Injury Survivors and Money. You and #6.

Most Mainers don’t have a lot of money saved for the day a distracted driver injures them. But the medical bills pour in, and the paycheck is on hold, and the wrongdoer’s insurance company says “Tough-We don’t think you’re really hurt.”  A Justia article lists the six features that sociologist Nils Christie indicates folks consider before they say to a victim “OK-you deserve to be put back to baseline with  money.” The survivor who is worthy of a money judgment is: (1) weak compared to the offender; (2) going about his/her life doing nothing wrong; (3) not at fault; (4) a stranger to the wrongdoer; (5) the wrongdoer is big and bad; and (6) the injury survivor is sympathetic without threatening a strong countervailing interest of the juror’s community. For most Mainers injured in a car crash they hit all six targets. Your body is no match for the offender’s two ton car plowing into your car. You were stopped at a red light minding your own business. You never met this distracted driver before. The wrongdoer’s insurance company is experienced at denying injury claims. And what about # 6? What about you as a person? Are you a hard-working, family-oriented regular Mainer? Bringing your best self  into sharp focus– who you are and what you stand for is a big part of being a plaintiff in a Maine courtroom. Honesty counts, and showing that you worked hard to get back to baseline is a key part of your case. That’s why we ask clients so many questions about income and health history and what, exactly, has happened since the crash. Because jurors are going to want to know whether you sat back and waited for someone to help you, or whether you helped yourself by doing whatever you could to get better. That’s a hard reality if you’re so badly hurt that it takes all your effort just to face the day. But it’s what we have to do to help you win what you deserve. We have to deal with #6.

“Causation” in Maine Motorcycle Accident Cases

In Maine, a motorcycle accident or “negligence” case is made up of four elements: (1) a duty of care, (2) breach, (3) injury, and (4) a finding that the breach caused or partly caused the injury. Motorists in Maine owe a duty of care to others driving on the road, including motorcyclists. While duty is a question of law, the breach is a question of fact for a jury.

Causation is also a question of fact. Did the defendant’s breach of the duty cause the accident and subsequent injuries? Sometimes a defendant will bring what is called a “summary judgment motion.”

This kind of motion requires a plaintiff to bring forth evidence in the record (deposition transcript excerpts, discovery responses, declaration attested to under penalty of perjury) to support each of the four elements outlined above. A judge reviews the evidence to see if it’s sufficient to bring the question of fact before a jury.

In a recent case, the court considered whether there was enough evidence of causation for a motorcycle accident case to survive a summary judgment motion. The case arose when a sheriff’s deputy spotted a motorcycle speeding while on duty. The deputy followed and approached the vehicle, turning on emergency lights to alert the motorcycle to stop. The motorcycle didn’t stop.

Later it was discovered that the motorcyclist did not hold a certificate allowing him to operate the motorcycle. When the sheriff chased the motorcyclist, it exceeded 90 mph. The parties differed in their accounts of what happened next. The deputy said he slowed at the intersections and didn’t see the motorcycle after it turned a corner. He turned and saw the motorcycle off the pavement with the motorcyclist lying about 27 feet from the motorcycle. He radioed dispatch, but explained that he used the wrong code; the code he used indicated he had collided.

The parties agreed that there was no physical evidence of contact between the deputy’s vehicle and the motorcycle. Moreover, the physical evidence showed the motorcyclist died of blunt head trauma consistent with falling off the motorcycle and hitting his head on the road. But the motorcyclist’s estate, which brought the suit, argued that the deputy’s use of a code number indicating collision created an issue of fact for a jury as to whether the deputy’s vehicle made contact with the motorcycle. The parties agree, however, that there was no physical evidence that the cruiser made contact with the motorcycle.

The deputy’s supervisor used a reconstruction to show that the the motorcyclist was not able to make a proper turn, and as a result the motorcycle rolled and the motorcyclist was thrown. He also determined that the motorcyclist’s blood alcohol content was twice the legal limit. The supervisor believed the motorcyclist’s impairment was the legal cause of his accident and death.

