| Richard F. Sharrard, Sr. Attorney At Law |
101 w. Schwarz St. Edwardsville, Il. 62025 |
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{ Frequently Asked Questions } { Judgements/Verdicts } { Did You Know That? } This Section contains topical news information you might be surprised to learn about in the legal world.
Did You Know That?
Allstate Insurance Dirty Tricks Alert! Here is what one of my colleagues, Scott DeSalvo recently reported: He represents a man who was a passenger in a car that was struck by a driver insured by Allstate. The property damage to the car was relatively minor, but the man had immediate back pain and went to his doctor. An MRI showed that he had a herniated disc in his back. He was referred to a neurosurgeon who discussed various options, with the most solid choice being to have surgery and fuse two levels of his spine for stabilization. Allstate sent an investigator to tell the doctor words to the effect that: "You know this is a bogus case; there was hardly any property damage; the injury isn't related to the accident and we are not going to pay this claim so you shouldn't treat this patient!" This is a direct intrusion on the doctor/patient relationship; if the patient has an attorney it is a clear violation of Illinois law for the other side to have direct communication with the doctor. If the insurance company does not have the patient's permission to talk to the doctor then it is a violation of the HIPPA Laws which protect patient confidentiality. Finally, it is simply outrageous conduct intended to subvert the treatment of a patient BEFORE there has been any determination of whether the person insured by Allstate is even liable for the damages!
Just remember, from the moment you are injured in an accident, the other
side may resort to all sorts of tactics to defeat your claim. You should
always seek legal advice immediately.
Consumer Alert: If you own a camper with a refrigerator please take note! Changes to the Illinois Workers Compensation Act - An overhaul of the Illinois Workers Compensation Act is going to be signed by the Governor in the near future. The new changes include:
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Here are the numbers you never heard during the Medical Malpractice debate in Illinois:
According the Illinois Business Journal, May 2005, quoting statistics
obtained from the Madison County Circuit Clerk's office, here are the actual
numbers of case filings between 1996 and 2004. During those eight years, a
total of 374 cases were filed. This is an average of about 46 cases a year.
208 of those cases were ultimately dismissed for one reason or another.
This means that a total of 166 cases, or about 20 cases per year, were
resolved by settlement or trial after filing. Over this eight year period a
total of eleven cases went to trial: The injured plaintiff received a
verdict in four of those cases; the medical provider won in seven of the
cases. In the year 2000, the population of Madison County was about
259,000 people. Imagine how many treatment visits occurred between doctors
and patients over an eight year period with a population of a quarter of a
million people. If each person in the county had one medical visit per year
over that time there would have been about 2 million visits. This is
probably a conservative estimate. From these 2 million visits there arose
166 viable lawsuits filed in Madison County. Does this sound like an
abnormally high number? Does this really sound like a county buried in
malpractice claims? Does this sound like a system out of control? Clearly
not. The system is working just fine. Placing caps on damages will only
deprive victims of compensation and will do nothing to improve medical care.
Don't let the insurance companies fool you. The numbers speak for
themselves.
Assault on Plaintiff's and attorneys continues: IRS opens a new front. -
The internal revenue code has long provided that income must be reported for
tax purposes. When a plaintiff recovers damages that are considered "wage
loss" in a case, those damages are taxable as income. When a plaintiff
recovers for bodily injury, however, those damages are outside the
definition of income and are not taxable. A new Supreme Court case
(Commissioner of Internal Revenue v. Banks, No. 03-892, 1/24/2005),
addresses the first situation and holds that where the recovery is taxable,
the Plaintiff must pay tax on his part of the recovery as well and on the
amount he pays to his attorney under the contingent fee contract. So if the
attorney does a good job and recovers $3 million for his client and gets $1
million as a contingent fee, the client must declare $3 million as income on
his return and the attorney will have to declare $1 million on his return.
Who wins here? Not the Plaintiff, not the attorney, but the IRS sure does!
Anyone settling a personal injury case where there is an issue of wage loss
should definitely consult an attorney to make sure appropriate language is
contained in the settlement agreement to protect the client from potentially
paying income tax on his attorney's fees. Note, the new American Jobs
Creation Act of 2004 provides that attorney's fees and court costs are
deductible in suits involving unlawful discrimination.
