Managing Client Expectations in an Injury Case

A client is similar to a screenwriter. They have fantastical ideas, which turn into grandeur images in their head. Most of those ideas involve unrealistic expectations as to what the true value of their case is. For some reason they believe that an accident claim is a ticket to retirement. Most often, it is not.

Managing client expectations is not only important for the client, it is important for the attorney. For one, an attorney should never create a false impression. Controlling the narrative of what to expect will help an attorney remain disciplined in how he or she communicates with clients. Two, relationships are the foundation of a good law practice. One relies on referrals to survive. A happy client, which means a client who is not surprised with a result of a case, will refer family and friends in the future.

Communicating to the client about the value of his or her case can be difficult. Case value is subjective. That is why claims are fought over in litigation. As one may guess, the defense will value the case less than the plaintiff, and vice versa.

But evaluating a case can also hinge on objective factors. Any case has value when there are damages that can be proven. Damages can be shown via medical bills, lost earnings, etc. A bigger case may involve more medical bills because the accident required significant treatment. For example, if a plaintiff broke both legs, he or she will have higher medical bills than a person who only suffered whiplash (although many whiplash clients experience horrible nerve pain, which affects them for a lifetime). Indeed, the plaintiff with broken legs may not be able to work, while the whiplash plaintiff may continue on with work the very next day after the accident. Under the law, a plaintiff is compensated for those medical bills incurred and the earnings lost because of injury.

Other factors go into determining the value of a case. The reliability of the client will go a long way. Remember that the point of litigation is that both parties are satisfied with the case going to trial by jury. Each side is preparing for a jury trial, meaning that they are organizing when witnesses will testify, and what they will testify to. A client who comes across well-liked, truthful, sympathetic, and aggrieved will increase the value of a case. An attorney does not want a client who will testify poorly in front of a jury.

Putting all of the pieces together and telling a client what a case should settle for remains a risk. The judgment, or arbitration award, or agreed mediation proposal, could be lower than what was communicated. That is why an attorney should give a range, beginning with the worst case scenario (we could lose!) to the best case scenario (the best case scenario should be lower than what you actually think the best case scenario is). More importantly, the attorney should clearly communicate that it is an experienced guess but not a guaranteed opinion. Nothing in personal injury law is guaranteed. If someone tells you different, I would speak with someone else.

Always consult with an experienced injury attorney after an accident. An attorney should not only manage expectations, they should give you, or a loved one, peace of mind.

Caps on damage awards hurt patients

In July of 2010, six-week old Mia Chavez was taken to an L.A. emergency room with a worsening cough. Her doctor, believing that the cough was a symptom of the common cold, sent Mia home with antibiotics. A week later the infant died during her second visit to the ER; the cause, pertussis, a flu-like strain of whooping cough on the rise in L.A. County. Public health officials had previously circulated warnings about the illness, warnings of which Mia’s doctors were well aware. Tragically, none of the simple tests for whooping cough were run and the antibiotics which were prescribed probably decreased the tiny infant’s capacity to fight the disease on her own.

In January of 2009, 17 year old Olivia Cull walked up the steps of Mattel Children's Hospital UCLA in Westwood for a routine heart catheterization, the last in a long line of procedures designed to correct a minor birth defect. Olivia, a top student already admitted to Smith College, never left the hospital. An intern, unlicensed to practice medicine at UCLA, removed Olivia’s heart catheter without supervision and Olivia slipped into a coma. A few days later while parents Robert and Joyce Cull struggled with the decision to terminate life support, Olivia’s 11 year old sister crawled into the hospital bed with her; a nurse sobbed in the corner.

The thread that ties these tragic stories together does not end with the malpractice that caused their deaths, but extends to the gross undervaluation of their lives under current California law. The girls were each subject to the inequities created by a California which was passed in 1975 in an attempt at insurance reform. The law, known as the Medical Injury Compensation Reform Act (MICRA – Cal. Civ. Code 3333.2), limits non-economic damages in medical malpractice suits to $250,000 – the legally imposed value of a child’s life in cases of doctor negligence.

Manufactured insurance scare

Enacted in the face of a now discredited insurance industry panic about the rapidly rising costs of malpractice insurance, MICRA was proposed as a an ineffective solution to a problem that did not exist. In the 12 years that followed the passage of the law, insurance rates for malpractice skyrocketed an astounding 190%, stopped only by the much more sensible passage of proposition 103 in 1988 which brought malpractice rates under the regulation of the California Department of Insurance. Despite the scandal surrounding MICRA it has continued unchanged for almost 40 years, never once adjusted for inflation; a flaw which has reduced the economic impact of the $250,000 cap by about 75% over the last three decades.

An abject failure

While targeted at ballooning malpractice insurance premiums, MICRA has done nothing to help the doctors who often fight for it, but has instead served to line the pockets of California’s malpractice insurance providers. Under California law, insurance companies are required to maintain a reserve fund for use in paying future claims. Medical malpractice carriers in the State, however, have used increasing profits to build up enormous reserves despite the fact that they routinely over-estimate future claims. Each of the three largest carriers in the state have, at least once over the course of the last ten years, carried a reserve account as much as 10 times larger than the required amount. In fact, despite their claims about the growing costs of medical malpractice suits, California carriers pay out an average of only 25% of their gross receipts to such claims, holding the rest for lawyer’s fees, administrative costs, and profits.

