WHAT EVERY ATTORNEY SHOULD KNOW ABOUT PERSONAL INJURY LAW

Even attorneys who have never filed a lawsuit are likely to be asked for advice at some point in their careers about personal jury law. If a friend, relative or business client sustains injury in a vehicular collision, it’s a good idea to have some familiarity with the field in order to counsel those seeking your assistance.

Personal injury law has its roots in the common law and as such, is subject to subtle shifts as society changes. In recent years state legislatures have added (and changed) statutes affecting this field as well so even those who limit their practice to “PI” remain challenged to keep abreast of current law. But here are 5 points to keep in mind when asked about an injury claim.

(1) Statutes of Limitation. There are deadlines in this world and then are true deadlines. The deadline to file a lawsuit is governed by statutes of limitation in almost every state and the failure to file within the allowed timed constitutes a complete bar to the suit --regardless of its merits. For example the statute in Ohio for claims involving personal in jury and property damage is RC 2305.10. That law says that such suits must be filed within 2 years from the date the cause of action “accrues”. That means the date when the injury occurs unless there is an exception to the rule (example: the date when he realize you are injured from exposure to a toxic chemical). There are different time limits in every state so don’t make the mistake of assuming a claimant has two years to file a suit in states like Tennessee which has a one-year limit.

Medical malpractice has its own statute of limitation even though the claim involves personal injury. The general rule is one year after the cause of action accrues. See RC 2305.113. There are some court created and statutory exceptions to this rule.

(2) Insurance. Handling a personal injury case requires a basic knowledge of liability insurance coverage and claims practices. Very few uninsured at-fault motorists have sufficient “walking around money” to pay even a modest injury claim; furthermore, they could file bankruptcy to discharge their obligation even after a judgment. While it is “the law” that all drivers must have insurance, please note that in Ohio one can comply with this law by having insurance coverage limits of only $25,000 per person. If the wrong-doer’s insurance carrier offers its policy limits, keep in mind that the client can attempt to pursue an additional recovery from his own insurance company if the client has underinsured motorist (UIM) coverage. It is possible for the practitioner to inadvertently jeopardize this extra coverage, so one MUST review of the terms of the client’s own policy language before advising.

(3) Case evaluation. One would question if there ever was a time that an attorney could simply collect the accident-related medical bills and multiply that number

by x and arrive at a settlement figure. Today in Ohio, there would be a debate as to what number to plug in for the medical expenses: The amount listed on the bill your client receives or the amount accepted by the hospital/doctor as payment in full? At trial, the jury is now permitted to hear both numbers on each medical bill per the decision in Robinson v. Bates a few years ago. The rules of evidence must still be applied with regard to this issue but the Robinson decision affects every injury case in Ohio where the Plaintiff has health insurance.

The attorney must have a working knowledge of anatomy and medicine to understand the medical records which support the claim. And of course the real work here is putting a price on intangibles that cannot be purchased by the pound at the grocery – things like pain and the inability to walk unassisted. Studies of verdicts/settlements of similar cases can help but the amount of compensation justified is unique to the client.

It’s called “personal” injury for that reason.

(4) Subrogation/reimbursement. Even if the case is settled, there are more issues to deal with, including what amount of the settlement must be carved out to reimburse the entity (Blue Cross, Paramount, the state Workers Compensation fund, the Medicare program) that had paid some or all of the Plaintiff’s bills while the case was pending. Attorneys failing to follow the language of a reimbursement clause in the client’s health insurance contract can lead to the client being sued for money owed. This issue has become more complex in recent years with changes to federal law and needs to be addressed early on – before a final settlement amount is agreed to. Similar concerns exist for amounts promised to medical providers under a letter of protection or simply unpaid medical bills that the client wants you to “take care of” as part of any settlement.

(5) Contingent fees and related issues. Traditionally, representation of wrongfully injured clients has been undertaken by utilizing a contingent fee contract, with 33.3% of the gross recovery being the most common calculation. That means no fee – regardless of the time expended – if you try a “who ran the red light” case to verdict and do not prevail. Contingent fees are permitted by the Ohio Rules of Professional Conduct, but if the client is a minor, it will be necessary to have the fee agreement approved by the Probate Court – along with the settlement itself.

Rule 1.5 (e) of the ethical rules addresses the requirements of dividing a fee among lawyers not in the same firm. The comments to the Rule 1.5 make it clear division of a fee facilitates association of 2 or more lawyers “in a matter in which neither alone could serve the client as well”.

Given all of the above, attorneys not comfortable litigating injury claims should keep in mind a simple rhyme: “When in doubt, refer it out”. You – and your potential client – will be well served with a referral to an experienced trial lawyer in the field. Alternatively, if you chose to handle the matter yourself keep in mind there are plenty of lawyers in Toledo whom you can turn to for advice.

Jim YavorcikOriginally published in the Toledo Bar Association News, 2013.