The Estate was not able to present evidence that the deputy’s vehicle was near the motorcycle. The defendants moved for summary judgment, and this was granted on the basis of “discretionary function immunity.” This term refers to the idea that a governmental entity is immune when a government employee injures someone in the ordinary course of carrying out his or her job duties.

The plaintiff appealed the decision. The appellate court explained that there was insufficient evidence in the record for the element of “causation.” The evidence supported the conclusion that the motorcyclist’s own alcohol-related impairment caused his crash. The code dialed by the deputy without physical evidence was not sufficient to raise a question of fact. Accordingly, even though the discretionary function immunity argument that the lower court relied upon did not necessarily apply, the lower court’s ruling was affirmed.

If you have been hurt in a motorcycle or other motor vehicle accident, it is important to seek counsel as soon as possible. The experienced attorneys of Briggs & Wholey can help you file your personal injury claim. To schedule a free consultation, please contact Briggs & Wholey, LLC through our website today.

Paying More for Less: How DRGs Hurt Patients

It’s no secret: health insurance has made everything more complicated
and more expensive. Most of the time, we just pay our deductibles and
our co-pays and let the insurance take care of the rest. But behind the
scenes, a whole host of tricks and tactics take place between health
insurers and providers that most of us don’t even think about.

One such arrangement is the use of the contractual DRG, or the
“Diagnosis Related Group.” The DRG was originally developed by Medicare
in an effort to simplify payments and – supposedly – to make
reimbursement more fair. It works like this: instead of counting up all
of the individual pieces of treatment, equipment used, and medication
administered to a patient, Medicare figured out the average cost to
treat each patient with the same condition. For instance, for any
patient with the flu, Medicare figured out the average amount of money
it costs to take care of a flu patient. Then, it decided to pay
hospitals that same amount for each flu patient it treated – regardless
of how much the hospital actually spent on that patient’s care. This
means that, if a hospital could take care of a flu patient for less than
the average cost, it made a profit. On the flip side, if the patient
was “more expensive” than the average patient – that is, if he or she
required more advanced treatment or a longer hospital stay – then the
hospital had to eat any extra cost above and beyond the payment it
received.

There are two problems with this model. The first is obvious: it
encourages hospital to devote as few resources as possible to any given
patient. If the hospital is getting paid $3,000.00 to take care of a
patient, but can get away with releasing her after only $1,500.00 worth
of treatment – why wouldn’t it take advantage of that? Under this model,
it’s easy to see how hospitals can become too intent on maximizing
profit in exchange for doing the bare minimum to treat their patients.
The second potential problem is a little less obvious, but it is
something that we have started seeing in our line of work. Let’s say
you’re hurt in a car accident and you need an MRI that costs $1,500.00,
but you have no health insurance. You are going to be on the hook for
that $1,500.00, unless you can negotiate some kind of discount with the
hospital directly. If you later get a settlement from the accident, you
are simply getting reimbursed for what you’ve already paid out.

Now, imagine you’re hurt in a car accident and you need that same
MRI, but you do have health insurance. You pay your co-pay or
deductible, and your health insurance takes care of the rest. If you
later get a settlement from the accident, you may have to pay back your
health insurance for what they paid out. In most cases, an insurer has
an agreement with a hospital to pay a percentage of the overall cost of a
treatment. So, in most cases, your insurer would pay maybe $750.00 for
that MRI, so you’d owe them $750.00 out of your settlement. It’s one of
the reasons you have insurance, right? You consistently pay your
premiums so that you pay less for actual treatment when the need arises.