Consumer Alert: SBC Long Distance Telephone Service -
If you have a home or business long distance service and you are considering
changing to SBC Long Distance, please think again. I have had service with
OPEX Communications for over three years and had excellent service at the
lowest prices I could find. SBC contacted me and convinced me they could
save me money with a lower rate than I was paying to OPEX. What they did not
tell me was that I would be billed higher recurring monthly fees and that I
would be billed for a minimum of one minute for each call, whereas OPEX only
billed me for the actual time of the call. As a result, my long distance
bill went up over 75%. When I called OPEX to switch my service back to them
I had the pleasant surprise of finding that their rates had gone down from
about 4.5 cents a minute to 1.7 cents a minute! Accordingly, beware of SBC
and check out OPEX for your long distance, and 800 number service if you
want to save money!
Election 2004: Kerry v. Bush. Get out the Vote! -
This is a very important election for many reasons. The country is
polarized and divided between the two candidates. Many people feel that
neither one is a particularly good choice. Jobs are going over seas. The
economy is somewhat stagnant. Fighting terrorism in the middle east is
proving more difficult than anticipated. As you know from the last election
EVERY vote does count. From the legal perspective, here is what you need to
know. The Republican party is the driving force behind a number of
movements which include: Putting caps on damage awards; restricting your
right to participate in a class action lawsuit; limiting the ability to sue
for injury from a defective product; limiting the ability to sue for medical
negligence; restricting the right to over time pay; restricting the right to
recover punitive damages. The Democratic party, historically, has been the
defender of the rights of working people, especially when it comes to their
rights and access to the court system and they are fighting the "tort
reform" movement. The next President may well have the opportunity to
appoint several justices to the United States Supreme Court as well. Please
consider these things when you vote!
Product Safety: Think twice about those trampolines -
Trampolines are a popular amusement for back yards all over the U.S. They
are also very dangerous. Statistics from the Consumer Product Safety
Commission for the years 1990-1999 show that trampoline related visits to
the emergency room went from about 37,500 to about 100,000 in ten years.
During that time there were 11 deaths. Most injuries are to children aged
6-14 and are caused by colliding into each other, falling off the trampoline
and doing stunts. About 40% of the injuries were to the leg and foot. If
you are considering a trampoline you should not let more than one person
jump at a time; always have parental supervision; check your homeowners
insurance policy to make sure that coverage for trampoline injuries is not
excluded. Remember, if your friend or neighbor gets hurt on your
trampoline, they may make a claim against you.
Missouri Work Comp Insurers Increase Profits: The amount paid in claims by worker's compensation insurance companies declined from $600 million in 1991 to $373 million in 1995. Insurer's made a profit of 23.7 cents on each dollar pain in premiums in 1995. (St. Louis Post Dispatch -4/9/97).
The myth of the courts having too many cases being tried: The American Bar Association recently reported a study of the number of trials in Federal Courts in the U.S. In 1962 there were about 50,000 civil cases filed in the Federal Courts and 5802 of those cases, or about 11.5%, were resolved by an actual trial. By 2002 we had 259,000 cases filed, but only about 4662 or 1.8% actually went to trial. Likewise, in 1962, 15% of criminal cases went to trial and by 2002 only 5% went to trial. Similarly, between 1976 and 2002, the number of trials in state courts has dropped by about 28%.
The reasons given for the decline are these: 1) Judges are trained to "clear the dockets" quickly; 2) The improved exchange of discovery of facts helps parties reach settlements; 3) The average length and cost of trials has increased; 4) Lawyers who lack trial experience are less likely to go to trial; 5) Judges are more likely to dismiss a case as not worthy of going to trial; 6) Sentencing guidelines make trials riskier for criminal defendants; 7) Corporations view trials as expensive and risky; 8) Alternative Dispute Resolution, such as mediation, improves the chances of settlement; 9) Attorneys are efficient at negotiating settlements. (St. Louis Lawyer, 8/4/04).
The Republican Party continues to erode your right to your day in court: The primary force behind the "tort reform" movement is the Republican Party. Over the last several years there have been continuous attempts on both the state and federal levels to pass new laws that would limit both the ability to bring a case and the amount of damages a jury can award in a civil lawsuit. The primary targets are Asbestos litigation, Medical Malpractice and Class Action law suits. Remember this when you go to the polls. The legal system is not broken and the mass media which sensationalizes individual case results does not present an accurate picture of the system for you. (ABA Journal, 12/6/02).
