Kentucky Injury Law Blog

My good friend and fellow Kentucky acdident lawyer Hans Poppe mentioned a great practice resource to me the other day. Legal Talk Network is an interactive internet radio network for attorneys. Offerings range from "Conversations with F. Lee Bailey" to a show called "Coast to Coast", with Robert Ambrogi and J. Craig Williams from Law.com.

Very interesting stuff and well worth the time.

Kentucky accident attorneys take note: Ahlborn may extend to Medicare

In a significant victory for injured plaintiffs, the Supreme Court ruled unanimously on May 1st that state Medicaid agencies’ claims for reimbursement out of tort settlements are limited to that portion of any settlement attributable to past medical expenses. The ruling means that the agencies may not lay claim to any portion of a plaintiff’s recovery for lost wages, pain and suffering, permanent disability or other future damages. Arkansas Dept. of Health and Human Services v. Ahlborn, 126 S.Ct. 1752 (2006).

Medicaid is not the only federal health care program that has asserted a right to priority repayment out of tort settlements; ATLA members report similar claims by Medicare.

We believe that Ahlborn’s logic should control repayment claims by other federal programs, such as those asserted under the Medical Care Recovery Act (“MCRA”) and the Medicare Secondary Payer Act (“MSPA”), despite differences in the language of each statute, because the basic structure of the repayment obligation is the same under all three federal statutes and because all three acts share a common congressional purpose.

In our view, plaintiffs’ counsel should begin to treat the decision in Ahlborn as controlling in cases involving Medicare and other federally-funded health care programs and should be on the lookout for an appropriate case to seek to extend the holding in Ahlborn.

TO READ THE ENTIRE OPINION LETTER, CLICK HERE: Download Opinion Letter from CCL

A very helpful resource for any Kentucky injury attorneyJanabeth Evans Taylor, R.N., R.N.C co-aouthered a wonderful article for ATLA's TRIAL Magazine on preparing for defense medical expert's deposition.

Brief excerpt:

Here is a general list of information to collect for the medical expert’s deposition. Consider adding these items to your subpoena duces tecum for deposition. Request copies of

• the expert’s license to practice medicine

• certificates, memberships, and awards

• applications for continuing medical education credits for seminars and courses attended

• the expert’s Ph.D. thesis

• published abstracts and articles

• materials presented at professional meetings covering the issue in your case

• patents held by the expert or his or her employer (The Statement of Claims in patent documentation may explain what hazard the invention should ameliorate; for example, a needle guard may be intended to prevent perforation of vital organs.)

• a list of authorities in the lawsuit’s subject that the expert deems to be reliable

• all documents provided to the expert for review in the case.

—Betsey Herd and Janabeth Evans (Taylor)

READ THE ENTIRE ARTICLE: Preparing for the defense medical expert’s deposition

I recently enlisted the help of one of the best trial consultants in the country, Becky Jones of Modlin & Jones Trial Consulting in Northern Kentucky, to help me come up with some Top 5 lists for Kentucky personal injury lawyers. Here is some her advice.

TOP 5 TRUTHS ABOUT JURORS

1. Don’t ask jurors to give your client the “benefit of the doubt” unless you want them to doubt your client.

2. Arguing that the law “only” requires proof “by a preponderance of the evidence” is like telling the jury that the plaintiff doesn’t have a lot of solid evidence.

3. People use their life experiences to fill-in-the-blanks in your case.

4. People don’t enter the courtroom looking for an opportunity to give away money.

5. It’s not what the law allows BUT WHAT JUSTICE REQUIRES that compels jurors to act on behalf of the plaintiff.

contributed by:
Becky S. Jones
Modlin & Jones Trial Consulting
130 Dudley Road, Suite 120
Edgewood, KY 41017
(859) 341-7170
(859) 341-7173 Fax

Kentucky medical malpractice attorneys: Do you request sentinel event and peer review information in all your medical malpractice cases? You should.

