Litigating MIST Cases

An update on buying the book

I have received several inquiries from employees at major insurance companies trying to buy my book. While I appreciate that they want to see my tips and tricks, I must be very clear about this:

I am not selling my book to insurance companies, adjusters, employees of insurance companies and defense attorneys.

I understand that they want to learn what I have learned. However, for the integrity of the book, and to keep it as a useful tool to Plaintiff's attorneys, this always has been and always will be my rule.

The Allstate Motherlode

I admit I have not had time to read through all of this yet. After all, it is 150,000 pages. But, here are Allstate's Colossus documents and information from McKinsey. More comments to come after I have summarized it all.

Common Errors in Determining Impact Speed

Here is an article that was sent to me that discusses errors in determining impact speed. There are some great pieces of information in here. You should read this and use it in cross examining and deposing expert witnesses.

Thanks to Janabeth Evans Taylor for the article.

Referrals and Chiropractors

I am asked often about whether an attorney should have a select group of doctors to refer cases to or accept cases from. (By the way, if you are an attorney and you want to market your practice differently than everyone else, check out this website from Virginia Attorney Ben Glass. You will stop worrying about getting referrals from doctors.)

I would limit this or avoid it. In the greater Sacramento four county area we have 3 million people or so. We have thousands of chiropractors. Why can’t I do business with most of them? (There are some who I shouldn’t do business with, but those are different reasons.) Sure, I have one or two who are really good who I love to work with. Good notes, good reports, fair bills. Amazingly, the one I am thinking about right now? Never asked her to reduce a bill. Well, I did just ask her to knock 52 cents off a bill, but that was only because it made my math easier. She is great and I think the world of her, but there is a downside…………

Insurance companies now track data like no one’s business. They might put the NSA to shame with the amount of data they collect. Typical scenario: Claimant is struck by a car. A claim is set up with name, date of birth, address. Heck, some claimants, before they get an attorney, will give up a SS#. Now, insurance company can track any prior claims. We all know this happens. But………….

Claimant treats with you. You give your bill to the attorney. At the top of your bill, you list your EIN or some other identifying number. Now, they have a number to plug in for you. Of course, before I can get paid, I have to give up my EIN thanks to the IRS. Now they can track me. So…………..

Next time I send in a letter of representation, they put me into the system and they know which docs I work with. If they see a pattern of me continually representing Dr. X’s patients, they refer the file to SIU. There may be nothing wrong and everything may be on the up and up, but the case is now substantially harder to settle.

That is why I constantly encourage attorneys (and doctors) to have a group of people to refer to. Sure, if someone is involved in an MVA near my favorite doctor and they have no place else to go, I will give out her name. But, in the course of a year, we may only have 6 or 8 cases together. Not a ton. But, it is the best relationship I have. I know that she will be fair, reasonable and give me documentation to settle the case. I also know that she is 100% supportive if I tell her I need to file, serve or even try the case. Complete trust in my ability to practice law. At the same time, she knows she is going to get paid. I will pay her in full before I take a fee. She knows I know what I am doing and will get the client the best possible settlement. It’s a win-win and has nothing to do with volume.

Avoid referrals with one or two or a small group of doctors. The bigger your pool, the easier it is to avoid the SIU trap.

Allstate Barred in Florida

So, not quite MIST related, but if you want to handle MIST cases, you need to know what is going on in the industry. The latest: Allstate has been barred from selling policies in Florida.

Here are three stories about this. One from the Palm Beach Post, and then two from South Florida Sun-Sentinel, including one about how Allstate was surprised by this.

Why do you care? Allstate was really the first insurance company to push the MIST defense. Prudential was at the head of the curve, but they are no longer in business. Allstate, however, really was the first one to set up dedicated units and take a no-pay approach.

What to do with the information? First, it is great marketing. You will be able to explain to clients why it is important now to take Allstate cases. Second, especially for my Florida readers, you may be able to get some decent settlements now without incurring extra costs. Allstate has its hands in a few pots and the claims payments may increase in an effort to avoid further scrutiny. This should apply nationwide, but particulary in Florida.

New Practice from Insurers

A major insurer is introducing a new policy on MIST cases. Apparently, this insurer has decided to make our lives more difficult and more work. How, this time, you ask?