Not so with DRGs. Take this scenario: you’re hurt in a car accident,
you need a $1,500.00 MRI, but hey, it’s cool because you have health
insurance like you’re supposed to, right? Not so fast. If your health
insurance company has a DRG relationship with the hospital, it might be
contractually obligated to pay $3,000.00 for an MRI that only costs
$1,500.00. And you can bet they are going to come after you for the full
$3,000.00 when you settle your car accident case. You end up paying
more than the treatment actually cost – sometimes a lot more – just
because of some agreement your insurance company entered into with the
hospital that you know nothing about. You end up paying more than you
would have paid if you didn’t have insurance in the first place.

Fortunately, you won’t run into this situation unless you get a
settlement as the result of the injury you were treated for. But if you
are hurt in an accident, isn’t it bad enough that your whole life has
been turned upside down without your own insurance company trying to
make you pay twice as much as your medical bills actually cost? It’s
time for health insurers to take a long hard look at DRGs and ask
whether they truly serve their original purpose – fairness.

Nursing Home Neglect and Abuse: The Sad Reality

Many seniors are nervous about going to a nursing home, and
understandably so. But it can be hard to tell the difference between
nervousness about being in a new environment, unfounded fears related to
age-related changes in mental status, and signs that something is
actually wrong in the nursing home environment.

In our line of work, we’ve seen all too often that nursing home
residents’ fears of staff or complaints of mistreatment are often
brushed aside. Such reports by aging residents are commonly brushed
aside by staff as delusional. This makes it hard for families to
determine which complaints should be taken seriously. When family
members do press for answers regarding how their loved ones are being
treated, they are often described as difficult. They are accused of
disrupting their loved one’s care and interfering with the staff’s
ability to do their job.

As one recent case in Georgia demonstrated, however, a nursing home resident’s fears can also be a sign of real neglect or mistreatment. In that case, a nursing home was sued by the family of a veteran who died in a nursing home. The director of nursing testified at deposition that she ran to the resident’s room and performed CPR. Luckily, there was video evidence that proved her story was untrue. The video showed that it took over eight minutes for someone to respond to his call for help, and that, even when someone finally checked on him, nothing was done to help him, even though he was gasping for air. When they checked on him again an hour later, he was unconscious. Three nurses stood around his bed. None of them performed CPR. The video showed them leaning on his bed and laughing. The case eventually resolved, and resulted in the nursing home reportedly taking steps to improve their quality of care.  You can read more about the case here.

Nobody wants to believe that this level of gross neglect happens in nursing homes. But it can, and it does. If you’re concerned about a loved one being mistreated, don’t let nursing home staff bully you into thinking that you’re crazy. If your family member suffers a serious injury as the result of nursing home neglect, don’t be afraid to reach out for legal help. There is no excuse for this type of mistreatment.

Domestic Assault and Loss of Parenting Rights

The clock started ticking on losing their child when the Maine State Police arrived. Well, actually, it started before that.

During the course of “a physical altercation between the mother and
the father” in front of their one year old son, the mom hit the father
and knocked out one of his teeth.  (In Re B.P., 2015 ME 139)

When the State Police responded to a telephone call they set in
motion the process of removing the baby from the home and granted
custody to the Department of Health and Human Services. That was in
July, 2012.  Four months later, the District Court (Maine’s court for
family matters) found that both the mom and the dad had abused
substances and exposed their son to domestic violence. It was determined
that it was in the best interest of the baby to place “B. P.” in the
care of an aunt and uncle while waiting for the appropriate time to
reunite the toddler with his parents. 

Time passed. Fast-forward to October 2014. The District Court
determined that the dad showed evidence of improved and sufficient
ability to be a safe parent for his son. But the mom – a convicted drug
trafficker and thief – failed to make the grade, particularly because
she did not obtain appropriate drug treatment and failed to complete
anger management counseling. This led the District Court to the
conclusion that the mom had a very limited ability to care for herself,
never mind caring for her son.  Her only permitted contact with her son
was through supervised visits.

Here was the catch for the dad: the District Court required that the
dad have absolutely no contact, direct or indirect, with the baby’s mom,
and also have continued counseling.