All hospitals eligible for federal funding are accredited by the Joint Commission on Accreditation of Healthcare Organizations (the “JCAHO”). As part of its accreditation survey, the JCAHO reviews its members’ processes for identifying, reporting and responding to “sentinel events”. The purpose of these guidelines is to improve patient outcomes and avoid malpractice resulting in serious personal injury or wrongful death.

In 1996, the JCAHO promulgated “Sentinel Event Policy and Procedures”. They state in part:

I. Sentinel Events
In support of its mission to improve the quality of health care provided to the public, the Joint Commission includes the review of organizations’ activities in response to sentinel events in its accreditation process . . .

◆ A sentinel event is an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. Serious injury or loss of limb or function.
◆ Such events are called “sentinel” because they signal the need for immediate investigation and response”

II. Goals of the Policy

“The goals of the policy are four-fold:
◆ To have a positive impact in improving patient care.
◆ To focus the attention of an organization that has experienced a sentinel event on understanding the causes that underlie the event, and on making changes in the organization’s systems and processes to reduce the probability of such an event in the future.
◆ To increase the general knowledge about sentinel events, their causes, and strategies for prevention.
◆ To maintain the confidence of the public in the accreditation process”

Click here for a sample Motion to Compel Production of Sentinel Event and Peer Review Documents

A memo for Kentucky injury lawyers:

As lawyers, we care deeply for our clients. We understand the struggles they endure as a result of their injuries. We also know that when an insurance company doesn't seem to care or doesn't take our client's situation seriously, it compounds our clients' stress and worry.

All too often, we are confronted with unreasonable and unfair settlement tactics. Our instincts tell us to react in a strong, adversarial manner. But to do so does not serve our clients' needs. Not only does the negotiation process break down, but it also provides the insurance company with a rationale for continued unfair stance in negotiation.

By continuing to act in a helpful cooperative manner, one of two things will happen:

a. The insurance company will continue to negotiate and will finally agree to pay your client a fair amount.

OR

b. The insurance company will continue to engage in unfair claims settlement practices through delay, denial or low-ball offers.

Obviously, option a is the preferable outcome. But if they choose option b, there is likely a claim under the Unfair Claims Settlement Practices Act. When this comes to fruition, your client's claim is much stronger when you have maintained a helpful, cooperative stance. On the other hand, if you reacted with bravado and bluster, contentious language or threats, the insurance company will use that to their advantage in defense of the "bad faith" claim. They will attempt to paint you as an unreasonable, greedy trial lawyer. Though you know you were just advocating for your client, juries are sometimes duped by the insurance company's argument that your actions justified their unreasonable conduct.

Hence, the following list of things to do in response to denial, delay or low-ball offers.

1. Maintain civility and cooperation.
Resist the urge to fire off a contentious letter threatening a bad faith lawsuit. That is the worst course of action you can take.

2. Explain to the adjuster why she is wrong, and why the offer is not fair.
Refer to items in the medical record which contradict her stance. Send extra copies of those pages from the record in case she overlooked them.

3. Tell the adjuster how the delay/denial/low-ball offer is impacting your client's life.

4. Ask her to explain/justify why the company’s offer is so low.

***AS WITH ALL NEGOTIATION COMMUNICATION WITH THE INSURANCE COMPANY, THESE STEPS MUST BE IN WRITING. YOU MUST FILL THE ADJUSTER'S CLAIM FILE WITH CORRESPONDENCE AND DOCUMENTS SO THAT SHE CANNOT LATER CONVENIENTLY REMEMBER THINGS DIFFERENTLY.***

I recently recruited one of the best trial consultants in the country, Becky Jones of Modlin & Jones Trial Consulting in Northern Kentucky, to help me come up with some Top 5 lists for trial lawyers. Here is some of her advice.

