ABA GP Solo TORT AND INSURANCE COMMITTEE NEWSLETTER December, 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair & Editor
In this Issue:
1.What to Expect in a Personal Injury Case
2 Season's greetings
3. More Personal Injury and Civil Litigation articles added to website http://njpersonalinjurylawcenter.com/:
4. WE PUBLISH YOUR FORMS AND ARTICLES
1.What to Expect in a Personal Injury Case
Compiled by Kenneth A. Vercammen, Esq
The procedures in a Plaintiff personal injury case may take from six months to several years, and a client’s patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice. The following a is portion of the details you may wish to inform your new personal injury clients after you have been retained:
Procedurally, the following events occur in most personal injury cases. First, your Attorney must complete our investigation and file. This will involve the collection of data from your physician, your employer, and our investigator. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement.
Filing of Complaint
If early settlement is not productive, then a complaint is filed, and the parties
served with notice that a claim has been made. The opposition then is given a fixed time to file what is known as an "Answer." The Answer if usually followed by a request for written interrogatories. These are questions that must be answered by the claimant with the aid of counsel. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question.
Doctor/ Treatment
It will help your case to tell us and your doctors about any injury or
medical problems before or after your accident. Good cases can be lost by
the injured person's concealing or forgetting an earlier or later injury or
medical problem. Insurance companies keep a record of any and all claims
against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.
Tell your doctors all of your complaints. The doctor's records can only be
as complete as what you have given. Keep track of all prescriptions and
medicines taken and the bills therefore. Also save all bottles or containers
of medicine.
Diary
You should keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort do you put into your employment, what activities you engage in after work, etc.
In other words, we need you to describe the changes in your working life,
your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook.
And remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family and friends, at work and at play. When you have completed this description, please return it to this office in the enclosed envelope.
Record Medical and out of pocket expenses
You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times. Your attorney will keep track of your legal expenses, which may include costs of filing, service of process, investigation, reports, depositions, witness fees, jury fees, etc.
From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date.
The Deposition
The deposition is just as important as the trial itself, and in the event you are deposed during the course of this action, you will receive detailed instructions as to procedure. After taking depositions, the case will be set down for trial. Following the setting of the case for trial, there will be preliminary conferences commonly known as pretrial hearings.
Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.
Do not discuss the case
The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.
Obviously, we cannot stress too strongly that you not discuss this matter
with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.
* Questioning: If any person approaches you with respect to this accident without your attorney's permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney's office.
* Surveillance: Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.
However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctor's advice. If you have to do things which cause you pain, this can usually be explained to the full satisfaction of any court or jury.
There are cases where the insurance agent has attempted to discredit a
personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiff's claim in court.
Kenneth Vercammen, Esq.
Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.
2 Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
See photo http://www.njlaws.com/vercammen_family_2007.htm
One of the pleasures of this holiday season is the opportunity it gives to thank many people for their friendship, goodwill and the very pleasant association we enjoy. We sincerely appreciate this relationship and are thankful for the confidence many people have shown in us. We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
In the true spirit of the season, may we all be thankful and share in the hope for peace on earth and goodwill toward our fellow man.
May the new year bring happiness and good health to you and those you love.
More Holiday cheer at this great site:
http://holidays.blastcomm.com/
HAPPY HOLIDAYS & SEASON'S GREETINGS WORLDWIDE:
Wesoly Siat, Bozega Narodzenia [Merry Christmas in Polish}
FROHE
WEIHNACHTEN
PRÓSPERO AÑO NUEVO
HAPPY NEW YEAR
FRIEDEN
GLÜCKLICHES NEUES JAHR
JOYEUX NOËL
PRETTIGE
KERSTDAGEN
GELUKKIG
NIEUWJAAR
BUON
NATALE
BONNIE ANNEE
HYVÄÄ JOULUA
3. More Personal Injury and Civil Litigation articles added to website http://njpersonalinjurylawcenter.com/:
What to do in an Accident
What to Expect in a Personal Injury Case
What is a Deposition?
