Oklahoma Injury Lawyer Blog

"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.

It's very common for medical providers to file liens related to personal injury lawsuits. After all, doctors like to get paid for their services. How can you find out if a lien is filed against you in Oklahoma County?
1. Go to Oklahoma County and click on Search Land Records (under Online Services; 6 down on the left side).
2. Read the disclaimer and click "Yes" that you understand that it is for informational purposes only.
3. Click "Registrar of Deeds Public Access" (on the right side)
4. Click "Grantor/Grantee or UnPlatted"
5. Put your name (Last First - without a comma) in the "Grantee" section.
6. Click "Search Now!"
7. If your name is in the search results, click on the box next to it and click "next step."
8. The various liens (hospital/doctor or other) filed should be on the next page.
9. For the detailed information, click on the Document Number.

I spent the last 10 minutes or so online searching for "how much the insurance industry spends on advertising."

It's a common complaint among personal injury lawyers that jurors often have preconceived notions that injury victims are out to just make a quick buck and that the insurance companies would have paid the claim if it was legit. Insurance companies have a huge incentive in paying as little as possible (and are very profitable).

I haven't found a good source yet. But, I stumbled on a New York Times article from 1986. The article mentions that the Insurance Information Institute was starting an "advertising campaign aimed at combating the growing litigious bent." There isn't video on the article, but the 30 second commercials depicted a "world without obstetricians, high school sports or firefighters - a world that high insurance rates caused." The campaign started as a $6.5 million advertising effort.

Yesterday's Journal Record reported that:

The Oklahoma Senate gave final approval on Tuesday to House Joint Resolution 1041, referring the issue to the general election ballot in 2010. The vote was 26-22, with all 22 Democrats opposing the plan.

Oklahomans will now vote on whether appointed Oklahoma Workers' Compensations Court judges will require Senate confirmation. 

The Oklahoma House of Representatives passed a resolution yesterday that will ask voters to require Senate confirmation of Oklahoma Workers' Compensation Court judges.  The Journal Record reports:

The House voted 60-37 for the bill and sent it to the Senate for final consideration in spite of opponents who said it would replace Oklahoma's nonpartisan appointment process with the gridlocked, highly politicized process of Washington, D.C., where partisan disputes in the U.S. Senate often delay judicial appointments.

Currently, state district court judges are directly elected, and civil and criminal appeals court judges and Supreme Court justices appear on a retention ballot at the end of their appointed term. But workers' comp judges are appointed by the governor and never appear on a ballot.

The article also mentions that similar legislation was vetoed last month by our governor. 

Today's Journal Record reports that the Oklahoma Legislature has reached a compromise with a new civil justice bill.  The bill mainly affects Oklahoma personal injury and medical malpractice lawsuits. 

Some of the changes:

• Noneconomic damages are capped at $400,000 unless willful misconduct is proven in court.  (There was a push for a "hard" cap of $300,000 which could not be removed).
• In cases where the judge and jury decide that noneconomic damages in excess of $400,000 are warranted, the additional money would be provided by a state-created indemnity fund. This begs the question: who's funding the additional damages?
  
• Concerning "bad actors" in the medical community - The bill prevents information from peer review proceedings from being discovered by a plaintiff in a lawsuit except in very limited circumstances.
• Class actions: Republicans dropped their attempt to make all parties to a class-action lawsuit opt in to participate.  The civil justice bill sets specific guidelines for certifying a class and for determining attorney fees.
• The "certificate of merit" requirement is back for professional liability cases.  The previous certificate of merit requirement only applied to medical malpractice cases (and was thus unconstitutional).  This requirement now applies to other professionals.
• Joint and several responsibility: Allows a defendant who is more than 50 percent at fault to pay an additional portion of the damages.

Ross Jurewitz, a personal injury lawyer in San Diego recently posted some commentary on the efforts made to change our civil justice system.  His article is titled "Oklahoma Tort Reform: An Unfounded and Misquided Attack on Injury Accident Victims."

One of Mr. Jurewitz's main points is that capping plaintiff's attorneys fees will prevent medical malpractice or personal injury victims their day in court.  "I can personally tell you that the proposed cap would make it nearly impossible, if not completely impossible for some people with legitimate injury accident claims to find an attorney."  His rationale is based on the fact that a lot of contingency fee clients choose that type of fee because an hourly rate is often unaffordable - something insurance companies can afford. 

Another good point: "A contingency fee spreads the risk of failure from the client alone to both the client and his attorney."  Plaintiff's attorneys, trial lawyers, personal injury lawyers (whatever you want to call us) only get paid when the client does.  

The Seattle Times ran a story today detailing the Oklahoma Bar Association's response to the recent attacks/proposed changes to our civil justice system.  The proposed changes would limit damages available to Oklahoma personal injury and medical malpractice victims. 

Our OBA president's take on the proposed legislation:

"I call upon the Legislature to produce facts -- not myths or urban legends -- but proof of the necessity of the measures that have been introduced."

"Some of the supporters of this legislation know that Oklahoma does not have a tort crisis."

"Like they say where I'm from: 'That dog don't hunt."

The article also cites a survey of Oklahoma trial judges that found that 90 percent of judges believed there was no litigation crisis requiring legislative changes.  The survey also found that there was no severe problem in Oklahoma with frivolous lawsuits. 

Some Oklahoma injury cases can be lost because basic steps, like going to your doctor shortly after the accident, are not taken.  However, the most important thing an Oklahoma plaintiff can do is tell the truth.  Lying about the facts of your case, or your injuries, can take a solid case to one that is murky at best. 