TOP 5 PIECES OF ADVICE JURORS HAVE FOR LAWYERS

1. Don’t ramble.

2. Get to the point.

3. Be concise.

4. Don’t keep repeating what other witnesses have said.

5. When every fact is repeated, no fact is important.

BONUS: 5 MORE

1. Be assertive without being offensive or aggressive.

2. Don’t try to “spin” an obvious problem. Simply explain why the mistake happened.

3. Explain things clearly.

4. Be organized.

5. Be honest.

contributed by:
Becky S. Jones
Modlin & Jones Trial Consulting
130 Dudley Road, Suite 120
Edgewood, KY 41017
(859) 341-7170
(859) 341-7173 Fax

Janabeth Evans Taylor, R.N., R.N.C of Attorney's Medical Services has compiled a FANTASTIC list of medical resources on the internet. Below is a list of links ... to read the entire article, click: Utilizing the Power of the Web: Medical Resources for Attorneys

Medical information on the Internet is growing and diversifying. Every month more information is added and it becomes more challenging to sift through the many sites to find the content you are looking for. Traditional search engines do not focus on medical sites, and therefore some very valuable sites are overlooked or not updated into the index.

To date, there is no all-inclusive engine for searching medical sites. Nor is there a single engine that adequately and throughly indexes just the most reputable sites. These are a sampling of sites that will search for and retrieve up-to-date, applicable and current postings from peer-reviewed sources.

Continue reading "For the Kentucky Medical Malpractice Attorney: Medical Resources on the Internet" »

One of the best trial consultants in the country, Becky Jones of Modlin & Jones Trial Consulting in Northern Kentucky, has come up with some Top 5 lists for trial lawyers for out blog. Her first installment is below. These tips apply in personal injury, medical malpractice or even insurance bad faith cases.

TOP 5 TRUTHS ABOUT PRE-TRIAL RESEARCH

1. The purpose of pre-trial research (discussion groups, focus groups, mock trials) is not to win the exercise, but to learn how to avoid losing.

2. The purpose of pre-trial research is to learn what questions the jurors will ask.

3. Listen to how research participants speak. They talk like jurors, not lawyers.

4. Don’t simply ask participants what they believe. Ask them why they believe it.

5. Use your research to help you evaluate the best way to resolve your case (i.e. mediation, arbitration, summary jury trial, or jury trial).

contributed by:
Becky S. Jones
Modlin & Jones Trial Consulting
130 Dudley Road, Suite 120
Edgewood, KY 41017
(859) 341-7170
(859) 341-7173 Fax

In preparing for an upcoming bad faith trial, I came across this fantastic article on voir dire by my good friends and worlds best trial consultants Mark Modlin and Becky Jones.  This is from the Florida Trial Lawyers website, and was repreinted from the Kentucky Bar Association’s Bench and Bar. 

Essentials Of Voir Dire

By Mark Modlin and Becky Jones

Trial consulting has existed as a profession for nearly 25 years, but certain aspects of the consultation process have been decades in the making. Voir dire is one of those areas. Considered by some attorneys to be the "necessary evil" of a trial, voir dire has the potential to make or break a case.

Voir dire, the "getting to know you" process of a brief but important relationship between an attorney and a story of strangers, is a conversation that can be the cornerstone of a strongly built case. It also can be a stumbling block between an attorney and the jury, so it is imperative to remember that the relationship is a two-way street.

Attorneys often become too concerned with telling jurors about themselves, and fail to focus on who the jurors are. The key to successful use of voir dire is to educate the jurors about your case and educate yourself about the jurors. To talk one-on-one with prospective jurors and to find out not only what they think but, more importantly, why they think it, is precisely what scares a lot of attorneys.

Continue reading "For the Kentucky Trial Lawyer: Essentials of Voir Dire" »

I was reading the blog DayOnTorts.com (pubished by John Day, trial lawyer extraordinaire from Nashville, Tennessee) today and noticed an interesting blog entry which asked the question:

Do You Bates Stamp Documents ?
You should. Or should do something like it.

I agree wholeheartedly with John’s answer.  In all our medical malpractice cases, I scan records in and use an Adobe Acrobat PlugIn (what's that?) called StampPdf to electronically “Bates Stamp” documents in as many cases as possible.