Dog Bites
Uninsured & Underinsured Injury Cases
Workers' Compensation
Hit and Run Injuries
Fall Down Law in New Jersey Based on Jury Request to Charge
Accident Victims Rights: Insurance to Pay for Medical Treatment
NJ Medical Fee Schedule
Lost Wages
Submission of Bills to Car Ins.
Filing of Complaint
Investigation of Defendant Ins.
Interrogatory Questions to Plaintiff
Diary & Record keeping
Subpoenas in a Court Case
Wrongful Death
Medical Malpractice
Personal Injury: Winning Strategies - Book Available
Fighting Insurance Companies
Personal Injury Interview Form
Personal Injury Fact Sheet
4. WE PUBLISH YOUR FORMS AND ARTICLES
The American Bar Association Tort & Insurance Law Committee of the General Practice Division monitors federal and state legislation affecting rules of procedure and tort reform The committee presents and sponsors programs at the Annual Meeting often dealing in tort and litigation issues.
Articles needed for American Bar Association Tort & Insurance Law Committee Newsletter
They feature a newsletter with Personal Injury forms and articles plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Tort and Insurance Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.
_______________________
TORT AND INSURANCE COMMITTEE General Practice, Solo and Small Firm Division
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair and Past Chair
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
kenv@njlaws.com
website- http://njpersonalinjurylawcenter.com/
Personal Injury blog- http://njlawspersonalinjury.blogspot.com/
Saturday, December 22, 2007
Sunday, December 2, 2007
In Re the Contest of the November 8, 2005 General Election for the Office of Parsippany-Troy Hills
11-8-07
This election contest petition is sufficient to withstand the
motion to dismiss for failure to state a claim.
This election contest petition is sufficient to withstand the
motion to dismiss for failure to state a claim.
Pascack Valley Regional High School Board of Education v. Pascack Valley Regional Support Staff Association
10-29-07 (A-96-05)
When the parties have agreed that nontenured school employees
may be disciplined only for just cause and have defined any
dismissal as a disciplinary action subject to the grievance
procedures at the employees’ option, a mid-term contract
termination imposed as punishment for behavior that would
otherwise call for imposition of discipline falls within the
collective agreement’s definition of dismissal subject to the
grievance procedures.
When the parties have agreed that nontenured school employees
may be disciplined only for just cause and have defined any
dismissal as a disciplinary action subject to the grievance
procedures at the employees’ option, a mid-term contract
termination imposed as punishment for behavior that would
otherwise call for imposition of discipline falls within the
collective agreement’s definition of dismissal subject to the
grievance procedures.
Talib Turner v. Associated Humane Societies, Inc.
11-30-07 A-2604-06T2
Plaintiff employee of defendant non-profit animal shelter
expressed reservations to his supervisor, and through him, to
the owner, about adopting out a Doberman that had attacked its
previous owner, who then paid the shelter to euthanize it.
Instead of putting the animal to sleep, and despite plaintiff's
reservations, defendant approved the adoption, only to have the
Doberman maul its new owner to death eleven days later.
Plaintiff cooperated with defendant's internal investigation by
outside counsel and shortly thereafter, he was terminated. His
CEPA lawsuit was dismissed on directed verdict after plaintiff's
case-in-chief, the trial judge finding that plaintiff did not
have a reasonable belief that defendant's conduct violated any
public policy (N.J.S.A. 34:19-3(c)(3)), or any law (N.J.S.A.
34:19-3(c)(1) and (a)(1)) inasmuch as defendant, as a non-profit
entity, was exempt from the provisions of the Consumer Fraud Act
(CFA).
We reversed and remanded for trial, finding that for
purposes of section (c)(3), our Legislature, in a number of
enactments, has recognized the serious and widespread threat
that unprovoked dog attacks pose to the safety and welfare of
our citizens, and that there was proof that plaintiff had an
objectively reasonable belief that defendant's decision to adopt
out this dog was inherently incompatible with New Jersey's
public policy.
