February 7th, 2013

Medicare Set Aside Argument

Recently we settled a significant personal injury case where we addressed the issue of a Medicare Set Aside (MSA). The issue was raised by defense during settlement negotiations. Defendants argued they could be held liable by Medicare as could we if we ignored the MSA issue. They initially attempted to control what portion of the settlement funds would be used for a MSA. This post discuses how we handled the MSA issue.

Medicare and Medicad Liens. The Medicare program was established by Congress in 1965 in the Social Security Act. 42 U.S.C. sec. 1395 et seq. Medicare provides medical payments for Medicare eligible people (people receiving Social Security benefits). Under federal law Medicare has a super lien for reimbursement of Medicare benefits paid for the injured Medicare recipient’s medical specials. Nonetheless, federal regulations require Medicare to reduce the amount of its recovery to take into account the cost of procuring the settlement when the claim is disputed and the recovering party has borne cost in obtaining the recovery. In re: Zyprexa Products Liability Litigation, 451 F. Supp.2d 458(E.D.N.Y. 2006)(analysis of Medicare and Medicade liens). Federal law also recognizes Medicad (state version of Medicare) liens, and provides federal authority for collection of Medicad liens.  See Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006)(Arkansas Medicare statute for plenary lien held invalid, must recognize injured plaintiff).

Medicare Set Aside. A MSA is a fund separately identified from the settlement proceeds to be paid to Medicare for the injured plaintiff’s future medical needs. Recently defendants (insurance companies for defendants) have been arguing the settlement must include a MSA. This argument is made even when the injured plaintiff is not yet and may never be a Medicare recipient. Defendants also try to dictate  the amount of a MSA. In personal injury cases, these arguments must be resisted  to the point of litigating the MSA issue.

Federal Authority. “No federal law requires set-aside arrangements in personal injury settlements for future medical expenses.” Sipler v. Trans Am Trucking, Inc., (D.N.J. 2012). As recognized by the Sipler court, tort cases involve non-economic damages which are not determined by an established formula. See Zinman v. Shalala, 67 F.3d 841,846 (9th Cir. 1995). “[T]o require personal injury settlements to specifically apportion future medical expenses would prove burdensome to the settlement process, and, in turn, discourage personal injury settlements.” Sipler; cf. Ahlborn,  587 U. S. at 268  (in context of Medicad).

Solution. Our solution is plaintiff will consider the need for a MSA after consulting with a  MSA law firm, but plaintiff has the responsibility and discretion to determine the final set aside (if any). The terms of the settlement order  give plaintiff control over the MSA issue. Below is the relevant language:

Finding of Fact-Establishment of Qualified Settlement Fund. The parties have agreed to use a Qualified Settlement Fund  (QSF) established pursuant to section 468B of the Internal Revenue Code for purposes of holding the settlement funds and the disbursement of such funds pursuant to orders of this court.

Conclusion of Law-Orders of Disbursement. Orders of disbursement from the QSF will be made to ensure Medicare conditional payments are reimbursed, that a Medicare Set-Aside (if needed) will be properly funded by plaintiff out of the settlement proceeds, and that plaintiff receives the full benefit of this settlement.

Order. Plaintiff’s counsel shall promptly engage the services of Garretson Resolution Group, a professional firm that specializes in Medicare Secondary Payer compliance, to evaluate the case, determine whether a Medicare Set-Aside (MSA) is recomended, and if so, to present a proposed MSA Allocation. Plaintiff’s counsel and the QSF Payment Administrator shall take into account the MSA recommendation of Garretson to determine if a MSA is appropriate and if so the amount needed to fund the MSA.

                                          

 

    January 31st, 2013

    Cross Examination-Using Prior Statement

    After watching outstanding webinars during the Pandemic of 2020 I see the most effective way to try a significant personal injury case is through the use of video sound bites. Now I am taking video depositions, ordering the digital copy and producing sound bites for trial. With this said there are cases I will try without video depositions for cross examination. So either way below are the “Old Way” and the New Way to impeach the witness with a prior inconsistent statement.