How did it go? Not well.  In less than seven weeks after regaining
custody of his son the following occurred: the mother and father spent
time together (including before and after Mom’s supervised visits where
DHS caseworkers could see the couple together), the father yelled at the
DHS caseworker in front of his toddler (calling the DHS caseworker
“whore” /“streetwalker”/ “bitch” ) and threatened the baby’s stepbrother
– who had taken a picture of the baby’s parents together – by creating a
disturbance in a parking lot and yelling at the baby’s stepbrother
“Thanks, I will be paying you back while I am raping your daughter.” (In Re B.P., 2015 ME 139, ¶¶ 4-11)

In removing the toddler boy from both parents, and terminating their
parental rights, the District Court enunciated the evidence required for
its ruling as follows: “the father is highly volatile and unstable, and
has ongoing difficulty regulating his emotional behavior. Given his own
challenges, any contact between the mother and the father is likely to
create more situations of domestic violence with the resulting adverse
impacts on B. P. Despite the history of domestic violence between them,
the mother’s persistent and completely untreated drug abuse, and their
failure to complete or even acknowledge the need for any to continued
counseling, the mother and father intend to get back together, see no
reason why they should not be together, and believe that the mother is
capable of caring for B.P. in an unsupervised setting.” (In Re B.P., 2015 ME 139, ¶12)

Most importantly for the toddler boy, the District Court found that
the parents’ behavior “has had a negative effect on B.P.” who was
described as being “unusually destructive with property, unusually
aggressive with other children,  household pets, and has shown a
troubling proclivity for self harm.” In addition, the little boy
verbalized violent imagery to his loving aunt that led the District
Court to determine that his parents’ violent behavior had had an adverse
effect on B.P.  The Court counted as significant evidence the fact that
the boy said to his aunt “you don’t love me anymore… You’re going to
throw me in the trash” and told his uncle that his father was “going to
choke [the aunt]” and that “daddy said he’s going to kill” the boy’s
grandfather. The District Court found “most alarming” the fact that the
boy attempted to choke the aunt and uncle’s cat after returning from the
trial placement with the father.  (In Re B.P., 2015 ME 139, ¶13)

The Dist. Court’s findings, by clear and convincing evidence,
included the fact the both the mother and the father were unwilling or
unable to protect their son from jeopardy, and that their inability to
protect their son from jeopardy was unlikely to change within a time
period reasonably calculated to meet their son’s needs.  The District
Court further found that parental termination was in the child’s best
interest.

On appeal to the Law Court, Chief Justice Saufley wrote that there
was “more than sufficient evidence in the record to support the findings
that the mother is unable to take care of herself, let alone her son.
She has continued to abuse drugs, she had contact with the father when
she knew that doing so would put their child’s return home to his father
at risk, and she is violent with the people she professes to love.” (In Re B.P.,
2015 ME 139, ¶17). As to the father, Justice Saufley found that there
was “more than sufficient evidence” that the father suffered from anger,
volatility, emotional control issues, disrespect for the Court/DHS and
that his behavior had had a “significant and strongly negative impact”
on his son’s behavior.

Finally, Justice Saufley took the opportunity to stress the
importance of time from the standpoint of a child. Writing for the Law
Court she stated: “This case has been ongoing for longer than 3 years.
The lack of permanence during the length of this case has already had
too great an impact upon B.P., and the court did not err or abuse its
discretion in determining that termination of both parents’ parental
rights is in B.P.’s best interest… The clock has run out.”

Umbrella Insurance Policies in Maine and Underinsured At-Fault Drivers

In most states, including Maine, uninsured motorist coverage is
mandatory. Uninsured motorist coverage is an exception to the basic idea
in insurance and tort law that an injured person’s damages should be
paid by or on behalf of the at-fault party. In Maine, the amount of
uninsured motorist coverage that must be provided depends on the
applicability of the Maine Automobile Insurance Cancellation Control
Act. Any policy subject to this law must provide coverage that is no
less than the amount of liability coverage offered to the purchaser,
unless the purchaser rejects that amount.The amount of uninsured
motorist coverage cannot be less than the minimum limits for bodily
injury liability insurance. If a policy is not subject to the law,
uninsured motorist coverage is required only in accordance with
statutory minimums.