As to plaintiff's claim under section 3(c)(1) and (a)(1),
the fact that defendant may not be subject to the CFA is not
dispositive. A CEPA plaintiff need not show his or her employer
actually violated a specific law, rule or regulation, only that
plaintiff reasonably believes this to be the case. It suffices
that from the proofs here there appears an arguably reasonable
basis for believing that defendant engaged in activity violative
"of a law . . . involving deception of, or misrepresentation to,
any . . . customer . . . of the employer . . . ." N.J.S.A.
34:19-3(a)(1).
Plaintiff employee of defendant non-profit animal shelter
expressed reservations to his supervisor, and through him, to
the owner, about adopting out a Doberman that had attacked its
previous owner, who then paid the shelter to euthanize it.
Instead of putting the animal to sleep, and despite plaintiff's
reservations, defendant approved the adoption, only to have the
Doberman maul its new owner to death eleven days later.
Plaintiff cooperated with defendant's internal investigation by
outside counsel and shortly thereafter, he was terminated. His
CEPA lawsuit was dismissed on directed verdict after plaintiff's
case-in-chief, the trial judge finding that plaintiff did not
have a reasonable belief that defendant's conduct violated any
public policy (N.J.S.A. 34:19-3(c)(3)), or any law (N.J.S.A.
34:19-3(c)(1) and (a)(1)) inasmuch as defendant, as a non-profit
entity, was exempt from the provisions of the Consumer Fraud Act
(CFA).
We reversed and remanded for trial, finding that for
purposes of section (c)(3), our Legislature, in a number of
enactments, has recognized the serious and widespread threat
that unprovoked dog attacks pose to the safety and welfare of
our citizens, and that there was proof that plaintiff had an
objectively reasonable belief that defendant's decision to adopt
out this dog was inherently incompatible with New Jersey's
public policy.
As to plaintiff's claim under section 3(c)(1) and (a)(1),
the fact that defendant may not be subject to the CFA is not
dispositive. A CEPA plaintiff need not show his or her employer
actually violated a specific law, rule or regulation, only that
plaintiff reasonably believes this to be the case. It suffices
that from the proofs here there appears an arguably reasonable
basis for believing that defendant engaged in activity violative
"of a law . . . involving deception of, or misrepresentation to,
any . . . customer . . . of the employer . . . ." N.J.S.A.
34:19-3(a)(1).
Ted M. Rosenberg, et al. v. State of New Jersey, Department of Law and Public Safety
11-30-07 A-0578-06T3
We remanded for a more detailed articulation of reasons
where Law Division denied plaintiff's request, under the common
law "right to know" doctrine, to release approximately 2000
pages of documents. We held that the Law Division judge should
have made specific factual findings, focusing either on
individual documents or groups of documents. Without such
findings, we are unable to determine if the Law Division judge
abused his discretion. If necessary, those factual findings
should be made in a separate, sealed decision, pending appellate
review. Plaintiff has a personal interest in the release of
these public records, as the documents relate to an
investigation focused on an alleged attempt to impact
plaintiff's appointment to a public position.
We remanded for a more detailed articulation of reasons
where Law Division denied plaintiff's request, under the common
law "right to know" doctrine, to release approximately 2000
pages of documents. We held that the Law Division judge should
have made specific factual findings, focusing either on
individual documents or groups of documents. Without such
findings, we are unable to determine if the Law Division judge
abused his discretion. If necessary, those factual findings
should be made in a separate, sealed decision, pending appellate
review. Plaintiff has a personal interest in the release of
these public records, as the documents relate to an
investigation focused on an alleged attempt to impact
plaintiff's appointment to a public position.
Nicholas Impink v. David Reynes
11-29-07 A-3448-06T5
We decided in this case that a trial court may not modify a
settlement agreement using its parens patriae powers without the
consent of the parties in approving an infant settlement
pursuant to Rule 4:44-3. Instead, it may reject the settlement
if it finds it not to be "fair and reasonable as to its amount
and terms."