    THE OLD WAY. Howard Nations, on using prior statement to impeach:

    1. Illicit.  Get the witness to state the contradictory testimony. In the old way without a video sound bite stand so witness must face jury to answer.

    2. Set Predicate.  Have witness agree to prior sworn statement. (Date, place, to whom). This is important in any deposition. Have a chapter in the deposition on Date, Place, Under, Oath so you can lock witness in at trial.

    3. Produce. Hand clerk the deposition and have it marked as exhibit. (Give copies to judge and opposition counsel).

    4. Witness Reads. Hand marked prior statement to witness and have witness read.

    5. Dangle Witness.  Howard Nations points out this can be embarrassing for the witness. He recommends  going to counsel table and futz  around while witness has to either continue looking at jury or look away.

    6. Return. After letting witness dangle return to cross but to a new area of questioning. This is because we do not want the witness to return to impeached topic and rehabilitate through answer to similar line of
    questioning.

      June 9th, 2012

      Jury Selection

      Below my latest on jury selection:

      Introduction. “Get to talk to you three times: Now during jury selection, opening statement, and closing statement. But here in jury selection you do most of talking. What we are doing is hearing your personal feelings, experiences and outlooks to see if this is the right jury for you.”

      Read Neutral Statement. “What comes to mind on hearing this statement?” (Ideally we are off and running after the first comment. Listen and encourage input. Keep the comment ball rolling). “Who agrees with Mr. Jones?”  “Who disagrees.” “Tell me more.” Thank panel member for input. Never cross examine or disagree.

      Flow into Next Area of Discussion. Allow panel members to get into other topics on their own through input when good topic for discussion surfaces as conversation evolves. Be attentive to talking juror. Listen with appreciation.

      Either or Questions. Have set of three either or questions to get conversation when never starts, dies, or running out of time. “Let’s do either or. I will read two statements and ask you to raise your number for the statement closest to how you feel.” 1) Lawsuits are at times necessary to receive fair compensation for a personal injury, or Lawsuits are a drain on society, bad things happen, move on and forget about personal injury. 2) There should be caps on damages above which jury cannot award, or Juries should be able to award what they collectively feel the case is worth. 3) If a person is injured his medical bills should be paid and his lost wages but that’s it, or If a person is injured he should also receive money for non economic damages he proves.

      Note on the either or you will find jurors who do not agree with either proposition. These jurors are often the type who will be the presiding juror. Have discussion with jurors who will not go either way to hear their feelings and viewpoints.

      Save Softball Question. Always end positive. This is done by way of softball feel good question involving everyone. “Not much time left. In one word tell us your most important thing in life. Then go to juror after juror ending voir dire with last answer.”

        March 7th, 2012

        My Mantra

        In 2010 I posted a Thought of the Week termed Philosophy of Navy Squash. This philosophy has become my mantra. I personally go through the Navy Squash motto on a regular basis, especially before and during a trial.

        Prepare for Your Mission. To try the case we must know the case. This means knowing our client’s story. Our client’s story starts with knowing our client’s background, unique activities, especially those impacted by her injuries, the mechanism of injury, her treatment and our client today. Once we have internalized our client’s story and can discuss it from the heart we are prepared for our mission.

        Believe in Yourself. To succeed in trial we must have confidence in our ability to advocate our client’s case. We must believe as in know we can do the job. This comes from a combination of thorough preparation and self acknowledgment of being a capable and effective trial lawyer.

        Accept the Possibility of Failure. It took me a while to understand  this third prong of the Navy Squash motto. We are programmed to prepare to win and think we will win. But to win we must be ourselves. To be ourselves we must overcome the natural fear of being disliked by the jury. Accepting the possibility of failure allows us to relax and try the case naturally. Stated another way accepting the possibility of failure divorces us from being result orientated during trial. We are at our best when we forget about possible results and focus on the trial moment doing the best we can in the trial moment. Before a trial I have a silent communion with myself in essence a mediation where I acknowledge and internalize the possibility of failure. This is an important step in reaching the state I need to be in in trial-freely living in the trial moment.