In the recent Maine Supreme Court case Dickau v. Vermont Mutual Insurance Company,the
plaintiff had been struck by an under-insured driver while riding his
motorcycle. The plaintiff argued that either he was entitled to
uninsured motorist coverage pursuant to an umbrella policy with his
insurance company, based on the policy’s language or by operation of
law.

The plaintiff suffered more than $250,000 in damages, but the
defendant’s insurance policy only provided $100,000 in liability
insurance coverage. The plaintiff, on the other hand, was covered by two
insurance policies. A Dairyland Insurance Company policy insured the
plaintiff’s motorcycle and offered $250,000 in uninsured motorist
coverage. An umbrella policy offered liability coverage in excess of
minimum primary insurance for up to $1 million per occurrence.

The plaintiff settled with the defendant for her policy limit of
$100,000 and settled his claim for uninsured motorist benefits with
Dairyland for $150,000, which represented the maximum amount of coverage
minus the $100,000 from the defendant’s insurance. The plaintiff then
sought a judgment that his umbrella policy provided uninsured motorist
coverage, or that the policy was required by law to provide $1 million
in uninsured motorist coverage, offset by his other settlements.

Both parties moved for summary judgment. The umbrella policy
insurer’s motion was granted, while the plaintiff’s motion was denied.
The plaintiff’s appeal asked the court to consider whether the uninsured
motorist statute’s requirements applied to umbrella policies. The court
explained that an umbrella policy is one of two types of excess
insurance coverage. One is a “true excess” policy, which extends the
policy limit for an underlying policy covering the same losses. The kind
of umbrella policy that the plaintiff had, however, offered coverage
over more than one primary policy for varying types of losses. The
plaintiff was required to maintain a primary policy; the umbrella policy
would kick in only when that primary policy had been exhausted.

The court explained it was possible for an umbrella policy to include
uninsured motorist coverage, if the parties agreed. The policy language
in this case, stated that it was a personal umbrella liability policy
with a $1 million limit, but it also specified that it covered the
policy holder’s legal liability for claims made against him by somebody
else, but it did not cover damages to the policy holder’s own property,
car, or house. The policy required the insured to carry uninsured
motorist coverage of at least $250,000 per person and $500,000 per
accident for physical injuries. It expressly excluded any claim for
uninsured motorist coverage as defined in a primary policy.

The Court held that the unambiguous language of the policy did not
support the plaintiff’s interpretation of the agreement. Moreover, it
held that Maine’s uninsured motorist statute includes no requirement
that an umbrella policy provide uninsured motorist coverage.

The Court concluded that even though Maine is a “full-recovery”
state, there is no express requirement that somebody carry umbrella or
any other type of excess coverage. The Court reasoned that it would be
illogical to hold that uninsured motorist coverage is mandatory on a
voluntary form of insurance. The judgment was affirmed.

If you are hurt in a crash with an underinsured driver, you should consult a Maine car accident attorney. At Briggs & Wholey, our knowledgeable attorneys are available to answer any questions you may have. To schedule a free consultation with an experienced advocate, contact Briggs & Wholey, LLC at (888) 596-1099 or through our website today.

Can a Prelitigation Screening Panel’s Findings Be Used As Medical Malpractice Evidence in Maine?

In the recent Maine Supreme Court case of Estate of Nickerson v. Carter, a man’s wife appealed from a judgment in favor of a doctor and a primary care facility after a jury found that the doctor was negligent, but that his negligence was not the legal cause of the man’s death. The estate argued that the trial court had erred in five ways. Among the errors it claimed was that the trial court had improperly admitted findings from the medical malpractice screening panel.

