Since our article of August 31, 2008, which discussed whether an injured motorist can recover as medical bill damages the amount of his/her bills, or only the reduced amount that his/her health insurance paid for such bills, a new and important appellate case has been decided. In our August article we told you of the case of Steidinger v. Hilton, the first Colorado Appellate decision to address this recurring issue. That case, however, did not fully settle the issue because it was issued as a “non published” decision, which means its importance as legal precedent was limited.

The Colorado Court of Appeals has now issued a published decision on the issue that is controlling precedent. In Tucker v. Volunteers of America the Court held that a trial judge was wrong in limiting the amount of medical bill damages recoverable to the reduced amount of medical bills paid by the injured person’s health insurance. The Court of Appeals reasoned that the  person at fault for injuries should not profit because his victim happened to have health insurance. The Court further explained that if the person at fault profited from health insurance that his victim had, victims who did not have health insurance would end up recovering even more damages than victims who had health insurance. The Court found such a result made no sense.

By Gary S. Craw

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If you are involved in an accident, the following tips are recommended:

1. GET HELP IF NEEDED. If anyone is injured call 911. Medical care within the first hour after an injury is critical.

2. NOTIFY THE POLICE. This is required by law in most states before you can leave the scene if anyone is injured, or there is any significant property damage. It’s a mistake to just exchange names and phone numbers with the other driver and leave the scene. Call the police. Be sure to get the name of the officer at the scene and write it down.

3. GET CRUCIAL INFORMATION. Get contact information from each of the other drivers involved in the accident. Jot down their name, address and phone number. Make a note of the color, make and model of their vehicle, and get their license plate if you can. The police officer can help you get all this information, and will often have a form for you to exchange with the other driver or drivers involved. Do not be afraid to ask such information or the form.

4. IDENTIFY WITNESSES. Get the names and contact information of anyone who saw the accident. If you can, do this quickly. Often, people who saw the collision will stop for a short time but leave before the police arrive. Other motorists, passengers or pedestrians can be critical witnesses. Get their name and phone number.

5. DO NOT DISCUSS FAULT. Do not blame the other driver even if they were clearly at fault. It may just start an argument. But if another driver admits they were at fault, make a mental note of it. When you get home, jot down precisely what they said. Even if you feel you may have been partially at fault, do not say anything that admits your feeling. Fault is often a complex determination based on the facts and complicated laws. Leave that issue for the police to decide – or an attorney, if necessary.

6. WRITE A NOTE TO YOURSELF AFTERWARDS. After the accident write a note to yourself (and possibly for your attorney if you need one later). Include all the information you have gathered and can remember while it is fresh in your mind. Explain how the accident happened as best you can. Drawing a sketch or diagram of the collision will be a helpful memory aid later. It may be months, or even years, before the insurance companies fully resolve any claims.

7. CALL YOUR INSURANCE AGENT. All insurance policies require you to notify your insurance company. This must be done shortly after the accident. Unnecessary delay in notifying your insurance company about a crash can result in a denial of your right to insurance benefits and protection.

8. STATE ACCIDENT REPORTS. If anyone is injured, or there is significant property damage, you must file a State Accident Report in most states. The form, with directions, can be obtained from a police department. This report must be filed within 10 days after an accident in Colorado.

9. TAKE PICTURES. “A picture is worth a thousand words.” Today most of us have a camera in our cell phones. If you can, and it is safe, take pictures of the vehicles before they are moved. Pictures of the damage and position of the vehicles can be very important. They can prove how the accident happened and document the force of the collision. This can be important evidence if the accident caused injuries. If you’re not able to take pictures, ask one of your passengers who is alright or a witness, to do it for you. After you get emergency care and are home, remember to take pictures of your injuries – any cuts, bruises or bandages, and any casts or crutches. It is particularly important to take a picture of any seat belt bruise on the front of your shoulders and chest. This bruise may not develop right away. Taking a picture of it can keep the other side from claiming that you were not wearing a seat belt.

10. PROTECT YOUR RIGHTS. To protect your rights you must act quickly and correctly after a motor vehicle accident. Deciding fault can be complicated. Insurance coverage, and how to get your medical bills paid, can be very confusing and frustrating. Insurance adjustors may call and ask you to give them a tape recorded statement. Do you have to do that? Should you do that? You may have many questions about your rights, and your obligations to insurance companies and their representatives. You may have questions about whether the insurance companies are treating you fairly. Don’t jeopardize your rights. CALL AN EXPERIENCED ATTORNEY who specializes in accident and injury claims for advice and answers to your questions.

When an accident happens and somebody is hurt, follow the above tips if you can. Afterwards call an attorney for further help and advice. Doing these things will protect your rights, avoid common mistakes that delay or prevent you from getting your medical bills paid or your lost income reimbursed, and help ensure that you are treated fairly by the insurance companies.