We decided in this case that a trial court may not modify a
settlement agreement using its parens patriae powers without the
consent of the parties in approving an infant settlement
pursuant to Rule 4:44-3. Instead, it may reject the settlement
if it finds it not to be "fair and reasonable as to its amount
and terms."
Thomas and Karen Janicky v. Point Bay Fuel, Inc.
11-28-07 A-1165-06T3
The sole purpose of a certification of finality under Rule
4:42-2 is to permit execution on a partial summary judgment
fully adjudicating a separable claim for affirmative relief.
The appealability of an interlocutory order certified as final
is solely an ancillary consequence of such a certification.
Therefore, a litigant may not secure a certification of finality
from a trial court to circumvent this court's exclusive
authority to determine whether leave should be granted to appeal
an interlocutory order.
The sole purpose of a certification of finality under Rule
4:42-2 is to permit execution on a partial summary judgment
fully adjudicating a separable claim for affirmative relief.
The appealability of an interlocutory order certified as final
is solely an ancillary consequence of such a certification.
Therefore, a litigant may not secure a certification of finality
from a trial court to circumvent this court's exclusive
authority to determine whether leave should be granted to appeal
an interlocutory order.
Angela Hoag v. Commissioner Devon Brown
11-27-07 A-5537-05T2
Plaintiff is a licensed clinical social worker employed by
Correctional Medical Services, an independent contractor, who
assigned her to Southern State Correctional Facility to provide
mental health services for prison inmates. Plaintiff alleged
that a corrections officer threatened and physically and
verbally abused her. She appeals from a summary judgment
dismissing her hostile work environment claim under the New
Jersey Law Against Discrimination. The court dismissed her
claim because she was not an employee of the State. The judge
also dismissed her negligent retention and supervision claim
against the State because she failed to meet the verbal
threshold of the Tort Claims Act based on her psychological
injuries. We reinstated both claims and discussed in the
opinion why she could be considered an employee of the State for
purposes of the Law Against Discrimination. We also discussed
the elements necessary to vault the Tort Claims Act verbal
threshold when a plaintiff only suffers psychological injuries.
Plaintiff is a licensed clinical social worker employed by
Correctional Medical Services, an independent contractor, who
assigned her to Southern State Correctional Facility to provide
mental health services for prison inmates. Plaintiff alleged
that a corrections officer threatened and physically and
verbally abused her. She appeals from a summary judgment
dismissing her hostile work environment claim under the New
Jersey Law Against Discrimination. The court dismissed her
claim because she was not an employee of the State. The judge
also dismissed her negligent retention and supervision claim
against the State because she failed to meet the verbal
threshold of the Tort Claims Act based on her psychological
injuries. We reinstated both claims and discussed in the
opinion why she could be considered an employee of the State for
purposes of the Law Against Discrimination. We also discussed
the elements necessary to vault the Tort Claims Act verbal
threshold when a plaintiff only suffers psychological injuries.
Christopher P. Calbi v. Linda J. Calbi
11-21-07 A-5053-05T1
Former husband sought termination of alimony obligation to
former wife for causing the death of their fifteen-year-old son
and her subsequent conviction for second-degree assault. Held
that the facts of the case did not constitute "egregious fault"
so as to terminate alimony. However, the former husband is
entitled to show how the death of his son and its effect upon
him led to adverse economic consequences including accumulated
arrears. Further held that both alimony and payment on arrears
suspended while former wife is incarcerated, and upon her
discharge she is required to make an a new application for
alimony.
Former husband sought termination of alimony obligation to
former wife for causing the death of their fifteen-year-old son
and her subsequent conviction for second-degree assault. Held
that the facts of the case did not constitute "egregious fault"
so as to terminate alimony. However, the former husband is
entitled to show how the death of his son and its effect upon
him led to adverse economic consequences including accumulated
arrears. Further held that both alimony and payment on arrears
suspended while former wife is incarcerated, and upon her
discharge she is required to make an a new application for
alimony.
