Total Injury

Let the following be a lesson to those who, like many of us, have employee health insurance through their employers.  If you seek compensation in a personal injury case, as is your right, you may have to reimburse the insurance company if they covered any of your medical bills after the personal injury, under a common process called "subrogation."

The point of subrogation is to avoid having medical bills paid for twice, once by the insurance company, and then by a defendant who is ordered to pay for medical bills as part of a verdict or settlement of a personal injury case.  However, in practice, it can seem like another way for a personal injury victim to be victimized, this time by their insurance company.

As the Wall Street Journal reports, 52-year-old Deborah Shank was involved in a semi tractor trailer accident seven years ago, which left her with permanent brain damage and confined to a wheelchair.  As part of a settlement with the trucking company, she and her husband received $700,000 to pay for her medical care.

At the time of the accident, Shank was an employee of Walmart, and received their healthcare coverage for medical expenses following the accident.  Whether she knew it or not, a subrogation clause was part of her Walmart health insurance, and after paying out $470,000 for medical coverage, the insurance company aimed to get back the money.

After legal fees and other expenses, the Shanks were left with $417,000, which they set up in a medical expenses fund.  However, Walmart sued them for the money, and though they appealed an initial verdict in Walmart's favor, the Shanks eventually lost the case as well as the money.

What makes it particularly difficult for them is that the money left over from the settlement would not have been enough to pay her medical costs in the first place.  Thus, rather than fairly paying back money for medical expenses that Walmart covered, in their case it was closer to being taken for all they had by Walmart's insurance plan.

Walmart, of course, was perfectly within its legal right, and pursued subrogation to restore funds back to its insurance coverage for the entire employee pool.  However, in this case, the fine print made the Shanks feel more betrayed than compensated when they won their personal injury case.

The Seattle Post-Intelligencer ran a story this week about a Washington woman whose story, though more dramatic than many, may be representative of a much more common practice in the insurance industry.

Tara Sadler sustained a serious injury in a minor car accident:  although the vehicles never made contact, her head snapped back, leading to a compressed spinal cord.  Her doctors said she needed surgery immediately, but State Farm, the insurance carrier, said no--they wanted their own doctor to determine whether the surgery was necessary.  That might not be unreasonable, but the fact that they scheduled the appointment for more than a month in the future, knowing that Sadler's doctors considered the surgery urgent, certainly was.

In the end, State Farm's doctors decided that the surgery was necessary, and the company made payment, but only after Sadler's condition had deteriorated to the point that she now uses a wheelchair to get around and has lost much of the use of her right arm and leg permanantly.

The Injury Site blog appears to be very active, but in fact, nobody is really writing the Injury Site blog (injurysite dot com) at all. 

Instead, the entire contents of the Injury Site blog have been scraped from the Total Injury Blog. 

Total Injury has a staff of writers, designers, and developers, including several attorney writers and researchers.  The Injury Site apparently has no such thing, because this blogger has been unable to find a single post on the Injury Site blog that didn’t appear on the Total Injury blog first.  If you’re reading this post on the Injury Site blog, it’s a safe bet that no one at the Injury Site is even READING the blog—otherwise, they’d surely have prevented this post from appearing.

If you’re reading this post on Total Injury, thanks for visiting, and we apologize for the interruption.  We’ll have more timely personal injury news and commentary for you later today.

Hospital burn units treat 2000 patients with work-related electrical burn injuries every year.  Many of these same patients will not be able to go back to their same jobs if the electrical burns caused a disabling personal injury. 

Workers' compensation may not cover all the lost wages related to a personal injury accident.  It is also common for an employer's insurance company to offer a personal injury settlement that does not include future medical expenses.

In order to receive reasonable reimbursement for a personal injury, an electrical burn victim may need to hire a personal injury attorney to file a suit against the responsible parties.

After 14 years off the market, silicone breast implants are now available for women aged 22 or older as well as those undergoing reconstructive breast surgery.  The FDA declared silicone-gel implants reasonably safe and effective allowing two California companies to produce and sell the implants.  As a condition of the FDA approval, Allergan Inc. and Mentor Corporation are required to study leaks on women who already have the implants as well begin a new study on 40,000 other women receiving the silicone implants.

