| Read Time: 3 minutes | Chuck Geerhart Blog

California Wrongful Death Damages: What Can You Recover?

If your loved one dies because of another person or entity’s reckless, negligent, or intentional action, you may be entitled to receive wrongful death damages in California. Though you may be grieving, understand that you must take action within two years of the death of the deceased in order to bring a legal case for California wrongful death. Difference Between Punishment for Wrongful Death vs Criminal Homicide The wrongful death cause of action falls under the umbrella of personal injury lawsuits that you would file in civil court. Homicide is a cause of action brought by a prosecutor in criminal court. The difference in punishment between wrongful death and criminal homicide is that a wrongful death claim involves liability in terms of financial compensation. Criminal homicide involves jail, prison time, probation, or other sanctions.  Wrongful Death Damages in California Determining California wrongful death damages can be difficult because some of the components do not involve expense numbers. There are two types of wrongful death damages available. Damages are defined in the Judicial Council of California Civil Jury Instructions 3921 (CACI), which are forms used to explain specific laws to jurors who must apply them. The two categories of wrongful death damages are economic and non-economic damages.  Economic Damages Financial compensation for expenses that can be reasonably quantified are economic damages. These are related to actual monetary costs that occur because of the death of the deceased. According to CACI 3921, these include: Financial support that the deceased would have contributed to the family; Loss of gifts or benefits that the family would have expected to receive from the deceased; The reasonable dollar value of household services that the decedent would have provided; and Burial and funeral expenses. Unreimbursed medical costs that were incurred due to the nature of the action that caused death are filed under a different claim called a “survival action,” which is brought by the estate of the deceased. Survival actions also address lawsuits that the deceased had the right to file prior to death.  Non-Economic Damages Non-economic damages typically pertain to the mental and emotional aspects of loss, but under CACI, wrongful death damages do not include grief, sorrow, or pain and suffering. The jury may award wrongful death damages that they deem reasonable given the evidence provided. Things to take into considerations when determining non-economic damages include: Loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support; Spouse or partner’s loss of consortium (enjoyment of intimacy); and Loss of training and guidance.  Proving non-economic wrongful death damages can be difficult without the assistance of an experienced wrongful death attorney. You will generally need witnesses and other evidence to show that love, companionship, and other elements of a healthy relationship existed.  Who Can File a Wrongful Death Claim in California? California Code of Civil Procedure 377.60 allows the following family members (or their personal representatives) to bring a lawsuit for wrongful death in state civil court: A surviving spouse; A domestic partner; Biological and adopted children; Grandchildren (if the deceased person’s children are also deceased), Other minor children (such as stepchildren) who were at least 50% dependent on the deceased for their financial support; and Anyone who would be entitled to the property of the decedent by intestate succession. This last group may include the deceased person’s parents, or siblings, depending on who is living at the time of death. In some cases, there may be additional dependents who may have the right to receive wrongful death damages. These may include: A “putative spouse” (someone who had a good faith but mistaken belief that they were in a lawful marriage with the deceased); Children of the decedent’s putative spouse; Parents of the deceased; and Legal guardians of the decedent. These individuals must be able to prove that they were financially dependent on the deceased. Should You Hire a California Wrongful Death Attorney? In order to succeed on a wrongful death claim, you must have sufficient evidence to prove that the death was caused by the negligent actions of another person. It is important to have an experienced legal team to conduct investigations, gather evidence, and navigate the complex California legal system. The Law Office of Chuck Geerhart can also help you determine what your wrongful death case is worth so that you do not settle for less than what you deserve. With over 30 years of experience, Chuck Geerhart understands how to effectively and compassionately help you through this tough time by providing the legal support you need. Contact us for your free case consultation.

Continue Reading

| Read Time: 3 minutes | Personal Injury

Is It Important That I Hire a Personal Injury Lawyer Who Is “Near Me”?