Housing and Redevelopment Authority of the Township of Franklin v. Bertha Miller
11-19-07 A-2463-06T2
In federally subsidized public housing, the commission of a
disorderly persons offense, or a petty disorderly persons
offense, justifies eviction of the tenant when the tenant's
conduct threatens the health or safety of other tenants, or
their right to peaceful enjoyment of the public housing
premises.
In federally subsidized public housing, the commission of a
disorderly persons offense, or a petty disorderly persons
offense, justifies eviction of the tenant when the tenant's
conduct threatens the health or safety of other tenants, or
their right to peaceful enjoyment of the public housing
premises.
Michael Koruba v. American Honda Motor Co., Inc.
11-19-07 A-5953-05T5
Despite manufacturer's warnings in the owner's manual and
oral warnings by the retail seller at time of sale, plaintiff
attempted an extreme jump on his sports all terrain vehicle
(ATV), resulting in serious injury. We affirmed the summary
judgment dismissal of his product liability failure-to-warn
lawsuit, finding the expert's opinion on the need for on-product
labeling a net opinion based on neither epidemiological data or
empirical research linking such need to the magnitude of the
risk associated with jumping.
We also found no basis for the expert's other opinion that
Honda's promotional marketing of its ATV sent a "mixed message"
to consumers, resulting in their failure to heed the warnings
actually given. Although in some circumstances counteracting
representations may nullify an otherwise suitable warning, here
there was no evidence that Honda promoted its product in such a
manner, and furthermore Honda was not responsible for general
depictions appearing elsewhere in the media. Nor was Honda
under a duty, as suggested by plaintiff's expert, to instruct on
how to "safely" jump its ATV, that is to instruct on how to use
a product in a manner the manufacturer has expressly warned
against.
Lastly, we upheld the dismissal of plaintiff's negligence
action against the seller, finding that the Product Liability
Act is the exclusive remedy for personal injury claims arising
out of product use.
Despite manufacturer's warnings in the owner's manual and
oral warnings by the retail seller at time of sale, plaintiff
attempted an extreme jump on his sports all terrain vehicle
(ATV), resulting in serious injury. We affirmed the summary
judgment dismissal of his product liability failure-to-warn
lawsuit, finding the expert's opinion on the need for on-product
labeling a net opinion based on neither epidemiological data or
empirical research linking such need to the magnitude of the
risk associated with jumping.
We also found no basis for the expert's other opinion that
Honda's promotional marketing of its ATV sent a "mixed message"
to consumers, resulting in their failure to heed the warnings
actually given. Although in some circumstances counteracting
representations may nullify an otherwise suitable warning, here
there was no evidence that Honda promoted its product in such a
manner, and furthermore Honda was not responsible for general
depictions appearing elsewhere in the media. Nor was Honda
under a duty, as suggested by plaintiff's expert, to instruct on
how to "safely" jump its ATV, that is to instruct on how to use
a product in a manner the manufacturer has expressly warned
against.
Lastly, we upheld the dismissal of plaintiff's negligence
action against the seller, finding that the Product Liability
Act is the exclusive remedy for personal injury claims arising
out of product use.
Bienvenido Morel v. State Farm Insurance Company
11-16-07 A-1464-06T5
There is generally no right to appeal from a trial judge's
decision in a case arising under The New Jersey Alternative
Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30.
But the losing party may appeal when, as here, the judge
completely failed to apply the standards of review required of
trial judges by that statute. Our review of a failure to apply
the statute at all comes within our supervisory function over
the trial courts.
There is generally no right to appeal from a trial judge's
decision in a case arising under The New Jersey Alternative
Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30.
But the losing party may appeal when, as here, the judge
completely failed to apply the standards of review required of
trial judges by that statute. Our review of a failure to apply
the statute at all comes within our supervisory function over
the trial courts.
Shana Faith Massachi v. AHL Services Inc.
11-15-07 A-1113-06T1
The Tort Claims Act immunity afforded by N.J.S.A. 59:5-4
for failure to provide police protection or sufficient police
protection does not immunize a public entity from liability for
a 9-1-1 operator's negligent performance of his or her
ministerial responsibilities in the handling of an emergency
call. We do not address the public entity's alternate immunity
claim under N.J.S.A. 52:17C-10(d).