        Give Your Best Effort. This is different than believing in yourself. This is the doing part of the equation. This means living the trial from start to finish. Although it is essential to prepare for the trial, all trial lawyers know a trial takes a life of its own. We must adapt as this occurs. Adaptation means fine tuning and at times retooling in the day during trial and at night before the next trial day. Giving our best effort means a solid focused work effort from start to finish.

        Never, Never Quit on Yourself. The great trial lawyer Paul Luvera teaches trial is a battle. There will be times when the other side is scoring points. There will be times when things do not go as planned. There may be times when things go bad. The key is to never stop battling. The Navy Squash team built its winning tradition by contesting every point to the end.  We must do this in trial.

          February 29th, 2012

          When to File the Case

          Although the majority of personal injury cases settle, it is often necessary to file the case and move toward trial to get fair value from the insurance company. File the case when:

          Difficult Insurer. Rule number one is file the case as soon as you know the adjuster does not appreciate the case or the insurance company is one where fair value is rarely if ever paid without being willing and able to try the case.

          Significant Injury. In many significant injury cases it is necessary to file to get a fair result. In significant injury cases where the insurer is expected to pay a lot of money the insurer  will want to go through the steps of discovery before it will pay fair value. Litigation allows the insurer to take depositions of key witnesses particularly plaintiff and expert witnesses. Also the insurer by getting its lawyer involved is more comfortable paying a significant amount because it gets the picture of what will happen at trial.

          Low Policy Limits. When there are policy limits less then estimated case value, and insurer refuses to promptly tender following limits demand, file.  Here the insurer has made a mistake. Proceed to trial and get the fair value of the case. The foolish insurer is on the hook for the entire amount, because refusing to tender limits is bad faith.

          High Policy Limits. When the insurer’s insured has limits that likely exceed case value it is usually necessary to file the case. This is because the insurer has no fear. An insurer with no fear is an insurer that will under pay the claim. The only way to get full value is to demonstrate to the insurer the qualities of the case by way of heading to the courthouse. Then and only then will the insurer consider paying fair value.

          Low Ball Offer. At times it seems the adjuster wants to be fair and pay fair value without filing. The truth emerges however when a ridiculous offer follows a fair demand. Here the insurer will never get to fair value until it sees you can and will try the case. It is a waist of time to negotiate after a low ball start by the insurer.

          Comparative Negligence. When the adjuster tells you out of the box your client is partially responsible and there is no basis for this poppycock file the case. This is similar to low ball offer with the difference being the adjuster does us a favor by telegraphing sooner rather then later a low ball offer is coming.

            January 4th, 2012

            What I’ve Learned from Others

            This post discusses lessons I have learned from wise people to make me a better lawyer.

            James A. von der Heydt. Patience and a calm demeanor. A recognition the answer is found with an understanding of the facts and meticulous research.

            Lewis Gordon. Keep a sense of humor. Law is hard enough so learn to laugh. Remember the environment and advocate for it whenever possible.

            Simon Rifkind. All trials are plays. Cast your client as the hero. If client must be the villain cast as a lovable villain. Judge trials are the same as jury trials except judge is a sophisticated theatre goer. Never waive opening statement.

            Phil Carter. Professionalism. Look like a lawyer and act like a lawyer. Never underestimate your opponent.

            Robert Tjossem. The best defense is a strong offense. Analogy is that of a bullet train. With your argument stay on your track, go at full speed to the station. Watch as the other side moves to your track and gets run over.

            Charlie Burdell. Graciousness with confidence. A non ending sense of fairness. The quality of being a friend to many.

            Rod Pierce. Fearless and unflappable advocacy. Unfazed in defeat; one battle does not make the war. Prepare for the next battle.

            John Strauss. A fierce belief in the case. Strike first. Unwavering confidence in winning the case.

            Rob Kornfeld. Accept the winners turn down the losers. Never rest on success. Stay on the horse and ride into the next one.

            Scott Bowen. Reasonableness in attorney’s fees. Help those that need help. Firmness with compassion.

            Steve Lingenbrink. Community involvement. Involvement by helping others with collateral benefit of attracting clients.