The doctor began seeing the man as a patient in the winter of 1993. In an initial visit, the doctor drew blood from the man and found that the man’s cholesterol level was moderately elevated, which is a risk factor for developing cardiovascular disease. The doctor decided he would follow up with another exam in the next two years. Although he saw the man a few times over the next three years, however, he did not order retesting of the man’s cholesterol levels.

In 1997, the man requested an exam and asked the doctor to help him with filling out forms required for participation in an outdoor expedition. The doctor signed the forms but again did not order testing of his cholesterol. The man returned for an exam in 2001, and the doctor finally ordered the test of his cholesterol level. The test revealed that the man’s cholesterol levels had risen. The doctor advised him of corrections he could make to his diet. The doctor made a note to himself to recheck the man’s cholesterol levels in 6-12 months, but did not check the man’s cholesterol within that time frame.

By 2004, the man’s cholesterol levels had improved but were still high. The doctor recommended that the man continue following the new dietary approach and planned to check his cholesterol in a few months. Again, the man was never tested.

In 2006, the man saw the doctor again for a different reason. Again, the doctor didn’t order retesting. Later that year, after kayaking with his family, the man, only 48 years old, died of a heart attack. A major artery was 95% blocked, and he died of severe multifocal coronary atherosclerosis, an artery blocked by cholesterol buildup. The man’s wife filed a notice of claim against the doctor, alleging professional negligence and wrongful death. The estate also made a claim against the primary care facility, that employed the doctor on a vicarious liability theory.

Under the Maine Health Security Act (MHSA), the estate first had to present its claim to a medical malpractice prelitigation screening panel. The three-person panel conducted a testimonial hearing, which included expert witness testimony on the standard of care and causation. The panel found the doctor had not breached the standard of care, and that his actions were not a legal cause of the man’s death. Specifically, a panelist noted that her own family physician had never scheduled a follow-up for her but had asked her to do it herself, and that she had the responsibility to call the family physician to schedule an appointment. She explained that, because of this personal experience, she found the defendant’s expert to be more credible.

The estate sued in Superior Court, again alleging professional negligence and wrongful death. Because the panel’s findings were unanimous and unfavorable to the plaintiff, they were admissible under the MHSA. The estate nevertheless, asked that the evidence be excluded because it was not consistent with the evidence presented at trial and based on off-record information. The trial court, however, permitted the screening panel’s findings to be introduced.

The jury found the doctor negligent but did not find his actions to be the legal or proximate cause of the man’s death. Judgment was entered for the doctor and primary care facility. The estate appealed to the Maine Supreme Court.

With respect to the estate’s argument that the panel’s findings were inconsistent with the evidence, the Court held that the MHSA requires that proceedings and evidence before the panel remain confidential, so the Court could not determine whether the panel’s findings were inconsistent with the evidence. The Court found the trial court correctly declined to consider the evidence presented to determine whether the panel’s findings were inappropriate.

The Maine Supreme Court agreed with the estate that the Panel should not have considered evidence outside the record and had violated the MHSA and procedural rules in doing so. The panel had explicitly relied on the panel chair’s experience with her own physician in order to make the determination that the defendant’s expert was more credible regarding the practices of reasonable physicians. The Court explained that this violated the estate’s due process rights. Therefore, the court had abused its discretion by permitting highly prejudicial findings to be presented to the jury. The judgment was vacated.

If you are hurt due to medical negligence, you should consult a Maine personal injury attorney about filing a claim. It is better to consult a personal injury attorney before you file a claim so that you do not make any admissions during the claims process that could undermine your lawsuit should it be necessary to bring one. At Briggs & Wholey, our knowledgeable attorneys are available to answer any questions you may have. To schedule a free consultation with an experienced advocate, please contact Briggs & Wholey, LLC at (888) 596-1099 or through our website today.