The Tort Claims Act immunity afforded by N.J.S.A. 59:5-4
for failure to provide police protection or sufficient police
protection does not immunize a public entity from liability for
a 9-1-1 operator's negligent performance of his or her
ministerial responsibilities in the handling of an emergency
call. We do not address the public entity's alternate immunity
claim under N.J.S.A. 52:17C-10(d).
Ocean Medical Imaging Associates d/b/a Ocean Medical Imaging Center
11-13-07 (A-0362-06T1)
The appellants-ambulatory care facilities (ACF) challenge
the validity of the Department of Health and Senior Services
regulations adopted to implement N.J.S.A. 26:2H-18.57 imposing
an assessment charged to certain ACFs. The revenues collected
from the assessment finance hospital charity care.
The assessment calculation is bottomed on an ACF's gross
receipts. Appellants sought to exclude from annual gross
receipts "pass through" payments made to independent contractors
and revenue for services other than those listed in the statute.
We conclude the Legislature purposely chose to use gross
receipts to calculate an ACF's assessment, rather than some
other calculation, such as adjusted gross income or net income.
The statute failed to provide for exclusions as proposed by
appellants. Thus, the agency's rulemaking falls within the
bounds of its statutory authority.
Finally, we reject appellants' constitutional challenge to
the regulation that uses a prior year's gross receipts to
compute the future year's assessment.
The appellants-ambulatory care facilities (ACF) challenge
the validity of the Department of Health and Senior Services
regulations adopted to implement N.J.S.A. 26:2H-18.57 imposing
an assessment charged to certain ACFs. The revenues collected
from the assessment finance hospital charity care.
The assessment calculation is bottomed on an ACF's gross
receipts. Appellants sought to exclude from annual gross
receipts "pass through" payments made to independent contractors
and revenue for services other than those listed in the statute.
We conclude the Legislature purposely chose to use gross
receipts to calculate an ACF's assessment, rather than some
other calculation, such as adjusted gross income or net income.
The statute failed to provide for exclusions as proposed by
appellants. Thus, the agency's rulemaking falls within the
bounds of its statutory authority.
Finally, we reject appellants' constitutional challenge to
the regulation that uses a prior year's gross receipts to
compute the future year's assessment.
Vincent F. Baldassano v. High Point Insurance Company
11-08-07 A-2183-06T1
Plaintiff was a passenger in a car involved in a one
vehicle accident. He settled with the driver for the driver's
policy limit of $100,000 but claimed his damages exceeded that
amount and sought underinsured motorist (UIM) coverage from his
auto insurance carrier, High Point Insurance Company (High
Point). The UIM claim was denied because plaintiff's UIM limit
of $100,000 had been met by the driver's insurance policy.
Plaintiff claimed that in 1998 when he first purchased the
policy, the agent failed to explain the coverage options, the
agent checked the boxes on the coverage selection form, and the
agent failed to provide a buyer's guide. Plaintiff renewed the
policy twelve times before the accident without inquiring about
or changing the policy limits and transferred the policy twice
to new vehicles.
We affirmed and held that under N.J.S.A. 17:28-1.9 the
insurer is immune from liability under the circumstances
presented where (1) the insured executed a coverage selection
form on which the coverage selections had been checked by the
agent; (2) the insured renewed the policy twelve times before
the accident; and (3) the insured could not refute the carrier's
claim that the agent provided "a written notice identifying [all
coverage information] and containing a buyer's guide and
coverage selection form" as required by N.J.S.A. 39:6A-23(a) and
(c).
Plaintiff was a passenger in a car involved in a one
vehicle accident. He settled with the driver for the driver's
policy limit of $100,000 but claimed his damages exceeded that
amount and sought underinsured motorist (UIM) coverage from his
auto insurance carrier, High Point Insurance Company (High
Point). The UIM claim was denied because plaintiff's UIM limit
of $100,000 had been met by the driver's insurance policy.