            Bob Dawson. Think outside the box. Big defendants only respect the power of a quality well prepared case. Try the case and tell the story.

            My Wife. Kindness to others, especially clients and staff.  A confident and happy legal assistant is a quality legal assistant. Nice to all without pretense.

            Still Learning. I continue to learn from others. The day I stop learning and growing as a lawyer is the day I retire. At my rate this will be a long time.

              August 4th, 2011

              Cross Exam of IME Doctor in Rear End Collision Case

               

              This post is from an outline we recently used for cross exam of an IME doctor in a rear end collision  case. As a rule we have taken the doctor’s deposition prior to trial.

              If not discussed in direct, we begin by questioning the doctor on his treatment practice.  We elicit testimony on his experience in treating patients with similar injuries sustained by plaintiff. If he has little or no prior experience in treating similar injuries he lacks credibility in understanding the nature and extent of the injuries in our case.

              Factors Typically Influencing Injury. Factors known to influence injury include: Gender, Age,  Pre-Existing Condition, Significance of Impact, Design of Target Vehicle, Heavy duty Bumper and/or Tow Bar on Target Vehicle, Size of Bullet Vehicle, Awareness of Impact, Out of Position Body (head turned and distance from head rest). We question the doctor on the specific injury influencing factors present in our case. This introduces how our case is unique in that we have specific facts that make injury more likely.

              Treatment of  Patient for Cervical, Thoracic, Lumbar Sprain and Strain. Sprain and strain injuries are classic rear end collision injuries. There is nothing soft about soft tissue injuries. Sprain and strain injuries are real and it is important to revisit this in cross examination. “Define sprain.” We have the doctor recognize a sprain as an injury to ligament. We discuss how  like a rubber band, once stretched and or torn beyond their elasticity, they are not the same. “Define strain.” The same holds true for muscle damage. In significant trauma the muscle fibers can be torn. When they heal the scar tissue is not the same as the initial uninjured muscle.

              Typical Course of Treatment. Often the doctor will say treatment for a few weeks and the patient is good to go. This is a cop out as there are grades of sprain and strain injuries. A grade three sprain is likely a permanent injury. Here we also question the doctor on referrals he makes such as physical therapy that are similar to the treatment our client has received.

              Permanent Injury Cases. Here we discuss the case where the patient has permanent injuries. Often permanent injury cases involve older people who had asymptomatic degenerative joint disease going into the collision. “Have you ever had  a rear end collision patient who has not fully recovered?” Then discuss  why patient never fully recovered. “What common factors have you found in patients who have not fully recovered?” (Gender, Significant impact, Rigidity of bumper, Tow bar, Mass of bullet vehicle, Out of position body, Pre-existing degenerative disc disease). “What can be done for a patient who has continuing residuals from a sprain and/or strain?”

              Loss of Enjoyment. “What activities are typically impacted for patients who have permanent sprain and strain residuals?” Here we tie in our client’s impacted activities to the patients of the doctor who have had adverse impact to their similar activities.

              Subjective Presentation. “Do you rely on the subjective presentation of your patient to assist in determining if a sprain and strain is permanent?”  Most treating doctors practice the SOAP method. The first thing they do when they see their patient is note the subjective presentation of their patient. This is important because the patient reports what her condition is. Here we can pursue this with the IME doctor by discussing why the doctor listens to and believes the patient. “How much validity do you give to the input of your patient on continuing residuals?” “At what point do you conclude your patient has permanent residual pain and limitations?”

              Your IME Practice. Now we change from treating doctor questions to IME doctor questions. “What percentage of your medical practice is forensic examinations and testimony?” “How many IME’s do you perform in a typical week?” “How much do you charge per hour for an IME.” “For deposition testimony?” For trial Testimony?” We usually stop after these basic charge per hour questions, and often we do not bother with them. Our experience is the jury knows the doctor is charging and it is a waste of time to impeach on money charged to do forensic work. The exception is when the doctor only has an IME practice, it is almost only defense, and the doctor make hundreds of thousands of dollars a year. We do ask what percent of IME work involves defense v plaintiff work.

