App. ___, ___ S.E.2d ___ (April 7, 2009) (No. 08-864) which cites the original “killer” of interest awards, Palmer v. Duke Power Co., 129 N.C. App. 488, 499 S.E.2d 801 (1998) (sorry no link, but basically the Court said that if the arbitrators did not address something in an Award, a Court can not modify that award unless it is simply a mathematical error.)

My last bit of advice is to advise your opposing counsel that you are seeking interest before the arbitration. Send a copy of the Hamby case. Get a copy of the policy and make sure that the language works for you. Prepare a “suggested” award for the panel which addresses the interest issue. Be prepared to hand up cases to the Panel confirming they have the power to award interest.

Chris Nichols
Nichols Law Firm

Where the right to intrastate travel is a “right of function,” the right to enter public parks is not encompassed by either the fundamental right of travel or the right to intrastate travel. We affirm the trial court order upholding the defendant-town’s ordinance, which prohibits registered sex offenders from knowingly entering any public park owned and operated by the town.

Standley v. Town of Woodfin

Click Here for the full text of the opinion.

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

The article says that the Bush administration “will no longer pay the extra costs of treating preventable errors, injuries and infections that occur in hospitals.”  The new rules go into effect in October, 2008

Charges can not be passed down to patients. The administrative rule stems from a 2006 law but the implementation was delayed for fear that hospitals would pass along the charges to patients.

Under the rules, the charges CAN NOT be passed along to the patient.

Common Errors and Infections. There is no indication exactly how the program will determine which fees are the results of preventable errors.  However, it does look like certain issues will be considered “per se” error, such as bed sores, bladder infections resulting from catheters, and preventable infections such as those stemming from staphylococcal infections.

The rule identifies eight conditions — including three serious types of preventable incidents sometimes called “never events” — that Medicare no longer will pay for. Those conditions are:

• Objects left in a patient during surgery
• Blood incompatibility
• Air embolism
• Falls
• Mediastinitis, which is an infection after heart surgery
• Urinary tract infections from using catheters
• Pressure ulcers, or bed sores
• Vascular infections from using catheters
• The Centers for Medicare and Medicaid Services said it also would work to add three more conditions to the list next year.

$20 Million Dollars Worth of Malpractice.  The Bush administration expects this will save $20 million per year, which to me means there is $20 million per year worth of treatments designed to “fix” malpractice.  You can count this as one of the first times this Administration has recognized the prevalence of medical negligence.

Implications for Attorneys.  The implementation of this policy only seems to have positive implications for victims of malpractice.  The most obvious would be that if Medicare does not pay for these services, then there can not be a lien from recovery.  I would suppose that if one gets a verdict or settlement on a malpractice claim that if Medicare has paid, the attorney for the patient could argue that Medicare should receive a refund from the medical provider rather than a lien against the Plaintiff’s recovery.  Right now I don’t know the effective date of the policy change.

I will be doing further research to see how the regulations will be implemented.  I’m assuming that Medicare’s refusal to pay for “malpractice” will not be admissible to prove negligence in malpractice cases.

A further question is what happens when the victim of malpractice needs medical treatment for the remainder of their lives?  Will the hospital be paying for all the bills?  I’m thinking this will be a difficult issue in some cases.

Check back for updates on this post.

Chris Nichols
www.NicholsTrialLaw.com

The article below was written by a self-described conservative Christian physician who deeply questions the politics of taking away justice from injured people in the name of politics and for the goal of profitting “big business.”

This shows me that people are seeing that fairness and responsiblity are truly non-partisan issues, and that lawsuits, in and of themselves, are not “all bad.” In fact, lawyers and lawsuits have often been all that stands between the public and harm.

Remember the Little Guy
by Steven Hotze, M.D.

Shouldn’t companies and individuals who cause you harm be responsible for the damages they inflict?

You are probably aware of the lawsuits in the 1970s against Ford Motor Company and its Pinto automobile. Because of poor design, rear end crashes often caused the Pintos gasoline tank to explode into flames. Over 500 drivers lost their lives and thousands more were severely burned. Ford knew about this problem and that it would only cost $11 per car to repair but determined it was cheaper to pay the lawsuit settlements than recall the vehicles. Incredibly, Ford put their profits above the safety of their customers.

Because plaintiff attorneys were willing to file lawsuits on behalf of these injured individuals and families on a contingency basis and fight the multi-billion dollar Ford Motor Company, Ford paid hundreds of millions of dollars in judgments. Ford was also criminally charged with negligent homicide for having knowingly sold unsafe cars.

These lawsuits against Ford were based on product liability law which holds businesses responsible for any injuries caused by their products. The Ford lawsuits and resulting settlements sent a strong signal to the automobile industry. Safer cars have been the result.
Over the past decade, the Republicans in the Texas Legislature have passed a series of bills which have limited the liability of large corporations when they are found by a jury to have caused injury to their employees or their customers. This has me concerned and it should have you concerned as well.

Who wouldnt want limited liability for their actions? This is especially true of some large corporations which place their financial interests above the well being of their employees and customers.

Under current Texas law, it is hard to imagine that Ford Motor Company would have been required to pay out such a large amount of money in judgments as it did at that time.

Tort reform has dramatically limited the liability of businesses and individuals in Texas. The Texas Legislature has set limits on the amount that a business or individual can be required to pay in judgment to an injured party. No one likes the idea of frivolous lawsuits, but most individuals seem to agree that a remedy should be paid to an injured party commensurate with the damage.

Who does this current law benefit? It benefits the large corporations and the well financed who have deep pockets and the wherewithal to hire a bevy of defense attorneys. Their financial risk for shoddy workmanship and unsafe products has been dramatically reduced.

What about the small business owner or the individual with modest means? How will they afford the assistance of a lawyer to help them be fairly compensated for their losses?

As a physician and conservative, I have a healthy distrust for big government and big business. The conservative position requires accountability for actions. It appears to me that the pendulum for tort reform has swung too far in favor of big business.

Its time to remember the little guy.

by Steven Hotze, M.D.

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Chris Nichols
www.NicholsTrialLaw.com