National efforts

Despite the complete failure of MICRA to reduce insurance rates in California, and the tragic consequences disproportionately dealt to the poor, unemployed, elderly, and children, proponents of such caps have taken the fight nationwide. After MICRA, 23 states enacted some sort of pain and suffering damages cap and bills have recently circled in Washington that would impose a similar Federal cap, ostensibly as part of the national effort to reduce healthcare costs. Ironically, many of the proponents of such a cap themselves earn more per year then they allow for a lifetime of patient pain and suffering.

Doctors’ groups such as the AMA and the American College of Obstetrics and Gynecologists have been vocal supporters of caps on a patients legal rights while simultaneously opposing similar caps on their own ability to sue health insurance companies for unfair practices; a conflict only recently recognized by the AMA when it chose to drop efforts to advocate against caps on insurance company lawsuits, instead focusing exclusively on limiting patient lawsuits nationally.

Bottom line

Olivia’s and Mia’s heartbreaking stories are not isolated incidents. Medical malpractice is a growing problem which kills as many as 390,000 people annually, making it the most deadly national health concern after heart disease and cancer. Yet many victims are unable to even find a lawyer capable of shouldering the substantial costs associated with the complex legal proceedings surrounding medical malpractice cases; costs which can routinely run over $100,000 not counting legal fees.

It is time to revisit MICRA in California to ensure that patients, not insurance companies’ profits, are protected under the law.

Private Settlements Are a Big Risk

If you are the victim of a car accident and are wondering whether you should accept the other party’s offer to settle privately, without involving the insurances companies, you might turn to Google for advice. Unfortunately, many of the results that turn up are user comments on non-legal forums where non-attorneys attempt to explain the complications of a vehicle collision. Despite this dearth of expert advice, many people keep trying, driven by a fear that their insurance rates will be raised if they report the accident to the authorities.

While private settlements might seem like a convenient way to avoid the potential hassles of dealing with insurance adjusters and claims processors, these types of arrangements are almost always a bad idea; at least without some input from an experienced attorney. There are just too many potential complications of which many people may be unaware. The following are some examples of the types of problems you might encounter during a private settlement attempt.

Who’s at fault?

California follows what is known as the Pure Comparative Fault Rule. Under our system an accident victim can file a lawsuit against the person at fault, even if the victim partially caused the accident. For example, let’s say you're in a car accident with another driver. At trial the jury determines that you were 10% at fault for the accident and that your total damages are $100,000. Under California law, you’ll be able to collect 90% of those damages from the other party; or $90,000. Of course, you may also have to pay them for the 10% of damages you caused them.

The situation gets dramatically more complex in cases where the plaintiff is more than 50% at fault. Without qualified legal advice, you may not know for sure who is legally responsible for your injuries or for how much each party will ultimately be liable. Trying to guess can be costly.

Damage calculations

Estimating exactly what a settlement is worth, poses a challenge even for experienced attorneys. Questions abound, such as: will the injuries create a permanent disability, have the full extent of the injuries been discovered, and how lost wages or other income should, be calculated.  There is a lot to consider, and this list barely scratches the surface. Without expert advice, your estimate of the damages or injuries might be way off the mark. Ultimately this means that you may be accepting an offer which grossly under compensates you for your injuries.

Insurance misconceptions

Many people considering a private settlement are worried that their insurance rates will skyrocket if they report an accident, even one in which they were not at fault. I wish that there was an easy way to settle this question but the truth is the situation is a bit more complicated. How an accident will affect your rates is determined by the particular insurance company involved. For some companies, rate increases are only assessed against drivers who are at-fault in a collision. In other situations the severity of the incident or the amount of damage is a critical factor. In today’s competitive insurance market, some insurers actually market policies that include accident forgiveness clauses designed to prevent rate increases associated with certain types of collisions. Ultimately you will have to check with your particular insurer for details. However, it is unwise to attempt a private settlement merely out of fear that your rates will go up.

Notification

While they may not raise your rates for reporting an accident in which you were not primarily at fault, not reporting an accident can give the insurance company a reason not to pay for any later claims you may decide to file for the incident. This is because most policies have a notification clause that requires you to give them a fair opportunity to duly investigate the situation. If you do not tell them in time, and the delay ends up hurting their ability to protect themselves legally, they may be able to avoid paying on your claim.

Don't forget the DMV

While not reporting an incident to your insurance company is a matter of choice – albeit with some consequences for choosing poorly – reporting to the DMV is not optional. Under California law any accident with over $750 in damage or with any personal injury – no matter how minor - must be reported within 10 days of the incident. Both parties must file this report, regardless of fault. Furthermore, if any party was uninsured at the time of the incident, the DMV will still impose sanctions on that person including suspending their license for one year.

Dishonesty, double-dipping, and fraud

Even if you avoid the minefield presented by the above issues, there’s sometimes no accounting for human ingenuity. Without the benefit of deep insurance pockets, you may have a very difficult time actually collecting on your private settlement; especially if you agreed to take payments. Personal checks are often no good, and by the time you figure this out it might be too late to find the person. In every accident you should always take down insurance and driver’s license details from all parties involved, in addition to taking pictures of the scene and any damage. This way, even if you accept a private settlement up front, you’ll have some recourse if things go south later on.

Hire a lawyer

Hire an attorney! I know this might seem suspect coming from an attorney, but I hope I've convinced you that it’s good advice. Settling your accident privately is legally and financially risky and the motivations for doing so are weak at best. Get the legal help you need and avoid years of potential headache down the road. Your attempt to save a few bucks in the short term might end up costing you everything.