              Select Discussion of IME. At this point we cover the IME discussing favorable portions and ignoring everything else. We alternate having the doctor read select favorable portions with me reading and the doctor agreeing to select favorable portions. We always cover favorable portions of the objective exam.

              The Close. Depending on the doctor and what happened at the deposition we will close with a hypothetical patient with the doctor assuming he is a treating doctor. The hypothetical fits our client’s facts. We then ask the doctor if he agrees the hypothetical patient has a permanent … injury. If the doctor is not going to go with us we close on favorable objective findings from his IME.

                June 29th, 2011

                Practice Law Like a Duck

                Being a quality lawyer is like being a duck:

                Calm on the Surface. A duck is calm on the surface but underneath the duck is paddling to keep up. Calm on the surface is the key. The quality lawyer remains cool and collected in adversity. For instance in a jury trial when a witness’s testimony is damaging the quality lawyer shows a calm reaction. The jury looking at the lawyer’s body language for cues on the significance of the testimony sees the body language of a non event as in this is nothing to be concerned about.

                Active Underneath the Surface. The duck’s work is underneath the surface in the form of paddling.  This allows the duck to stay calmly afloat while making progress. This is the trait of a quality trial lawyer. Thinking calmly on his feet he rapidly calculates his next move and goes there moving the trial forward. In the office the quality lawyer works the amount of time it takes to draft pleadings that show a well thought, organized argument.

                Loyal. Ducks are loyal. They are said to mate for life. The female is fiercely protective of her young showing them how to get to water and how to grow to a mature duck. The quality lawyer bonds with her client. The quality lawyer protects her client. The quality lawyer leads the way for her client to progress successfully through his case.

                Know When to Migrate. Ducks instinctively know when to migrate. This means they know when to move. The quality lawyer has an instinctive ability to move the proper direction in a case. This means when to settle, when to file, when to interview witnesses, when to schedule depositions, when to schedule witnesses,  and when to move into positions and arguments in trial.

                Let the Water Roll Off. In a rain storm when humans and animals seek cover the duck stays in the rain and lets the water run off. The duck is unfazed by the adverse element of rain. The quality lawyer weathers adversity in the same way. Adversity is part of the job. Sometimes it rains. So what. The quality lawyer does not run for cover. The quality lawyer weathers the adversity, unfazed, and continues to move forward.

                Duck Looks Like a Duck.  As the saying goes: “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” When a lawyer is accepting, looks like a lawyer, moves like a lawyer, and speaks in concrete terms using nouns and verbs, then the person is probably a quality lawyer.

                  June 23rd, 2011

                  Dress Like a Lawyer

                  Although many lawyers choose to practice law in casual attire. For court appearances and certain matters we must dress like a lawyer. To me this means professional attire that inspires confidence-as in a client seeing me as their lawyer. As in a client thinking he looks like a professional who knows what he is doing. As in a client thinking damn I’m glad he’s my lawyer.Generally this begins with the first impression. Like it or not first impressions are made on how we appear, and this means how we dress. Below are my maxims for a professional appearance:

                  Always Neat. Take time in the morning to address personal hygiene. Give thought to what I am wearing so when I leave the house I have consciously chosen my outfit. I present a decent appearance. I present in a way I will be able to meet a new client even if I do not expect this to happen.

                  Hair. My hair is professionally styled.  What is important is my hair is neat and clean. It appears I have put some thought on making sure it looks professional.

                  Shirt. Generally this means a dress shirt. For me this translates to a button down all cotton professionally laundered white or light blue shirt. I wear Gitman Brothers shirts which are high quality and look high quality.

                  Suit/Sport Coat. I wear a suit or sport coat and slacks 80% of the time. The suits are quality but I buy them at Nordstrom Rack stores or at outlet mall stores. At these venues I pay about 50% of the original price. I buy classic suits and sports coats that never go out of style. Suits are usually Hickey Freeman. Sports coats are Harris tweed or tasteful low key wool patterns. Liking the Ivy League look, I have the mandatory blue blazer with either tan or gray slacks.