To read his rationale, click below and read the rest of the post:

Day on Torts: Managing Your Practice.

2006 KATA Annual Convention and Seminar

Sept. 6-8, 2006 at the

Seelbach Hilton Hotel Louisville, Ky.
 

David Ball’s frankly delivered, out-of-the-box, “unlawyerly” lessons will revolutionize the way you present a damage case to a jury. Whether you have tried dozens of cases or have yet to try even one, this presentation will have a profound impact on your ability to connect with a jury.

David Ball, PhD., a nationally known jury consultant and trial skills trainer, is a leading authority on adapting audience persuasion techniques from theater and film to in-court use. Trained in communications, theater, and film, his credits as a director, producer, and playwright include the Guthrie Theater, Broadway and off-Broadway, Carnegie Mellon University, and Duke University, where he chaired Drama.

He has taught law students at Duke, the universities of North Carolina, Minnesota, and Pittsburgh, and Campbell University as Adjunct Professor of Law. He writes for a variety of law publications, and his NITA book Theater Tips and Strategies for Jury Trials is a national best-seller.

David Swanner of South Carolina Trial Law Blog offers up this valuable list:  Top 5 Things Paralegals Want to Tell Their Lawyers

Tips from Paralegal Shirley Hughes

Dear Attorney:

You could make my job easier and I could be a more effective employee by considering the following:

1. Not everything is an emergency. Please prioritize my work.
2. Return phone calls the same day.
3. Do not micro-manage me, you hired me for my brain and ability to do the job.
4. Do not ask me to lie to the client or anyone else, if you don't want to take a call. (I have a solid rule: Lie to me, because I won't lie to your wife when she calls.)

Sincerely,

Your overworked Paralegal

South Carolina Trial Law Blog: Things Paralegals Want to Tell Their Lawyers.

Kentucky insurance bad faith decision.

In Janet Foster v. Kentucky Farm Bureau, the Kentucky Supreme Court reached two important decisions.

The Good: An individual who is unemployed at the time of an automobile accident may collect work loss benefits from a job that she is later offered but cannot fulfill because of a physician's advice, and such conduct is covered by the Kentucky MVRA statutes

The Bad: An insurers failure to pay no-fault benefits does not support a seperate claim for bad faith. The Kentucky Motor Vehicle Reparations Act is the exclusive remedy for no-fault claims, and the Unfair Claims Settlement Practices Act does not apply. There is no bad faith claim available for PIP claims, the attorney fee provision of the MVRA is the exclusive remedy.

ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES ET AL. v. AHLBORN

“[t]here is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient “assign” in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383–385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn’s property. As explained above, the exception carved out by §§1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies.” (Emphasis added).

A recent ruling in the 1st circuit held Daubert objections raised at trial are not timely. Feliciano-Hill v. Principi, No. 04-1072 (1st Cir. Feb 22, 2006).

Dr. Feliciano-Hill argues that, pursuant to Daubert and Rule 702, the district court should have refused to admit Dr. Sierra-Zorita's testimony as evidence. The district court denied Dr. Feliciano-Hill's motion both because it was untimely -- Dr. Feliciano-Hill waited until the moments before Dr. Sierra-Zorita's testimony to object, even though she had received the doctor's report five months earlier -- and because Dr. Sierra-Zorita's report and proposed testimony met the applicable standard. The district court was correct on both grounds.

Parties have an obligation to object to an expert's testimony in a timely fashion, so that the expert's proposed testimony can be evaluated with care. Dr. Feliciano-Hill did not make a timely motion here and has not offered any reason for her delay. The district court was on firm ground in refusing her motion as untimely. See Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2003) (explaining that "because Daubert generally contemplates a 'gatekeeping' function, not a 'gotcha' junction," untimely Daubert motions should be considered "only in rare circumstances"); see also Club Car, Inc. v. Club Car (Quebec) Import, Inc. 362 F.3d 775, 780 (11th Cir. 2004) ("A Daubert objection not raised before trial may be rejected as untimely.").