Litigating MIST Cases

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.

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! 

A few updates on MIST cases

I just wanted to share a few updates with you on MIST cases.

A Caliornia attorney got a seven figure verdict on a MIST case. The jury did not buy the junk science defense from the insurance company.

A reader of my book recently hit for $250,000 on a MIST case with MD and DC treatment. Yes, it does work.

Recently, I sent out a demand to a self insured corporation that uses a major insurer as its claims adjusting company. I sent a cc to the risk manager and one to general counsel. The adjuster called and made some ridiculous offer. I replied with a letter, again sending the copies to the risk manager and general counsel. The risk manager called me. Settled the case for four times the specials.

Last update: I settled a case with a self insured company after filing. The settlement was for a minor and approved by the court. The settlement was 10 times the specials with $1,500 in property damage. (I had previously settled the case for the driver, the child's mom.)

Why are these results happening? Because plaintiff attorneys are learning to debunk the junk science and are taking these cases. Look at any industry and you will find the industry leaders do one thing: they learn all about their competition. The attorneys who are successfully handling MIST cases are learning all about the insurance company, handling these cases in the same manner, and studying how to handle them effectively. There is a way to handle these case effectively and efficiently to help your clients. But you must educate yourself.

The attorney and chiropractor

Face it, most MIST patients end up at a chiropractor. And when they do, the chiropractor has all kinds of standard forms to fill out, just like when the patient goes to an MD. The one big difference: the chiropractor always asks who the attorney is on the file. And they usually get this information right next to some very good information about the accident.

The downside: the form then becomes useless. If you send in a form that lists you as the attorney, the adjuster will immediately conclude, rightly or wrongly, that either you referred the client to the chiropractor or the chiropractor referred the client to you. Under either situation, the case now has less settlement value.

The solution: ask the chiropractors to put the attorneys information in a separate spot or on a separate form. This will allow you to send in the intake form without worrying about the adjusters faulty conclusions.

Watch those estimates

A new trend is developing: repairing bumpers. Okay, so repairing bumpers is not a new trend. But the insurance industry is pushing training for adjusters on how to repair any bumper, be it a Bentley or a Volvo, undamaged or crumpled.

I recently had a client with bumper damage. The adjuster came out and wanted to repair the bumper - even though the paint was off of the bumper. The car is a year old. They can't match the paint, but the adjuster would only give a couple of hours for repairs.

Clearly, the bumper needed to be replaced and painted to match. But, the adjuster put down for repairs because it keeps the case is a minimum impact. My client will be getting his own estimates now and those will be to replace the bumper.

Make sure you are checking those estimates on MIST cases. A replacement can add $300 or more to an estimate thus making it no longer a minimum impact.

Fee Waivers

First, what is a fee waiver? A fee waiver is a document by which you, or your client, ask the court to waive the court costs. The document is kept confidential. If granted, the court waives all costs.

Second, why do you care? Because in a MIST case, the filing of the complaint may get the carrier to increase the offer by $1,000, $2,000 or $3,000. But, if you have spent $400 on filing the complaint, that $2,000 increase is only a $1,600 increase. This may make it more difficult to settle the case.

So, where appropriate, have your client file a fee waiver and see if you can get the court to waive the costs.

New Report for Purchasers

Buy a copy of my new book and I am giving you a BRAND new, free report. This report you can use as a handout to chiropractors to provide them with 10 tips to help them treat MIST patients.

With this report, you can explain to chiropractors why they should not release their tax ID numbers, why they need to be careful on who they work with, and why they need to keep good records. There are seven other tips.

These tips will help you show the chiropractor the value in learning about MIST cases and how the chiropractor can treat the patient to help you accomplish your goal - obtain a fair and reasonable settlement for your client.

Order the book now (either paper or PDF) and you get the report FREE! This is information you will not get with any other MIST book.