                  Tie. Ties are silk, usually purchased at the Nordstrom Rack where a $75 tie sells for $25. I favor ties that are mostly blue or mostly red. These are power colors. I like classic stripe ties and conservative pattern ties. My tie matches my shirt and suit/sport coat. I almost always tie a half windsor knot. The tie always descends to the belt.

                  Shoes. Here I go with quality leather dress shoes usually leather soles. My favorite shoes are made by Allen Edmunds. Here I have black, cordovan and brown. I wear classic styles with my favorite being cap toes. My shoes are always shined. Never skimp on shoes. Good shoes aren’t cheap and cheap shoes aren’t good.

                  Belt and Socks. I always wear a belt. My belt matches my shoes. I almost always wear socks. My socks match my slacks.

                  Watch. I have a Rolex Explorer white face. I used to wear a cheap watch to trial. But this is phoney so now I wear the Rolex. It’s simple but classic. 

                  Casual Friday. On Fridays and days where I chose to go casual I dress like a golf pro. This means cotton khaki slacks with a collared shirt.

                    June 16th, 2011

                    The Defense Exam Doctor

                    In many personal injury cases the insurance company for defendant will pay a defense medical doctor to do a CR 35 forensic exam of plaintiff. When the forensic defense doctor testifies he predictably states the injuries should have healed in a few weeks, there are little or no objective symptoms, plaintiff has reached maximum medical improvement, and there are no residual injuries. This post discusses how we deal with the defense medical expert.

                    Take Doctor’s Deposition. Under the terms of CR 35 we receive the defense IME report. We will use the report for cross examination, but we want to go beyond the IME. Thus, we note the defense IME doctor’s deposition. At the deposition we cover the following:

                    You as a Treating Physician. Here we ask questions that go to doctor’s practice as a treating physician. When were you a treating doctor? Where were you a treating doctor. Have you treated patients who were traumatically injured?  Surgery and non surgery? Did you ever see a traumatically injured patient for more then 10 medical visits? More then 20? How long was a typical visit?  Do you use SOAP notes? Agree symptoms may wax and wane. How much validity do you give to your patient’s subjective presentation? Did you ever treat a [patient with similar injury as client] who never fully recovered from their injury? Discuss. How do you determine if your patient has a permanent injury?

                    Factors Influencing Injury. Let’s discuss factors that influence injury. Agree gender is a factor (studies show women more likely injured then men). Agree age is a factor (older the more difficult traumatic injury). Pre-existing condition (injury more likely to degenerative discs/joints). Significance of impact (harder the more likely injury). Applied to rear end collision. Design of target vehicle: Rigidity of bumper (more rigid more likely injury). Tow Bar (more likely injury). Size of Bullet Vehicle (larger=more mass=more injury). On the body. Awareness of impact (unaware =no bracing=more injury). Out of position body (head/body turned=more injury). Head away from head rest (= more neck injury).

                    Medical Terms/Articles. What is a strain? (tearing of muscle and new scar tissue is not the same). What is a sprain? (over stretching of tendons and ligaments that do not get back to original tightness). Does a sprain/strain involve both conditions? Copy medical articles/abstracts that support your client’s injury presentation. Introduce to doctor at the deposition. Discuss. Mark as exhibits.

                    Staying Current. What  medical publications do you subscribe to to stay current? What internet sites do you regularly read? Name CME seminars you have attended in last 24 months. When was last time you published in peer reviewed journal. Citation.

                    IMEs Generally. Percentage of cases for defendants v plaintiffs. Protocol for IME discussed. (Number in a day, week, year). Amount charged per hour (Hourly for IME, for deposition, for trial). Have you ever found an injured plaintiff to be permanently injured? Discus. Agree you get subjective presentation. (Same as when treating and subjective presentation allows for understanding of condition from injured person/patient). See person only once. Exam lasts 10/15 minutes. Not there to help patient recover.

                    IME Specifics. Cover favorable portions of IME. Have doctor read favorable portions into record. Especially impact facts, subjective presentation, range of motion limitations, and objective findings. Have doctor discuss candor of client. Honest, straightforward fully cooperative. Don’t bother with opinions and conclusions that hurt as deposition is the time to set the table for cross examination at trial.