Please contact us with any questions you may have at 719.471.3848. You can also email us HERE with your inquiry or questions. Our website can be found at www.GaddisKinHerd.com.

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It appears that the money people invested with Madoff was simply stolen. No underlying assets remain for his investors. The victims of Madoff’s $50 billion fraud will probably not get back any of their initial investment. Because of this, Madoff’s investors are much worse off than those of us whose securities have suffered a serious market decline, but may appreciate again one day.

Keep in mind that if your investments are placed with a legitimate broker, they may be covered by SIPC insurance. The SIPC (Securities Investor Protection Corporation) protects up to $500,000 of your securities investments in the event they are stolen, or your brokerage firm closes due to bankruptcy. SIPC insurance covers stocks, bonds, mutual funds shares and most registered securities. Some brokerage companies even provide additional insurance in excess of the SIPC insurance amount. However, SIPC does not cover all investments. For example, unregistered investment contracts, unregistered limited partnerships, fixed annuity contracts, currency, and interests in gold, silver, or other commodity futures contracts or commodity options are not covered by SIPC insurance.  It is important to remember that SIPC does not protect against market losses. Nor does it cover your losses if you hold the stock of a company that goes bankrupt.

The Madoff scheme reminds us to heed basic lessons about investing. While our firm does not provide investment advice for our clients, one of the primary and better known rules of successful investing is diversification. Too often this basic principle is overlooked when a particular investment is highly profitable. It’s wise to keep the benefits of diversification in mind even when some of your investments are soaring.

Years ago there was a popular book by Robert Fulghum entitled “All I Really Need to Know I Learned in Kindergarten.” A variation on the theme of that book is that life’s most important lessons are often those we learned as children.  We can probably all recall our parents telling us life lessons like:

1.                   If it sounds too good to be true, it probably is

2.                   Slow and steady wins the race

3.                   There is no such thing as a free lunch

4.                   Don’t put all your eggs in one basket.

Even today these old sayings contain truth and wisdom that can guide us to successful investing.

The current economic times are difficult for all of us, and they can be devastating for anyone who is victimized by a fraudulent investment scheme.  If you have confidence in your investment advisor, sit down with him or her and review your current investments. Keep the suggestions, above, in mind and be sure to ask questions. Then determine if the recommendations of your investment advisor “hold up” and meet your particular needs and comfort level.

Larry Gaddis, 12/28/08

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On October 14, 2008, HealthDay News reported that the “death rate at top-ranked U.S. hospitals is 70 percent lower than at the lowest-ranked hospitals, according to a study that examined 41 million patient records at the nation’s approximately 5,000 hospitals over three years.”

This conclusion was based on the 11^th Annual HealthGrades Hospital Quality in America Study, which ranked hospitals from 1 star to a maximum of 5 stars.

The study also concluded that 237,420 Medicare patient deaths could have potentially been prevent from 2005 to 2007 if all hospitals in the USA performed at the top-rated 5 Star level. More than half of these deaths were caused by only 4 conditions: sepsis (system wide infection); pneumonia; heart failure and respiratory failure.

Geography played a significant factor in the risk of death according to the study. Illinois, Indiana, Michigan, Ohio and Wisconsin had the lowest overall death rates; whereas Alabama, Kentucky, Mississippi and Tennessee had the highest.

An author of the study commented that “Geography should not be a major factor in patients’ outcomes. If our nation’s hospitals are to close the quality gap and guarantee an equally high level of medical care for every patient, no matter where he or she lives, it will require a commitment by our nation and its communities to demand more from quality improvement” commented Dr. Samantha Collier, HealthGrades’ chief medical officer.

“Until then, it is imperative that anyone seeking medical care at a hospital do their homework and know the hospital’s quality rating before they check in,” Collier said in a news release issued by HealthGrades, a Colorado-based independent healthcare ratings organization found at www.healthgrades.com

You can find Heathgrades’ 2009 quality ratings for all private hospitals in the USA, including those in the State of Colorado, at their above web site.

Please contact us with any questions you may have at 719.471.3848. You can also email us HERE with your inquiry or questions. Our website can be found at www.GaddisKinHerd.com.

An example may help make this issue clearer. Suppose you were seriously injured in a car accident by a driver who crashed into the rear-end of your vehicle while you were stopped at a red light. And suppose the medical bills for your injuries amounted to $30,000.00. Because you had health insurance, your health insurance paid for your medical bills. However, your health insurance only had to pay two-thirds of the actual medical bills, or $20,000.00. How much are you entitled to recover for medical damages from the negligent driver: the $30,000.00 in medical expenses billed, or the $20,000.00 in medical expenses paid by your health insurance company?