If you or someone you love was injured in a personal injury accident caused by another party’s negligence, you might be searching for a lawyer. When you search online, you may enter the search term, “personal injury lawyer near me.” However, do you really need to hire a lawyer that is close to where you live? The answer is not as black and white as you may assume. While you probably shouldn’t hire an attorney that is hundreds of miles away, you shouldn’t necessarily hire the closest option either. Deciding When You Need an Attorney The first thing to consider is whether you need an attorney or not. If your personal injury accident happened in California, your case would be subject to California law. California is a pure comparative negligence state, which means you can collect a portion of your damages even if you are partially at fault in the accident. In fact, you can collect some compensation even if you are primarily at fault. For example, if you are determined to be 25% at fault, you will receive 75% of your damages. If you are found to be 75% at fault, you could collect up to 25% in damages. Why is this important? With pure comparative negligence, the defendants will be doing their best to place the maximum blame on you. Their goal is to pay the least amount of money possible. That means you need a qualified California personal injury attorney on your side. You should choose an attorney who can protect your rights and fight for the maximum compensation you deserve. Choose a Qualified Attorney One of the biggest mistakes people make when hiring a personal injury lawyer is hiring the attorney that is closest to their home. Just because they are a five- or ten-minute drive doesn’t make them the most qualified to handle your case. If you have a medical malpractice claim, you need an attorney specializing in these types of cases who has the experience necessary to take your case to trial. The personal injury law firm closest to you may primarily handle car accident cases. Choose an Attorney You Feel Comfortable With Don’t choose an attorney simply because they are the closest option. What if you don’t like their personality or you don’t feel completely comfortable with them? Finding the right attorney whom you trust and feel comfortable with is crucial. You will be working closely with this person. If you don’t like them, how will they come across to a jury if the case goes to trial? You want an attorney who is relatable and who will make a good impression on a jury. By only searching attorneys close to you, you could miss out on the right lawyer for your case. Choosing an Attorney with the Necessary Financial Resources Most personal injury attorneys work on a contingency basis. That means they don’t get paid unless they recover compensation in your case. The usual fee agreement is a percentage of your overall settlement. If your case goes to trial, the attorney needs to handle all the legal costs and fees to present a strong case. If the attorneys near you won’t have the financial means to take on your case, or perhaps they are busy, they may need to transfer your case to another law firm anyway. Rather than start all over with a new lawyer, why not find the right one for you from the start? Hiring the San Francisco Personal Injury Lawyers at the Law Office of Chuck Geerhart If you need a personal injury lawyer to help you, look no further than the San Francisco personal injury lawyers at the Law Office of Chuck Geerhart. We have years of experience helping injured victims like you. We aren’t afraid to stand up to big corporations. We offer free, no-obligation consultations, so there is no risk to meet with us. We can help you decide what the best course of action is for your particular case. Contact the Law Office of Chuck Geerhart today to learn more about how we can help you fight for the compensation you are owed.

Continue Reading

| Read Time: 2 minutes | Chuck Geerhart Blog

How Fast Will My Case Settle?