The FDA originally placed the ban on the silicone implants in 1992 when huge numbers of women complained that the implants leaked causing severe pain and infection.  In 1995, implant manufacturer Dow Corning was named in 19,000 personal injury lawsuits alleging the implants were defective.  Dow was forced into bankruptcy and later emerged from it after setting up a $2.35 billion fund to settle the personal injury claims.

Approximately 291,000 women received breast implants last year made out of materials other than silicone.  Tens of thousands of women were waiting for the silicone implants to come back on the market.  The women who will receive the newly approved silicone breast implants are required to undergo regular MRI test to check for leaks.  Opponents say the implants are still defective products and should not be on the market. 

American Family Mutual Insurance failed to offer Michael Whitehead enhanced personal injury coverage with his last automobile insurance policy renewal before he broke his neck in a automobile rollover accident.  A Denver, Colorado jury found the insurance company liable for not offering Mr. Whitehead optional no-fault personal injury coverage as required by state law. 

The award consists of $1 million for punitive damages and $250,000 for pain and suffering.  The automobile accident left Michael Whitehead paralyzed and he is expected to need expensive medical care long into the future.  American Family is also ordered to pay an estimated $250,000 for medical expenses and interest.

Many other drivers have filed lawsuits with Colorado personal injury attorneys against American and other insurance companies for the same type of negligence.

Michigan's chief Insurance Regulator stepped in last week to prohibit insurance companies from inserting a clause in their contracts that would limit an insured's ability to make underinsured motorist claims under their own vehicle insurance policies. Earlier this year, Michigan took similar steps regarding uninsured motorist coverage.

Some insurance companies had sought to include a contract provision requiring such claims to be filed with the insurance company within six months of the accident. Michigan has now precluded any limitation that would reduce the period for filing below the three year statute of limitations in tort cases.

Not all states have taken action to prevent against this kind of contractual modification, though, so make sure that you understand the terms of your insurance policy clearly--and when you're considering new coverage, ask the company how long you have to file uninsured/underinsured motorist claims.

Florida Governor Jeb Bush has indicated that he may veto the bill passed by the legislature to extend Florida's no-fault automobile insurance personal injury protections.

Florida law currently provides for no-fault personal injury protection, which benefits personal injury victims by getting medical bills and other related expenses paid without necessity of a determination of fault in an automobile accident.

The law is set to "sunset" in October, 2007 if lawmakers don't take action to extend it. But insurance companies have been lobbying hard to persuade lawmakers to let the provisions die. The legislature passed a bill extending the statute for an additional two years to allow opposing forces to hammer out a compromise, but Bush says that he may veto the bill, which would mean that Florida residents would lose their no fault protection next year unless a resolution is reached before then.

According to the National Insurance Crime Bureau, the top ten cities in the United States for staged accident claims--claims where the accident itself was manufactured purely to seek compensation from an insurance company or property owner--are:

1. Miami
2. Los Angeles
3. Houston
4. Chicago
5. Philadelphia
6. Tampa
7. Cleveland
8. Orlando
9. New York
10. Boston

That means that plaintiffs working with insurance companies in those areas may be greeted with a greater degree of skepticism and more thorough investigation of claims than they might in areas where fraud is less common--and both of those things can mean delays.

Delays work to the advantage of the insurance company: recollections fade, evidence may be misplaced, the need to pay medical and other bills create pressure on the claimant to settle for less. Discuss these issues with your personal injury lawyer before making any decisions about your cased based simply on the need to finalize your case and get bills paid--that pressure may be exactly what the insurance company is banking on.

Insurance companies are lobbying state legislatures across the country to limit liability in civil litigation, to eliminate mandatory no-fault insurance, even to restructure jurisdiction of civil cases to move litigation to areas with traditionally lower jury verdicts.

Those activities provide a far more realistic picture of the goals and priorities of an insurance company than does the friendly voice on your telephone after you've been injured in an accident. When a representative of the insurance company contacts you, she'll be looking to do some very specific things:

* Get you talking about your injury (possibly "off the record") and lead you into making statements that can later be used to deny or minimize your claim;

* Convince you that your claim isn't worth as much as it might be, and that you're better off to settle quickly without talking to a lawyer;

* Get your signature on a settlement agreement before you have the opportunity to find out the full extent of your injuries, medical bills, and lost work time.