Until recently the answer was unclear because there was no case law decisions from Colorado’s appellate courts. Most of our trial courts held that you are entitled to recover the entire $30,000.00 in medical bills caused by the car accident. The reasoning is that the negligent driver who injured you should not get the benefit of insurance coverage that you obtained and paid for. If there is a “windfall,” it should be received by the person who paid for the health insurance – not the negligent driver who caused the injuries and necessitated the medical bills. Some of our trial courts, however, held that you can only recover the portion of your medical bills actually paid by your health insurance company.

Finally, the issue has been addressed by an Appellate Court in Colorado. On August 28, 2008, the Colorado Court of Appeals decision in Steidinger v Hilton was issued. In that case Steidinger was a passenger in a car driven by Hilton. As a result of Hilton’s careless and negligent driving, Steidinger was seriously injured and incurred $53,000.00 in medical bills. Steidinger had medical insurance that paid off his bills for the reduced amount of $25,000.00. At trial the question was whether Steidinger should recover $53,000.00 in medical damages, or only $25,000.00 (the amount paid by his health insurance). The trial court ruled that Steidinger was entitled to recover the full amount of his medical bills, $53,000.00. The jury verdict gave that amount to Steidinger. Hilton and his insurance company appealed claiming that the verdict was excessive and resulted in an unfair “windfall” to Steidinger. The Court of Appeals disagreed with them. Relying on a Colorado Statute, the Court found that Steidinger was entitled by law to recover the full amount of his medical bills – not just the reduced amount that was paid by his health insurance.

This case is important because it is the first appellate decision addressing this issue, which comes up in nearly every car accident injury case since the no-fault insurance system in Colorado ended in 2003.

Strangely, the Court of Appeals decision in Steidinger v.Hilton was released as a “non published” decision. This means that it will not appear in the official law books. That is unfortunate because it is the only appellate court decision in Colorado to give guidance to the trial courts on a critical issue that keeps coming up in nearly all auto accident personal injury cases.

Please contact us with any questions you may have at 719.471.3848. You can also email us HERE with your inquiry or questions. Our website can be found at www.GaddisKinHerd.com.

The plaintiff bled to death after routine gall bladder procedure. The negligence in the case was, in my opinion, obvious. You shouldn’t end up bleeding to death over gall bladder surgery – unless there has been negligence.

This opinion of mine was confirmed by a respected General Surgeon, who is also a professor of medicine and surgery at the University of Nebraska Medical Center. The defense lawyer recently took his deposition. During the deposition the defense lawyer used only one Exhibit – a magazine article. The Article, published by a physician who is strongly against malpractice litigation, and his wife, an attorney who defends doctors charged with malpractice, was nothing less than an attempt to intimidate the our expert witness from testifying at trial.

The article said that the economic realities for most physician’s income are such that they must supplement their income from practice by testifying as an expert witnesses. The article then discussed at length an unusual decision in which a neurosurgeon was suspended from membership in the American Association of Neurological Surgeons because he served as an expert and gave testimony in favor of a plaintiff in a medical malpractice lawsuit. The article went on to cite chilling examples of other lawsuits and disciplinary proceedings against physicians who testify in medical malpractice cases.

The article plainly stated the view to which it aspired: recent decisions of courts, medical boards, and physician organizations, are penalizing doctors for testifying in medical malpractice cases, which will hopefully result in expert witnesses who testified for plaintiffs becoming an endangered species. The article called for medical licensing boards and physician’s specialty organizations to impose rigid scrutiny, and more professional discipline, on doctors who are willing to testify against other doctors; it proposed state laws that impose difficult limitations for expert medical witnesses to be allowed to testify; and, finally, it cited a medical board decision from another state where a doctor’s license was suspended for giving expert testimony in the courtroom regarding the medicine in a malpractice case – medicine which all physicians agree is an “art” and not always a science.

This article had nothing to do with any of the issues in my client’s malpractice case. The defense lawyer brought it to my expert’s attention, and went over it with him in depth, for just one purpose: to make him think twice about serving as an expert witness for the plaintiff in a medical malpractice claim against another doctor. In less socially acceptable terms, some would call such conduct an attempt to intimidate a witness.

This time it didn’t work. You have to wonder how long that will be the result of such tactics.

By Gary Craw, Gaddis, Kin & Herd, P.C.

If you want more information about this issue or other issues relating to medical malpractice cases please contact me at 800-471-3848. Or, visit our Website: www.GaddisKinHerd.com.

Please contact us with any questions you may have at 719.471.3848.  You can also email us HERE with your inquiry or questions. Our website can be found at www.GaddisKinHerd.com.

Thanks again for visiting and we look forward to speaking with you should you ever need our services.