One of the questions most often asked by clients is “How long will it take to get my case settled?” Good question! Most people who have been injured want to get their claim settled and move on with their lives.  The answer varies depending on the severity of injury, whether liability is clear, and whether there is an insurance carrier or company with adequate assets to pay for the damage caused. When you are injured through the fault of another, you first go through the claims stage. If you can get your case resolved in the claims stage, you’re fortunate, because that’s not the norm in major injury cases. Most insurance carriers want to drag things out so they can hold on to their money longer. Also, they rarely want to pay fair (i.e., full) value right off the bat.  They have found that dragging claims out tends to help them settle more cheaply. This is especially true for people without lawyers. Carriers know they can settle those cases far more cheaply, because a lay person has no idea how to value a claim. In building a claim, it is my job to obtain all your medical records and bills. This can take a few months, since health care providers (especially SF General Hospital) do not make us their priority. It can also take months to get records of Medi-Cal and Medicare payments. I have settled many cases in the claims stage, but it usually takes at least three to four months. A major exception to the rule that cases rarely settle quickly in the claims stage is where there are low insurance policy limits, such as a $15,000 state minimum policy in an auto accident case. It does not take much of an injury to max out a $15K policy.  But even major injury cases can settle quickly if there is the right policy limit. Example: a broken tibia with surgery, and the driver has a $100K policy. That claim should settle quickly for the policy limit, unless the driver has lots of monetary assets. (In general, chasing after the negligent person’s personal assets is a waste of time, because he doesn’t want to pay, and he can declare bankruptcy if you get an above limits judgment.) If you have been seriously injured and had surgery, you will take many months to recover.  Your level of recovery dictates when the case is ready to settle. You never want to settle prematurely, because when you do settle, you will sign a release of all claims forever and for all time. So if there is any possibility you might need more surgery, you cannot settle until you know your prognosis accurately. If your case cannot settle at the claims stage, either because of liability issues or the carrier is being cheap, the only way to get justice is to move on to litigation. Then you truly have a case, i.e., a filed lawsuit. In most California counties, it will take about a year and a half to actually commence a jury trial. Fortunately for you, 97% of all civil cases settle, some early, some on the eve of trial. It is not uncommon for a filed lawsuit to settle within about six months after the carrier realizes you’re serious. The takeaway: if you want to maximize your settlement, you need to be patient and prepared to have your claim take several months to a year or more to resolve.

Continue Reading

| Read Time: 2 minutes | Chuck Geerhart Blog

Uninsured and Underinsured Motorist Claims and Coverage

