A lot of my fellow trial lawyers are up in arms over a recent D magazine article purporting to tell the story of a claim and lawsuit after the author was involved in a "minor car accident." The article is the author’s criticism of the civil justice system after he hit someone and was sued. While the article is completely one-sided, I think there are things that we can all take from it.
First I want to address the defendant’s claims about the plaintiff’s injuries. The author mocks the plaintiff’s "soft tissue" injuries when he simply "nudged" another car and neither car had any significant damage. I don’t mind the author believing that. Insurance companies have been amazingly successful at marketing this theory to people (even creating LIST (low impact soft tissue) and MIST (minor impact soft tissue) acronyms to help people remember). I don’t really have a gripe with the author for being duped by insurance company’s propaganda.
But it’s just wrong. Most of the recent literature finds that there is no relationship between vehicle damage and injury. (Drs. Centeno, Freeman and Elkins, A Review of The Literature Refuting the Concept of Minor Impact Soft Tissue Injury, Pain Resource Management, Summer 2005; Robbins, Lack of Relationship Between Vehicle Damage And Occupant Injury, SAE 970494). Don’t forget, a person can herniate a disc by something as simple as sneezing. And the literature also shows that these soft tissue injuries are real. Even without broken bones or something that shows up on x-rays, much of the recent literature finds that 15-40% of patients with neck pain after a car wreck develop chronic, life-long pain. (Drs. Schofferman, Bogduk, and Slosar, Chronic Whiplash and Whiplash Associated Disorders: An Evidence-Based Approach, Journal of the American Academy of Orthopaedic Surgeons, Oct. 2007.)
But I don’t want to get into a fight about the science; I want to talk about what we can learn from the process.
First, and many plaintiff’s lawyer may not be happy with me saying this, but there is some truth to the story. I don’t know if the parties involved were in a scam, but there are far too many chiropractors and lawyers working together to "manufacture" claims. I’ve written on this practice numerous times, and I hope everyone can learn from the article to avoid the scheme. If you’re in a wreck, and you get a call from someone that’s going to help "refer you to medical care," then run. Do not pass Go, and do not collect $200.00. Protect yourself and avoid these types of scams. Get a reputable lawyer; get someone you can trust. Fortunately, the Texas Trial Lawyers Association lobbied hard last session to get legislation passed limiting barratry so maybe there will be relief in sight.
Having said that, the author doesn’t take any responsibility for the conduct of his insurance company or his lawyer. It appears that the plaintiff incurred $5,200 in bills for the medical care he received as a result of the wreck. At a mediation, the insurance company offered $500.00 to settle the case. This type of offer forces the case to go to trial. One of my favorite mediators in town says that as a plaintiff, the best offer you can get is $0 or the equivalent of $0 (like in this case) because then you know you have to try the case. There are no hard questions about settling.
In this case, that $500 offer from the insurance company forced the case to trial. The author concludes "my lawyer cost the insurance company $11,875 (95 hours at $125 per hour), and a couple of shady medical clinics got $5,300. The case occupied the Dallas County court and staff intermittently for two and a half years, and six jurors missed two days of work." And he is blaming the plaintiff. Take some responsibility. That $500 offer at the mediation from the insurance company forced the trial. The insurance company offer (and insurance companies systematically make offers in cases like this) cost themselves the attorneys’ fees and cost the County court and staff time.
I know you’re thinking, "but with those shady medical setups, that $500 was reasonable." Well, the jury didn’t think so. The jury awarded the plaintiff the full amount of his medical expenses, plus a little more. When we evaluate settlement offers, we always evaluate them against what we think a jury would do. In this case, the jury thought the $500 was wrong. The adjuster got it wrong. If the adjuster had offered a more reasonable amount, I’m confident the lawyer would have stopped beating his chest and the case would have settled.
The author also didn’t seem to understand another of the jury’s decisions. In Texas, claims must be brought before the statute of limitations expires. In addition to filing suit before limitations expires, you need to either have the defendant served before the statute expires or show that you were diligent about serving the citation. In this case, the defendant argued (and probably rightfully so) that the plaintiff wasn’t diligent in serving the citation. But the jury found diligence. Again, the author takes no responsibility, claiming that the jury didn’t understand the issue. But again, it’s his lawyer’s job to make sure the jury understands the issue. If the lawyer didn’t properly explain the charge to the jury, he has no one but himself to blame.
And I think we can also learn about framing a story. When the author told the lawyer that they had lost, the lawyer responded, "We lost but we won…The guy wanted $25,000 and got pocket change." Notice the lawyer didn’t say, "The insurance company wanted to pay $500, but paid $5,990 (and over $11,000 to me) instead." It’s all about how you frame the story.
What I’m waiting for is to hear from D magazine (or maybe some of you) the stories where the plaintiffs were injured and they had to endure ridiculous, frivolous defenses or claims from the defendants. Unlike the sitaution in this case, those frivolous defenses seem to be prevalent in my practice.