Plaintiff claimed that in 1998 when he first purchased the
policy, the agent failed to explain the coverage options, the
agent checked the boxes on the coverage selection form, and the
agent failed to provide a buyer's guide. Plaintiff renewed the
policy twelve times before the accident without inquiring about
or changing the policy limits and transferred the policy twice
to new vehicles.
We affirmed and held that under N.J.S.A. 17:28-1.9 the
insurer is immune from liability under the circumstances
presented where (1) the insured executed a coverage selection
form on which the coverage selections had been checked by the
agent; (2) the insured renewed the policy twelve times before
the accident; and (3) the insured could not refute the carrier's
claim that the agent provided "a written notice identifying [all
coverage information] and containing a buyer's guide and
coverage selection form" as required by N.J.S.A. 39:6A-23(a) and
(c).
Citizens Voices Association v. Collings Lakes Civic Association
11-08-07 A-1025-06T3
We affirmed the Chancery judge's holding that certain deed
restrictions in a lake community were still enforceable. In the
decision, we reviewed the standards for modifying or terminating
servitudes. In addition, we reviewed the standards for an
abandonment of restrictive covenants. Lastly, we examined the
res judicata consequences of a judgment that deals with
continuing relief.
We affirmed the Chancery judge's holding that certain deed
restrictions in a lake community were still enforceable. In the
decision, we reviewed the standards for modifying or terminating
servitudes. In addition, we reviewed the standards for an
abandonment of restrictive covenants. Lastly, we examined the
res judicata consequences of a judgment that deals with
continuing relief.
The Port Authority of New York and New Jersey v. Airport Auto Services, Inc.
11-01-07 A-1458-06T5
In an action brought by the Port Authority of New York and
New Jersey, a counterclaim may not be pursued unless the
counterclaimant has filed the required notice of claim and
waited the required sixty days before filing the counterclaim.
Invoices submitted to the Port Authority in the ordinary
course do not constitute substantial compliance with the notice
of claim statutes.
In an action brought by the Port Authority of New York and
New Jersey, a counterclaim may not be pursued unless the
counterclaimant has filed the required notice of claim and
waited the required sixty days before filing the counterclaim.
Invoices submitted to the Port Authority in the ordinary
course do not constitute substantial compliance with the notice
of claim statutes.
Andrew McKenzie v. Jon Corzine
10-26-07 A-0703-07T3
Plaintiffs filed this action seeking a determination that
the interpretive statement the New Jersey Stem Cell Research
Bond Act of 2007 unfairly describes the question the voters are
being asked to decide at the upcoming general election because
it fails to discuss the impact on human cloning and fails to
adequately discuss the Act's fiscal impact on the State. The
court affirmed the trial judge's denial of injunctive relief and
dismissal of the complaint, concluding that the Legislature's
interpretive statement was entitled to great deference and that
it represented a fair description of the contents of the Act.
Plaintiffs filed this action seeking a determination that
the interpretive statement the New Jersey Stem Cell Research
Bond Act of 2007 unfairly describes the question the voters are
being asked to decide at the upcoming general election because
it fails to discuss the impact on human cloning and fails to
adequately discuss the Act's fiscal impact on the State. The
court affirmed the trial judge's denial of injunctive relief and
dismissal of the complaint, concluding that the Legislature's
interpretive statement was entitled to great deference and that
it represented a fair description of the contents of the Act.
Rock Work, Inc. v. Pulaski Construction Co., Inc.
10-25-07 A-0381-06T2
Under the Arbitration Act of 2003, N.J.S.A. 2A:23B-1 to
-32, when an arbitration agreement was made before January 1,
2003, and the parties did not agree thereafter on the record
that the Act would govern their arbitration, the Act only
applies if the arbitration was commenced after January 1, 2005,
and "commencement" refers, not to the date the hearings began,
but to the date on which the request for arbitration was made.