We often tell new clients that the most important advice we can give them, apart and separate from our prosecution of their claim, is to buy as much uninsured/under-insured motorist insurance coverage as they can afford. This is to protect themselves as fully as possible from losses from an automobile accident caused by another driver who has no insurance, or inadequate insurance. (California law requires drivers to only have $15,000 of liability insurance to pay other people they injure in an accident.) Time after time we talk to people who have been seriously injured in a car accident who will not be fully compensated because the other driver had too little or no insurance, and the injured person did not have enough uninsured/under-insured motorist coverage. A typical scenario is this: the other driver has a $15,000/$30,000 liability insurance (per person /per accident) and causes serious injury to our client justifying compensation of more than $200,000 for medical expenses, income loss and pain and suffering. The other driver’s insurance company pays the $15,000 per person limit, and now the injured person looks to his or her own insurance to pay the balance of the compensation under the under-insured motorist coverage of our client’s own insurance policy. We can recover adequate compensation only if our client has adequate under-insured motorist (UIM) coverage. Often, our clients need to have $500,000 or more coverage; far too often they do not. Our personal experience is that the cost of acquiring the additional higher uninsured/under-insured motorist coverage is a small price to pay to be fully protected, and the additional premiums usually seem to be a bargain ($500,000 UIM coverage is only $112 per year at one major automobile carrier). At the very least, the issue should be discussed with your insurance agent so you know how much more it will cost, and can make an informed decision.

Continue Reading

| Read Time: 2 minutes | Chuck Geerhart Blog

What’s Up in the Law of Bicycling

You’re riding along, feeling great, and all of a sudden a car pulls out from a parking place in front of you and knocks you over.  You’re hurt.  Badly.  What do you do? First of all, take care of yourself. Summon an ambulance and go to the ER or urgent care.  Also, make sure the police come to the scene and take a report (they will only come if there is a personal injury). That will be important for insurance purposes. Get the names and numbers of any witnesses (if the police come, they will get this information, but sometimes witnesses leave, so you should get the info too).   Witnesses are important because after the fact, many drivers lie to their insurance carriers and will say that you slammed into them and were speeding. The most common bike cases I have handled involve dooring, cars turning into bicycles, bikes in crosswalks, and bikes traveling too close behind a car that stops suddenly. Bicyclists are considered a “vehicle” under California law (the Vehicle Code, or VC) and have most of the same rights and responsibilities as cars. VC 21200  spells out the rules as regards bicycles. Cars are supposed to stay at least 3 feet away from bicyclists when passing (VC sec. 21760). Where there is no bike lane, you are allowed to share the road with cars, but you should ride to the right to allow cars to get past you, assuming it is safe to do so.  Don’t ride so close to the right that you get doored!  Drivers do have an obligation to look before opening their doors (VC sec. 22517). Don’t enter a crosswalk at speed (technically, you are supposed to walk your bike in a crosswalk, since you are a vehicle). A car may have assumed the crosswalk was vacant and then turn and hit you. Wear a helmet.  I have handled very sad brain injury cases where the rider did not have a helmet on. If you bike at night, be well lit. Even if the car is at fault for the resulting accident, you could be held comparatively at fault for the lack of a helmet or lights. This reduces or bars your right to recover money damages.

