Oklahoma Injury Lawyer Blog

Instead of trying to just explain the math behind an accident settlement, I've included an actual Settlement Sheet. See:

SETTLEMENT SHEET.pdf

This from a relatively minor car accident case I settled a few weeks ago. Obviously, I've taken out our client's name (I'll call her Client) and the defendant's name. The dates are also different than the actual case.

Here's a quick summary:
The property damage claim was settled shortly after the accident. Our firm didn't charge anything for the property damage settlement, so that check went directly to Client.

The personal injury claim settled for $12,500. All insurance companies require claimants to sign a settlement release before they'll write a check. The total settlement check was made out to Client, all the medical providers that had outstanding bills, and Medicare. Medicare had paid for some of Client's bills, so they wanted to be reimbursed ("right of subrogation").

As you can see, the attorney's contingency fee in this case was 25%. This amount is taken out of the total settlement. We spent $63.19 obtaining the medical records. This was what the various hospitals charged for them. Client have several outstanding medical bills that totaled $630 and Medicare wanted to be reimbursed $1,399.65. The payment to Client, after everything was paid off, was $7,282.16.

I met with a new client (let's call her Jane Smith) last week that mentioned the insurance adjuster on her claim told her that "she doesn't want to get an attorney involved because your claim will likely take longer and you'll have to pay the attorney out of your settlement."  That just means the insurance adjuster didn't want Jane to hire an attorney.  The insurance adjuster is looking to pay Jane as little as possible - settling early for cheap saves the insurance company money. 

I've seen several personal attorney websites state something along the lines of: "a national study showed that injured people represented by an attorney received 300% more than persons who settle without a lawyer."  None of the websites that have this actually provide a cite to the study.  So, I posted the quote on a national trial lawyer discussion group to see if anyone has actually seen the study. 

Hat-tip to Solomon Neuhardt, a Montana car accident attorney, for pointing out what appears to be the study.  At the very least, it's a study discussing represented and unrepresented claimants.  The "Allstate's 'customer service' charade" article was written by David Strickland and appeared in Trial Magazine in 1999. 

The article mentions a study by the Insurance Research Council:

The study found that payments for unrepresented
claimants with bodily injuries amounted to $3,262 on average. Payments
to represented claimants amounted to $11,939 on average.

That's 366%!  Assuming the attorney's fees in those claims were 33%, the clients still recovered $4737 more than what they would have recovered.

Here's one I haven't heard in awhile:

I was in a car accident last week.  The driver that hit me doesn't have insurance.  However, the guy he recently bought the car from still has the car insured!

Can I sue the previous owner to help get my medical bills paid?  His insurance company is denying my claim.  Can they do this?

I have uninsured motorist coverage, should I just turn it in to my insurance company and be done with it?

The previous owner doesn't have an "insurable interest" in the car.  Insurable insurance is usually mentioned if someone is trying to purchase life insurance on someone other than themself.  You generally can't do it (there's exceptions of course).  Back to the car accident: The previous owner isn't liable and his insurance company is correct.  Luckily this person has Uninsured Motorist (UM) Coverage. 

Jim Calloway, the Director of the Oklahoma Bar Association Management Assistance Program, has a nice article on "Why you need to switch to digital client files now."

Jim states that "every single lawyer needs to commit to using digital files."  He also mentions, and goes into detail, that:

·         You cannot back up paper

·         You are becoming increasingly less competitive

·         You are wasting time looking through files and looking for lost files

·         You are spending too much time and money converting digital documents into paper

·         You are missing the opportunity to become more affordable

·         You are blocked from having access to your files when you may need them

·         You project an image of being behind the times

We’re transitioning to a completely digital office for several reasons.  The most important one: we’ll provide better (and faster!) service to our clients. 

Medical providers will generally file a lien to protect their claim in a car accident (or other personal injury) case.  If a lien is filed, an insurance company paying a personal injury settlement must include any lienholders on the settlement check, or issue separate checks for the liens. 

How can you find out if you have a lien filed against you in Cleveland County?

Check out the Cleveland County Clerk's Index Search.  Click on "Index Search" on the left hand side of the page.  You'll need to click "Accept" after reading through the disclaimer.  Type in your name. 

We launched a new website today: Oklahoma City Car Accident Lawyer micro-site.  It's limited to car accidents and related issues.

Quick answer: contact your insurance company.  Their attorneys will be able to handle the claim and any potential lawsuit.  You should also contact your insurance company shortly after an auto accident.

I was just reviewing my "Closed Files" list.  Nearly all the cases ended with some type of settlement.  A few of the cases were taken on and after "working the file" were closed after it was determined a favorable result could not be obtained for our client(s). 

One particular file from last month still irks me a little: Our firm spent several thousand dollars just to find out if it was in fact a viable medical malpractice case.  I like to say to my clients with a tough medical malpractice case: "well, after I do my homework, I'll know if you have a winnable case."  Other lawyers call this due diligence.  Remember that just because something went medically wrong, a doctor was not necessarily at fault.  Even if the doctor was at fault though, the plaintiff must prove that the standard of care was breached. 

On this particular case we spent a little over $400 obtaining the medical records (hospitals rightfully charge for copies).  We also paid a doctor about $2500 to review the records and give us her opinion of the case.  Like this client's case, most of our cases are on a contingency fee basis.  We only get paid if we get a favorable settlement or verdict (and can collect) in a case.  The court costs, expert expenses, etc. are deducted out of the settlement/verdict.  