Honesty throughout all stages of the case is much more important than the lawyer you choose to handle your case.  Honesty is not only limited to once a lawsuit is filed though.  Being truthful in all actions of your case includes the first visit to your doctor (or ER room) after the initial accident.  Tell your doctor everything related to the injury without exaggerating and be sure to include any previous injuries.  Under no circumstances lie to your doctor, the opposing insurance adjuster/attorney, or your own lawyer.  It will come back to bite you.  A jury that views a plaintiff as dishonest has little reason to believe the full extent of the injuries claimed by that party. 

Last week's Oklahoman ran the story, "Against tough odds, Oklahoma seeks uninsured solution."  It details the account of an Oklahoma woman who was injured by an uninsured driver.  She still suffers from the medical bills and scars left from the car accident. The article also includes some startling statistics:

"A study released in January by the Insurance Research Council ranked Oklahoma as the fourth-worst state in the nation for uninsured motorists."

About one in four Oklahoma state drivers don't have insurance.

The article mentions that measures are being discussed to help solve the problem, and that Rep. Faught of Muskogee is introducing a bill to help address this issue.  The bill limits the awards given to uninsured motorists involved in traffic accidents.  The uninsured accident victims would be limited to property and medical loss reimbursements and excluded from pain and suffering damages. 

I doubt this would have any positive influence on uninsured drivers though. 


So what can you do if you are in a car accident with an uninsured motorist (who was at fault)?

Call the Oklahoma Department of Public Safety Financial Responsibility Division at 425-2098 and fill out the Oklahoma Motor Vehicle Collision Report.  The DPS can suspend the uninsured's driver's license. 

I didn't realize the bullying that goes on with insurance companies until I started handling Oklahoma personal injury cases.  We'll have several people call in to our office each week asking "why is the insurance company refusing to pay anything on my car (or medical treatment) when their insured was the one who caused the accident?" 

The American Association of Justice has a photo along the same lines as the Allstate "good hands" approach: 

DFW's Star-Telegram reported yesterday that the personal injury law firm, Trey Allen, P.C., was placed on probation and ordered to pay close to a million dollars in restitution for its part in scheming to stage car accidents.  The paper got its information from the U.S. Attorney's office. 

This seems like something that would be dreamed up and reported at The Onion.  Maybe I'm naive, but it just seems astounding that someone would even try to do this.  Hopefully, the Department of Justice will stick the people involved. 

I did a little research on the story.  The USDOJ, back in September, released a more detailed report at their website.  See: Law Firm Admits Role In Staged Accident Scheme.  It doesn't appear the attorneys were actually invovled:

According to the Trey Allen, P.C. factual resume, both legal assistants informed the government that they did not disclose their fraudulent activities to the officers of Trey Allen, P.C. They admitted, however, they had an arrangement with numerous chiropractors in the Dallas/Fort Worth (DFW) area in which they would refer business to the chiropractors and, in return, the chiropractors would pay the legal assistants a cash kickback out of the settlement proceeds. The cash kickback was 30% - 40% of the amount paid to the coconspirator chiropractors by Trey Allen, P.C., which resulted in inflated medical bills being presented to the insurance companies.

Generally the first question a personal injury client asks us concerns damages.  Something along the lines of: "what does my recovery and compensation consist of?"  After that, the question is usually, "well, what's next?"

    The General Steps in a Personal Injury Case:

1.    After treatment is complete; make settlement demand on insurance company.
2.    Filing of lawsuit (Petition) if unable to settle.
3.    Service of summons on defendant (private process server or by certified mail).
4.    Defendant has twenty (20) days to file an Answer or Entry of Appearance (may reserve another twenty days to file Answer).
5.    Discovery (fact finding process):
    a.    Interrogatories (thirty days to answer);
    b.    Request for Admissions;
    c.    Request for Production of Documents;
    d.    Depositions (usually after interrogatories and request for production of documents).  Sworn statement before a court reporter.
    e.    Medical examination of Plaintiff by Defendant's doctor;
6.    Motion to Enter (tell judge to set scheduling deadlines).
7.    Mediation (court ordered settlement meeting).
8.    Pretrial conference (meet with judge after ready for trial).
9.    Trial
10.    Appeal
11.    Settlement discussion may occur at any stage.  Over 90% of the cases settle before a trial is conducted.
12.    The trial process, excluding appeal, averages approximately nine (9) months in Oklahoma County from the date of filing the lawsuit to the date of trial.

I heard this on NPR today on my way to the office: 

Nearly a million children worldwide die every year as a result of unintentional injuries, and the biggest killer is traffic accidents, according to a report from the World Health Organization.

This is startling.  The nearly 4 minute radio piece also included the top five causes of unintentional injury:

1. Road crashes: 260,000 children a year are killed and 10 million are injured. This is the leading cause of death among 10 to 19 year-olds.

2. Drowning: 175,000 killed a year while up to 3 million children survive each year.  But due to the brain damage invovled in some of the surviviors, nonfatal drowning has the highest average lifetime health and economic impact of any type of injury.
 
3. Burns: Burns kill nearly 96,000 children a year.
  
4. Falls: Nearly 47,000 children die due to falls each year.
  
5. Poisoning: Over 45,000 children die each year from unintended poisoning.

Insurance companies and their lawyers use a variety of tactics to deny and limit recovery to personal injury victims.  Here two examples:
1)  Comparative Negligence - This is where the defendant places part, or all, of the blame for the injury on the injured.  Basically, the rule in Oklahoma is that a plaintiff may not recover if his/her negligence is greater than the negligence of the defendant(s). 
The exact language in the Oklahoma Statutes is:

In all actions hereafter brought, whether arising before or after the effective date of this act, for negligence resulting in personal injuries or wrongful death, or injury to property, contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage. [Emphasis added]. See:  12 O.S. § 13

2)  Assumption of Risk - This can bar recovery for the plaintiff.  This occurs when the plaintiff has expressly or impliedly assumed the risk.  Risky activities are generally associated with this.