Continue Reading

| Read Time: 5 minutes | Chuck Geerhart Blog

How to Succeed at an MSC in San Francisco Superior Court

SFTLA CLE Presentation April 25, 2017 By Arnie Levinson and Chuck Geerhart The Mandatory Settlement Conference is your next to last chance at a formal settlement negotiation (you might get ordered to a day of trial settlement conference.) The Court usually schedules the MSC to occur about three weeks before trial. This means that sometimes costly expert depositions will still not have been taken, which in a smaller case can make a huge difference to the plaintiff’s bottom line recovery. The looming trial date also should mean that both sides have fully evaluated their cases and are ready to deal. Alas, we have found this is not always the case. SF Superior Court Local Rule 5 (http://www.sfsuperiorcourt.org/general-info/local-rules) states requirements for the MSC. Attendance by all decision makers is required (see LR 5D). LR 5E requires counsel to ascertain what liens will affect settlement and request in writing that lienholders attend the settlement conference. That request is supposed to be attached to the MSC statement. LR 5F requires the parties to engage in settlement discussions before the MSC. Plaintiff must make a demand five days before and the defense must make an offer two days before the MSC. LR 5F also states in detail what is required in an MSC statement. The local rules state the ideal. The reality we have seen as Settlement Conference Officers is far from the ideal. Attorneys for both sides often show up unprepared, sometimes having not even thought about offers or demands until that very moment. Here are the main pitfalls plaintiff counsel need to avoid in order to succeed for their clients: 1) Have a complete set of medical records and bills (including proof of what was paid under the Howell case). If you are missing this proof, the insurance carriers reduce the value of your claim. The total amount of medical expenses is not relevant to the defendant. It will only assess the case based on the Howell number. Get this to the defense well in advance of the MSC. The carriers often send claims reps who are unfamiliar with the case. The decision about value has already been made before the MSC by a supervisor who is not present. 2) If there is wage loss, be prepared to show medical proof that plaintiff needed to miss work, and proof of his earnings. Without this proof, be prepared to take a haircut on value. 3) Know the value of every lien, and have communicated with the lienholders. If you don’t know the value of the liens, the defense probably can’t settle with you that day. More important, you can’t tell your client what her bottom line is. For Medicare and Medi-Cal, you need to start communicating with the governmental agencies months before the MSC. You will not be able to get a lien amount the week before the MSC. 4) Know your client’s medical prognosis, preferably via a written report or deposition of the doctor. Claiming permanent residual injuries increases case value, but you can’t just make the bald assertion that your client is hurt forever without medical proof. Get the physician nailed down about prognosis and provide the proof to the defense. 5) The other side of the prognosis coin: if the defense medical exam has happened, demand a copy of the report before the exam happens, and push the defense to get you the report well before the MSC. That report can help both sides. 6) If you need a key deposition , say of a defendant’s employee, take that depo long enough before the MSC that you have a transcript. Speculating about what a witness might say does not help in negotiations. 7) Very important: meet with your client well before the MSC. Get her prepared for what will happen. Have a well thought out settlement demand, and a strategy for negotiating against the defense. We have seen many instances in which the plaintiff’s counsel and his client are butting heads over the direction of settlement, simply because the attorney didn’t take the time to craft a strategy with his client’s involvement. 8) Talk to defense counsel and try get an offer on the table before the MSC. Tell them LR 5F requires it. 9) It is highly unlikely that the settlement conference officer will be able to read through extensive exhibits. Attached the critical ones to the brief and highlight the relevant portions.  Once you are in the MSC, what do you need to do to succeed? The fact of the matter is that both the defense and the plaintiff usually want to settle the case. And, where parties on both sides of the case have carefully evaluated the case, it is highly likely to settle. While public evaluations may vary widely, in reality, the parties often have similar evaluations. Or at least their evaluations are close enough that trying the case over the difference does not make sense. Most clients are risk averse and don’t really want to go to trial and don’t have any idea what will happen at trial. They will often take less than the case is worth to avoid trial or believe in the concept of “a bird in the hand is worth two in the bush.” Indeed, this concept is very true. Trials are expensive, time consuming and unpredictable. It is not always true that the amount offered at the MSC will still be available thereafter. If you leave the MSC without a settlement and thereafter agree to the amount offered by the defendant, you may be on a slippery slope trying to get the defendant to settle. The more candid you are with the settlement conference officer, the better chance you have of settling your case. Point out the strengths in our case, but also acknowledge the weaknesses in your case. The more credible you are, the more the SCO will tend to rely on your version of events. Nonetheless, be careful about giving the SCO your bottom line too early. Expect to settle for a low amount if you are not ready to try the case. If you are unable to answer important questions about the case at the MSC, the SCO will...