In this case: we couldn't obtain a favorable result so our attorney's fee (how much our firm was paid) was technically -$3000.  The moral of the story: it's better to learn upfront about a case, and spend $3000 on a good doctor/expert, than to spend ten times that (and a few years of work) on a case that only gets the clients hopes up, and walk away with no recovery.

I just received an email with the question, "can you receive double medical coverage if you're in an auto accident?"

Here's my email reply:

I'm not sure what you mean exactly by "double medical coverage," but I'm assuming your question is along the lines of:

I was injured in a car accident that was not my fault. My health insurance paid for all my medical bills, so can I keep the whole settlement I get from the other driver's insurance company?

Short answer: Probably not. You may be able to get double recovery if you have 'medical payments coverage' under your own car insurance company. If you are a named insured, medical payments coverage is not subject to subrogation. Otherwise, if you don't have medical payments coverage, then generally you cannot get 'double recovery,' unless the health insurance company does not have a subrogation provision. Insurances companies often have what's called "a right to subrogation." This simply means that they have a right to be reimbursed for what they pay (when someone else is at fault). Note that your insurance company only has a right to be reimbursed for the medical bills. So, they shouldn't "touch" any recovery you get for lost income or pain and suffering. Here are a few examples:

The Cars Blog on ConsumerReports.org has an excellent video and article on How to stop a runaway car: Don't pump the brakes.

The video, with Jake Fisher driving a Toyota Venza and a Volkswagen Jetta, simulates what happens when a car has sudden runaway acceleration. Mr. Fisher mentions some "do's and don'ts":

Don't:
1) Don't pump your brakes. This will cause your power brakes to go out.
2) Don't try to turn off your car. You risk locking up your steering wheel.

Do:
1) Put your foot on the brake hard, and continue pressing it.
2) Put your car in neutral
3) Once stopped, turn off your car.

Mr. Fisher also recommends first trying the braking procedure in an empty parking lot or other safe location. The Volkswagen Jetta is interesting because it can actually override the gas pedal.

Here's the video:

Today's Oklahoman has some startling statistics:

Nearly one in four (24 percent) Oklahoma motorists drove without insurance during the period of 2005 to 2007, the council's study estimated. Only three states had worse rates: New Mexico (29 percent), Mississippi (28 percent), and Alabama (26 percent).

The article mentions that our state's current percentage of uninsured drivers may be even higher.

So what can you do to protect yourself against a deadbeat driver? Make sure you have uninsured motorists on your car insurance policy.

"My back was killing me for over 3 months. Why isn't my case worth more?"

I had a client recently ask this. For simplicity's sake, I'll call him Bob. Bob was rear ended last year and was rushed to the hospital immediately after a car accident.

The seat he was in snapped back and Bob thought that he had been knocked out. His neck and back were both hurting quite a bit. The emergency room ran up a pretty good bill because they did a CT scan (Bob thought he had a concussion and was dazed; "So, they scanned my cat.").

Bob checked out of the ER with soft tissue injuries, some prescriptions for a muscle relaxer, and some pain medicine. He was also instructed to go to a follow up doctor if he was still having neck and back pain.

After missing work for a few days, Bob decided he could "tough it out," and went back to work. This is great, but his neck and back still gave him trouble. He was in a lot of pain at work and around the house. Two months later, Bob's back is still bothering him. He's tough though, so he doesn't bother to go to a doctor.

Bob called me about six months after the accident. His neck and back had finally healed and he was curious as to why the insurance company hadn't called him and offered to settle his personal injury claim.

The case has since settled for a reasonable amount. At the time though, Bob was a little frustrated because he wasn't able to get compensated for any pain and suffering for the 3 months that his back was bothering.

So, moral of the story: Go to a doctor if you are hurt. An insurance company, understandably looks at personal injury victim's medical records for proof of an injury.

One of the recent changes to our tort system is that, to file a medical malpractice case, an expert affidavit has to be attached to the Petition. The attorney must attest that:

1) Plaintiff has consulted with a qualified expert
2) Plaintiff has obtained a written opinion from the expert and that the expert believes that a reasonable interpretation of the factors supports a finding of professional negligence
3) Based on the consultation with the expert, plaintiff believes the claim is meritorious and based on good cause.

The law goes into effect November 1, 2009.
Here's the full statute: 12 O.S. § 19 . Professional Negligence Action - Expert Opinion Affidavit Requirements - Exemption

This is good news for Oklahoma attorneys:

Court filings from each of the state's 77 counties will be available to the public online for free in the next three years under a plan being pursued by the Oklahoma Supreme Court.
The court has signed a $1 million contract with a Duncan company to prepare electronic court records from 64 counties to merge into one publicly available online system, Chief Justice James Edmondson said Wednesday.
"It's time to get in gear with a 77-county, integrated system," Edmondson said. "So we'll have one system that's state of the art and a uniform case management system for the entire state."
The new system should be operational by summer 2012, if funding is available, he said.

So, if funding is available, this will be really convenient. What I'd really like: allow us to file electronically like we can in federal court.

Currently, filings are available on The Oklahoma Supreme Courts Network Dockets Page. It's really hit or miss if the documents are accessible online though.

Our filing fees may get a little less costly. The Journal Record reports:

Oklahoma City attorney Jerry Fent filed a lawsuit questioning the constitutionality of only three fees: one that goes toward child abuse services administered by the Department of Human Services, an adoption fee with revenue that funds a voluntary registry and a fee that funds the state attorney general's Victim Services Unit.