Litigating MIST Cases

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.

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! 

Low Back Pain Updates

If you have a client with low back pain from a MIST case, you should read these reports. A study from the American College of Physicians and American Pain Society and published in the Annals of Internal Medicine talks about several areas of interest:

1. Diagnosis and Treatment;
2. Nonpharmacological therapies; and
3. medications.

There is some great information here. As an attorney representing people with these injuries, you need to make sure that you understand the medicine. You need to explain it to your client and be able to explain it, most importantly, to the jury. A good adjuster will know it, and you need to know it too.

What others are saying about the book

My good friend and trial lawyer extraordinaire Ben Glass wrote a piece in his Great Legal Marketing newsletter about the book. (By the way, if you are a personal injury attorney reading this, you MUST look at Ben’s materials. They are the best on marketing a personal injury firm.) Here it is:

You know I read a lot and am constantly recommending and giving books to my Mastermind group. Mostly, though, those books are about marketing and mindset. However, the book I’m recommending here is about neither. It’s actually a valuable book that would help many of you in your law practices.

Litigating MIST Cases: A Practical Approach was written by Jonathan Stein, a personal injury lawyer who lives and practices in Elk Grove, California. Jonathan is a charter member of GLM and is a smart marketer and good lawyer. Jonathan worked as an insurance adjuster during law school and first practiced in a firm that represented insurance companies. He settled hundreds of MIST cases and truly knows insurance company secrets.

MIST stands for “minor impact soft tissue,” a phrase that was coined by the insurance industry several years ago and that has been adopted by plaintiffs’ lawyers. Typically, vehicles involved in these crashes seem to have minimal damage. The insurance industry has used “MIST” in its propaganda to convince people (who will eventually be jurors) that plaintiffs in MIST cases are not really injured since there is not much body damage to the cars.

For some reason that many of his colleagues cannot fathom, Jonathan focuses his personal injury practice on MIST cases. His colleagues don’t understand what Jonathan is doing, because MIST cases have notoriously low value and are difficult to handle. Insurance companies make very low offers and then love to make lawyers go to trial because, if you have to try the case, you will lose money. Unlike many lawyers who have quit accepting MIST cases, Jonathan has found a way to help this population and have a thriving law practice.

I have read Jonathan’s book and recommend it highly. Frankly, a personal injury lawyer who does not handle MIST cases will benefit from the strategies and information Jonathan discloses. Jonathan’s book reads like one written by an experienced trial lawyer, which he is. He “tells it like it is” about handling these cases. He bluntly tells the reader that these cases are individually of low value and difficult because the insurance company makes them so. Nevertheless, he supports the importance of representing this segment of the injured population and declares that if you do many cases – not just one – you will help many people and make money.

The book is well organized and easy to follow.  In cogent and clear fashion, Jonathan reveals strategies for negotiating this specific type of case with insurance companies. True to the kind of guy Jonathan is, though, he goes well beyond the discussion. He has given us loads of forms, including a checklist, letters to use when initially gathering information, examples of various demand letters and responses to insurance company denials (with explanations for when to use each one), complaints, discovery and motions in limine. Jonathan has developed and actually uses these forms and techniques in his practice so, basically, he is revealing in this book lessons he has learned during his years of practice.

In short, I would recommend you buy Jonathan’s book and add it to the shelf where you keep the practice manuals you frequently refer to. Better yet, buy one for each of your assistants. After all, they spend most of their time doing what this book teaches them to do and they will find the book written so a real person, not just a lawyer, can understand it.

You (and your staff) will benefit from having this litigation tool nearby. Let me know what you think of his book.

About the Author: Ben Glass is America’s premier authority on effective, ethical and outside-the-box marketing for lawyers. While Ben is a personal injury and medical malpractice attorney, he has coaching and mastermind members who practice estate planning, criminal and traffic defense, worker’s compensation, ERISA litigation, worker’s compensation and more. He is also the author of the Ultimate Personal Injury Marketing and Practice Building Toolkit. (http://www.ethical-lawyer-marketing.com)

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.

Do adjusters care about studies?

I had someone ask me if the studies about accidents, such as by Croft and Freeman, are useful to cite in demand letters or reports from treating doctors. My response: no. Here is more of my response:

The adjusters are familiar with those studies, but they don’t really have an effect on the case. Adjusters have been trained that these studies are nonsense. The Croft and Freeman studies are good, but they are not convincing to the adjuster. I think that by including them you may be tipping off a new adjuster to the fact that it is a MIST case. (Believe it or not, some new adjusters don't know they are supposed to report MIST cases to a supervisor and they handle the claim like any other claim.) And, experienced adjusters are just not going to care. Its sad, but scientific literature doesn’t mean much these days.

Don't waste your time, energy or money adding this to your demand. It is not going to change the amount of the offer.

Article: Why injuries occur in Minor Vehicle Damage Collisions

From Janabeth Taylor comes another great article.  The article discusses some of the myths behind minimum impact junk science. From the abstract:

Analysis of the underlying math and physics reveals that reliance on vehicle damage alone to determine the severity of a collision is invalid. Discounting injuries based on lack of vehicle damage is not supported by either the laws of physics or the empirical data available.

Give this a read and use it to fight the junk science that makes these cass more difficult.

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.