Continue Reading

| Read Time: 4 minutes | Chuck Geerhart Blog

Should your lawyer be your friend

I represent people severely injured in accidents.  My core mission is to get them as much money as possible to help compensate for their loss. But along the way, I develop relationships with my clients.  Sometimes the relationship remains very businesslike– “get my case settled for fair value as fast as possible.”  I try to do this.  Unfortunately, the corporations (insurance and others) who control the money oftentimes do not want a fair or fast settlement.  They would rather hold on to their money while my clients suffer.  My job is to be the enforcer. When I first meet a prospective client and sign him or her up, we are both looking for cordiality– we want to like each other, because we are going to be in a relationship that may least a year or more. In fact, I often decline to represent prospective clients with whom I do not “click”– even if they have a good case.  I want to enjoy representing my clients. I usually make a pre-litigation settlement demand.  To do this, I need to understand my client’s injuries, medical treatment and prognosis so I can demand the right amount. There is a lot of bonding with client in this process. I spend a lot of time learning the client’s records, and talking to the client to understand her pain.  I have to explain that we start with a demand higher than what we will ultimately receive in settlement– that’s just the way negotiation works.  This is the first time I have to be forceful and firm with the client– she cannot come out of this conversation thinking that the amount demanded is what she will receive. Once a case is in litigation, my relationship with the client invariably deepens.  The typical client has never filed a lawsuit, and is somewhat flummoxed by the all the arcane details of litigation, starting with discovery.  I have answered form interrogatories hundreds of times in my career. My clients, no matter how educated, uniformly find them confusing and oppressive.  Here is where my role as professional has to be paramount: I have to insist they do a great job in helping me answer the interrogatories, explaining that these are sworn response that can be used against them in court. I can also empathize (“You’re right, these are really a pain”), but I can’t let them off the hook. Depositions are a stressful time for the client. I always spend as much time as needed in person getting the client ready.  In this process, I may have to deliver some tough truths to the client about how she should be answering questions.  We practice the questions, especially if there is a tough liability area. I run the risk of offending the client, but it is my job to get her ready not to be manipulated by defense counsel.   As the case proceeds, I have a duty to keep the client apprised of what’s happening, both good and bad.  Clients fall in love with their cases.  Lawyers do too. We are the professionals– we sometimes have to break bad news to the client (“Your surgeon is unwilling to say that the accident caused the need for surgery”).  This bad news almost always means less settlement money is available.  Now you are really hitting the client where she lives– she’s been counting on that money!  Maybe for years.  Yes, this is where the client may blur your role – aren’t you her friend? Aren’t you on her side?  Client: “It sounds as if you’re taking the insurance company’s side on this.” I have a response: “One of the reasons you hired me, really the most important reason, is to give you unvarnished professional advice about the value of your claim.  I wouldn’t be doing my job if I didn’t tell you the good and bad about your claim. I need you to trust and respect my many years of experience doing this.”  I find most clients respect this statement. They may not like it, but often it is a turning point in the relationship when a case has reached this stress point. In mediation, where the client must make financial decisions fairly rapidly, the lawyer must be extremely careful not to blur friendship with professionalism. Clients hear a dollar amount offered, like $100,000 and may not realize that from that amount must come attorney’s fees, costs, and medical liens. The client might net only $50,000.  I must run numbers with the client at the mediation to make sure the client has at least a rough approximation of her net. When the net is lower than the client wants (almost always), then I must again be the professional and explain the probable outcome if the case is tried. Yes, you might do better. But you might do worse. And costs and fees will be higher. “Let me run some numbers for you under all scenarios.”  Most clients simply want to feel well-informed about their options. They are strangers in a strange land. It’s all mystifying, and it involves their money. If we can help demystify the process, we are doing precisely what they hired us to do. Throughout, we can also be their friend. I have remained friendly with most of my clients for many years after the representation. Some have become good social friends. I always try to end every engagement on a positive note so they feel they were well-protected in the legal system.