This insurer refuses to settle any MIST case without getting the bills directly from the health insurer. Why? Because then they are placing the name of the health insurer on the check. In California, at least, the health insurer does not have a lien, but only a right of reimbursement. So, why do they do this?

It creates one more issue for the attorney to deal with. By creating new issues, they are causing the attorney to work more. More work for the same amount of money makes a case less attractive. And that, my friends, is why they are doing it. They want to force these cases away from us.

Remember, they do not need the bills from the health insurer. You just need to provide something showing the reasonable charges. There are outside vendors who will do this for under $100. There is no need to wait and create more work, especially since some health care providers are taking six months to provide the bills (another reason for the insurance company to insist on those bills - it makes our cases take longer).

Don't be fooled by this. If they refuse to settle, take an aggressive approach with the insurer and their insured. 

A new blog from an appellate perspective

It is not often that I am going to tell you about other blogs. But there is a new one that I think you should look at. It provides insight into the life of an appellate attorney. And it gives you tips on what to look for regarding appeals in your case.

If you are curious about appeals or preserving issues for appeals, there is an interesting new blog out by Donna Bader, An Appeal to Reason. Her topics include how appellate attorneys fit into the picture, the role of appellate attorneys and why recycling your post trial briefs is a bad idea.

This is a great resource and an interesting look into the role of the appellate attorney. Take a look at it.

New Article on MIST Cases

The ABA recently published my newest article on MIST cases. This article provides some basic tips on MIST cases. It is not a supplement for reading the book, but it does give you some basic tips. The outline appears below:

10. Read the literature.
9. Talk to the potential client.
8. Learn to use the internet.
7. Take a look at the cars.
6. Get to know the treating doctor.
5. Set reasonable expectations.
4. Get your discovery done timely.
3. Don't waste money.
2. Be aggressive but fair.
1. Try the cases.

Take a look at the article and let me know what you think.

Good time to settle cases

So, you want to settle a MIST case? Now is the time.

People want to settle claims between Thanksgiving and Christmas. Your clients are looking for money to buy presents. Insurance companies want to get claims off of their adjuster's desks and clear the books. Thus, it creates "The Perfect Storm" where claims can be settled.

So, if you have a claim and are trying to get it settled, now may be a good time to make a demand. You may get a bit less, but if you want to get it done, get out a demand letter this week.

Patience Pays Off

I thought I would share a story with you. I have been working on a MIST case for 3 years now. Client treated with her MD and then a new chiro. The chiro treated her on a lien. When she was done, we made a demand and the offer was zero. Filed the lawsuit and client’s deposition was taken. Poor would be an understatement. But, that is how it goes. Offer went up a bit. We arbitrated the case. (Most cases in

California

go to a non-binding judicial arbitration.) Arbitrator’s award: 5x the last offer from the insurance company plus costs. Yesterday, the adjuster called and offered to pay it in full if I would waive entry of judgment against their insured. Fine with me.

Moral of the story: a little patience and letting the attorney work up the file properly gets the cases resolved.

Slow Speed Impacts Still Cause Damage!!

Surprise! I know, this must have caught everyone off guard. You can cause damage in a 3mph collision. How much damage? Over $4,500 on a Lexus IS and over $5,200 on an Infiniti G35. A Volkswagen Passat had over $4,500 in damage, as did the Pontiac G6 (did anyone ever buy a G6?), and the Nissan Maxima.

The interesting part is that this study came from the Insurance Institute for Highway Safety, an auto insurance industry sponsored group. Their study, reported in the LA Times, shows that cars are sustaining more than just bumper damage in 3 mph collisions. Grills, hoods and fenders are also sustaining damage.

You can now use this study to cross-examine defense "experts." These experts opine about the force of impact and speed of the vehicles based solely on the amount of damage. Well, if an Infiniti sustaines $5,200 in a 6 mph collision, how fast was the collision if there is $2,500 in damage? Slower? Faster? You don't know because there are many more factors that come in to play.

Two other points to keep in mind: Most cars do not have steel reinforced bumpers like they did 10 years ago. And with more cars, the bumper is being designed into the body of the vehicle so there is no bumper.

In your next MIST case, make sure you ask the defense expert about this report. My guess: he has never heard of it!