Doctors suing insurance companies? On 11/12/02 the Chicago Tribune reported a group of Ohio doctors filed suit against a group of insurers for conspiring to reduce the reimbursements paid to doctors for medical services. (ITLA, "Vested Interest", 12/02).
And to hear the doctors tell it, the lawyers are the source of all their problems!
Doctors who deserved to be sued #1: A Massachusetts man filed suit against his doctor when the doctor, who was in the middle of a spinal surgery operation, left the operating room for 35 minutes to cash a check a nearby bank. At the investigation by the state medical board the doctor admitted to having "exercised remarkably horrible judgment."
Prior to the surgery the patient only had pain on his left side, now he has chronic pain on both sides. (Reuters Foundation 12/4/02).
Illinois Work Place Fatalities: The Chicago Sun-Times (1/22/02), reports that 205 people died in work related injuries in Illinois in the year 2000. That's about one every other day. 40% of the deaths were related to transportation, such as auto accidents. Still, this is a decline from the 249 deaths reported in 1995. Interestingly, the number of construction deaths increased 40% after the Republican legislature repealed the Structural Work Act (ITLA "Vested Interest", Feb. 1997).
Medical Malpractice Insurance Crisis? You do the math: In 2002 the Missouri Department of Insurance conducted a survey of medical malpractice insurance companies. Between 1998 and 2002 these companies collected premiums totaling $1,180,237,000; during that period they paid claims of $687,805,000. The profit was $492,432,000 or 41.72%. It should also be noted that most insurance policies only cover damages up to $1 million, so the verdicts over that amount are not paid by insurers.
Madison County Illinois Malpractice Crisis? Not! If you are exposed to the radio, TV or newspapers in Southern Illinois you have, no doubt, heard the scathing ads and stories decrying the "medical malpractice crisis" in Madison County, Illinois. Interestingly, the office of the Circuit Clerk released a study of Med-Mal cases in Madison County from 1996 to 2003. In that time period there were 320 cases filed and 169 dismissed. Verdicts in favor of plaintiffs were four and verdicts in favor of doctors were seven. The average verdict for a plaintiff was $588,500. Most importantly, there has not been a verdict in favor of plaintiff since 1999. So why are the insurance rates going through the roof? Is it the lawyers who are driving out the doctors or is it the insurance companies?
Overtime suffers another blow in 2003: This is important if you're an employee in the state of Illinois and you have a worker's compensation claim. Two recent decisions have changed the law in calculating the average weekly wage which is the figure that all compensation is based on. Previously, if you worked "overtime" on a regular basis, those hours were included the weekly wage calculation, but at the straight time rate of pay. The new test says that to include overtime hours the employee must show: 1) he was required to work overtime as a condition of employment, or 2) he consistently worked a set number of overtime hours, or 3) the overtime hours worked were part of his regular hours of employment.
Tip of the Day: Save those pay stubs! As an Illinois employee your average weekly wage is based on what you earned, in the job on which you were hurt, during the 52 weeks before you got hurt. Saving your pay stubs will help you and your lawyer make sure you get paid the correct benefits. Also, if you work two different jobs, make sure each employer knows of the other job. That way, if you get hurt and you are disabled from both jobs you can use the income from both jobs to calculate your average weekly wage.
FULL COLLECTION OF MEDICAL BILLS: The Appellate Court in Illinois ruled this year that an injured party may recover the FULL amount of all medical
bills in a civil personal injury case. For example: You are injured in a car accident. You go to the hospital and are billed $2500 for emergency
room treatment. You turn the bill over to your group insurance carrier which uses its clout to negotiate the bill down to $1500 and the hospital
agrees to take that as full payment. When you go to court, however, you are allowed to claim the entire $2500 bill as damages. This involves the
application of the "collateral source rule" which says that when you have supplied your own coverage, the defense cannot use that to reduce the
damages they would otherwise be liable for. If you did not provide the insurance in the first place, you would have liable for the full $2500
yourself, so the courts feel that the full bill represents the actual value of services that should be recovered. This case is now on appeal to the
Illinois Supreme Court...stay tuned!
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