Continue Reading

| Read Time: 5 minutes | Chuck Geerhart Blog

Nuts and Bolts of Liens in a Basic Personal Injury case

1)  When is it a lien? A  lien is a security interest in property. “Lien” is defined as “[a] legal right or interest that a creditor has in another’s property, lasting usu. until a debt or duty that it secures is satisfied.”* (Black’s Law Dict. (9th ed. 2009) p. 1006, col. 1.) A  lien is defined in the Civil Code 2872 as “a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act.”   Behniwal v. Mix (2007) 147 Cal. App. 4th 621, 635 If it is not a lien, it is only a claim for reimbursement.   Don’t use the term lien loosely.   Don’t ever sign any “letters of protection”– the health plan language controls the rights and responsibilities of the insurer and the insured. 2)    Do You Notify the Health Plan and Wake the Sleeping Giant? Advise client that she may have contractual obligation to notify health carrier What to do if claimant shows up after case resolved 3) Situations Where You the Attorney Must Notify the Lienholder (based on statute) a)  Medi-Cal – Welfare and Inst. Code §14124.73(a) b)  Medicare 42 U.S.C. 1395Y (b)(2)(B); 42CFR §§ 411.24(g), (h), and (I) c) Workers Comp:   Employee must notify the employer of the pending settlement in order to allow the employer to assert its statutory reimbursement/lien rights.   Lab. Code § 3860(a) If lawsuit is filed, you must send a copy of the complaint to the employer. Labor Code § 3853 d) SF General Hospital: SF Health Code sec. 124.5: “When any recipient who has been billed for the cost of medical care rendered by the San Francisco Department of Public Health or the San Francisco Fire Department fails to pay in full for such care and asserts an action or claim for damages against a third party or insurance carrier, the recipient’s attorney retained to assert the action or claim shall provide written notice of such action or claim by personal delivery or first-class mail to the Bureau of Delinquent Revenue Collection in the Office of the Treasurer-Tax Collector within 10 days of asserting such action or claim” (Official text available at www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:sanfrancisco_ca) SF County could also pursue a lien under 23004.1 of Govt Code, but that lien is good only against a judgment and not a settlement. See Mares v. Baughman case. 4) Get the Entire Plan The Plan language controls, not the Summary Plan Description (SPD) Prichard v. Metropolitan Life Insurance Company 783 F.3d 1166 (9th Cir. 2015) held that a provision in an ERISA plan’s SPD that was not contained in the formal plan document (insurance certificate) was unenforceable.   Emphasizes the importance of getting both the SPD and the formal plan document in evaluating ERISA liens. Make sure you have the right year– plans change Ask for proof the member signed off on the Plan. 4) Read the Plan Made whole doctrine– when plaintiff not getting full value of the case from the settlement (e.g., policy limits case)– can bar reimbursement claim entirely. Sapiano v. Williamsburg Nat. Ins. Co (1994) 28 Cal.App.4th 533.  Also, if the plan is silent as to “made whole,” there is a presumption that made whole is available to plaintiff.   Progressive West Insurance Co. v. Yolo County Sup. Ct. (2005) 135 Cal.App.4th 263, and Barnes v. Independent Auto Assn. of CA H&B Plan (9th Cir.1995) 64 F.3d 1389. Common fund– pro rata reduction of the claim for fees and costs Does it restrict itself to recoveries from 3rd parties? 7) Why does ERISA matter, or not? ERISA plans are employer sponsored plans (but not governmental entities or church) If it’s an insured plan (not just administered by what looks like an insurance carrier), then it is subject to state law, such as Civ. Code sec. 3040, common fund, made whole etc.  However, the plan language can exempt itself from made whole or common fund. If it’s a self-insured plan, it can be as Draconian as the employer wants it to be.  U.S. Airways v. McCutcheon 133 S.Ct. 1537 (2013)  It can seize the entire settlement.  And UM/UIM payments (unless it restricts itself to recoveries from 3rd parties) 6) Interplay with CC 3040, 3045.1 Civil Code sec. 3045.1– Hospital liens.  Must be served by certified mail (CC 3045.3) Recovery limited to 50% of net proceeds to plaintiff. Civil Code §3040: a)  Capitation reduction (Kaiser) b) Limits recovery 3040 (c) If the enrollee or insured engaged an attorney, then the lien subject to subdivision (a) may not exceed the lesser of the following amounts: (1) The maximum amount determined pursuant to subdivision (a) or (b), whichever is applicable. (2) One-third of the moneys due to the enrollee or insured under any final judgment, compromise, or settlement agreement. 3040(e)– further reduces lien for adjudicated comparative fault 9)   Federal Employees Health Benefits Act (FEHBA) Empire Healthchoice Assurance v McVeigh, 547 US 677 (2006).  Held: No federal jurisdiction for reimbursement claims.  Claim is subject to state law governing reimbursement as long as not inconsistent federal law.  There is nothing spelled out in FEHBA re reimbursement, so if the plan involved is an insured plan, that makes state law and Civil Code sec. 3040 applicable. 10) VA and TriCare (military) Liens “Super lien”– no obligation to reduce, but they will depending on how much the service member is getting 11) SF General Hospital Balance Billing SF General will often attempt to bill for amounts above what the patient’s private health insurance paid.  This is known as “balance billing.”  In Prospect Medical Group, Inc. v. Northridge Emergency Medical Group (2009) 45 Cal.4th 497, the California Supreme Court held that emergency room physicians may not bill service plan members directly for sums that the member’s HMO plan regulated by the Knox-Keen Act has failed to pay for the members’ emergency room treatment. Prospect is not the end of the inquiry, however.  Some policies fall outside the holding of Prospect.  To benefit from the Prospect bar...

Continue Reading

| Read Time: 4 minutes | Chuck Geerhart Blog

Don’t Let Litigation Costs Overwhelm Your Personal Injury Lawsuit

Although something like 97% of all personal injury lawsuits eventually settle short of jury trial, they can nonetheless be very expensive because of the costs of litigation. Most reputable injury lawyers advance costs for the client, but these advanced costs must be re-paid to the lawyer when (and if) the case settles or goes to trial judgment. My typical client trusts me to ensure that costs do not get out of hand, or to tell the client if costs are becoming a problem that could hinder settlement of the case.   I mediate a lot of cases, either as a retained mediator or a court appointed Settlement Conference Officer. I frequently see cases where the costs have become so high they threaten the plaintiff’s ability to settle with any decent net monetary recovery.  How does this happen? As a starting principle, most cases do not involve powerhouse catastrophic injuries (think quadriplegia) where costs almost do not matter because the settlement will be so large.  No, most cases are worth less than $100,000.  Many are worth less than $50K or even $25K (think soft tissue injury cases, like neck or back strains).  Costs can very quickly become a problem, especially since the plaintiff probably has to pay back a medical lien to this healthcare insurer (please see my blog on this site about liens). What are examples of typical litigation costs?  These are some rough figures: Filing the complaint $500 Taking a deposition $500-1000 depending on length and if you videotape Ordering a copy of deposition taken by the other attorney $300 Buying copies of subpoenaed medical and employment records– varies, but can easily hit $3000-5000 in an injury case involving prolonged medical treatment Medical expert: $750 to $1000 per hour Engineering expert: $500/hour Economist: $400/hr. Expert witnesses are far and away the largest cost in a case.  When I hire an engineer to do accident reconstruction, I know I am spending $5000 minimum and likely $10K if the case requires much work up. If I hire a rehabilitation physician to examine my client and write a report, I know I am looking at $10K.  Same for a vocational rehab expert. Depositions can be a large cost, because there can be 20 or more in a large case. But the plaintiff’s main problem is in the smaller case. Let’s assume a case worth about $50,000 with a $10,000 medical lien that can probably be resolved for $6,600. So after the 1/3 attorney fees and the lien, the plaintiff nets about $27,000.  Then there are the costs.  If the case has settled without litigation, the costs should be low, around $1000 or less for medical records. If the case is litigated, count on depositions of the plaintiff ($300 for a copy), the defendant ($500), and ordering some subpoenaed records ($600). If the defense decides to depose doctors, there could easily be another $1000 in deposition costs. If plaintiff’s counsel decides she needs to talk to plaintiff’s doctors before the depositions (which is recommended unless the records show exactly what the doctor’s opinions are), that can be another $1000. The costs of a doctor’s report could be another $1000. If it is disputed liability accident, you might need a liability expert. Add another $5000. Just these costs add up to $9400, and that is a very realistic figure in my experience.  Now the plaintiff only nets about $17,000.   Now imagine the above cost scenario in a $25,000 case with $5000 medical lien repayment. Do the math. You will see that plaintiff nets almost nothing with those costs. How can an injured plaintiff avoid this problem of excessive costs? If your case is worth less than the small claims max of $10,000, consider handling the case yourself. There are no costs in small claims court other than the filing fee of $50. You also won’t pay attorney fees, because there are no attorneys allowed in small claims court. If your case needs an attorney, be sure to choose an experienced lawyer with a proven track record of resolving cases for satisfied clients. Newer lawyers oftentimes have “hung their shingle” and have a nice website,  but have no idea how to keep costs low. They may also not have the kind of monetary reserves to fund a larger case. That’s a big problem, because the insurance company has unlimited funds to battle your case. Corollary point: the insurance carriers don’t care how much they spend to defend the case. They may spend just to protract the case and force you to waste resources. Experienced lawyers will be sure not to let costs get out of hand, and will tell you if there’s a problem. Be wary of firms that want to hire lots of experts early.  Someone has to pay these experts, and it’s you. (Be especially wary of firms that want to refer you to a chiropractor of their choosing. That can turn into a very expensive cost that you will pay eventually.) What you can control is when you settle. If there is a fair settlement offer made halfway through the litigation before costs have gotten too high, that settlement may make more sense than “taking it to the mat” and getting close to trial or actually trying the case. You may net more by settling for a little less than your ideal amount, because your costs will rise as you get close to trial. A word about trial: trials are very expensive, which is one reason few cases get tried. At Paoli & Geerhart, we pride ourselves on being one of the few firms that can actually try a case, and we have the track record to prove it. But be forewarned: your costs will go through the roof at trial. You may be able to recover some of these costs from the defense if you win, but you won’t get them all, especially expert fees unless you have beaten your CCP 998 offer. A physician may charge $5000 to 10,000...

Continue Reading