The arbitrators' rulings on procedural matters, such as the
order and extent of closing arguments, are not reviewable in
court.
Under the Act, the "American Rule" applies to fee shifting
unless fee shifting is authorized by law in a civil action
involving the same claim or by the express agreement of the
parties. An implied agreement is insufficient.
Under the Arbitration Act of 2003, N.J.S.A. 2A:23B-1 to
-32, when an arbitration agreement was made before January 1,
2003, and the parties did not agree thereafter on the record
that the Act would govern their arbitration, the Act only
applies if the arbitration was commenced after January 1, 2005,
and "commencement" refers, not to the date the hearings began,
but to the date on which the request for arbitration was made.
The arbitrators' rulings on procedural matters, such as the
order and extent of closing arguments, are not reviewable in
court.
Under the Act, the "American Rule" applies to fee shifting
unless fee shifting is authorized by law in a civil action
involving the same claim or by the express agreement of the
parties. An implied agreement is insufficient.
Camie Livsey v. Mercury Insurance Group
10-24-07 A-1238-06T5
Uninsured motorist benefits are available to a plaintiff in
a random, drive-by shooting.
Uninsured motorist benefits are available to a plaintiff in
a random, drive-by shooting.
ABA TORT AND INSURANCE COMMITTEE NEWSLETTER Fall, 2007
ABA TORT AND INSURANCE COMMITTEE NEWSLETTER Fall, 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair & Editor
In this Issue:
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE
3. BALANCE BILLING between the Medicaid program and the Medicare program.
4. WE PUBLISH YOUR FORMS AND ARTICLES
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
By: Thomas D. Begley, Jr., Esquire
What could be done when the Medicaid lien is so large that it would consume all or a substantial portion of the recovery.
A recent United States Supreme Court case has provided personal injury attorneys with ammunition to reduce a Medicaid lien in a personal injury case so that the payment to the State Medicaid Agency is fair and reasonable. After a series of cases around the country divided on the issue as to whether the State Medicaid Agency may recover from that portion of a settlement not earmarked for past medical expenses the United States Supreme Court decided the issue in the Ahlborn case,[1]The Court held that federal law requires states to ascertain the legal liability of third parties and to seek reimbursement for medical assistance to the extent of such legal liability. The state is considered to have acquired the rights of the injured party to payment by any other party for such health care items or services. As a condition of Medicaid eligibility, the individual is required to assign to the state any rights to payment for medical care from any third party. The Arkansas statute required that if the lien exceeds the portion of the settlement representing medical costs, satisfaction of the lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs, such as pain and suffering, lost wages, and loss of future earnings.
In the Ahlborn case, the plaintiff was involved in an automobile accident. Medicaid paid $215,645.30 on her behalf. Plaintiff filed suit for past medical costs and for other items, including pain and suffering, loss of earnings and working time, and permanent impairment of her future earning ability. The case was settled for $550,000, which was not allocated between categories of damages. The parties stipulated that the settlement amounted to approximately 1/6th of the reasonable value of Ahlborn’s claim. The court stated that the federal requirement that states “seek reimbursement for medical assistance to the extent of such legal liability” refers to the legal liability of third parties to pay for care and services available under the plan.” Here, because the plaintiff received only 1/6th of her overall damages, the right of the state of Arkansas was limited to 1/6th of the past medical claim or $35,581.47.
The court also held that 42 U.S.C. §1396p(a)(1) prohibits states from imposing liens “against the property of any individual prior to his death on account of medical assistance paid...on his behalf under the state plan.” This prevents the state from attaching the non-past medical portion of the settlement. As a result of this ruling, states can assert a Medicaid lien only against that portion of a settlement earmarked for past medical expenses. The state may not recover against non-medical expense claims, such as pain and suffering, loss or earnings and permanent loss of future earnings. Needless to say, it is good practice in a personal injury settlement to make a clear allocation of damages.
Allocation is not only important, but must be fair. As Justice Stevens said in the Ahlborn opinion, “Although more colorable, the alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation also fails. The risk that parties to a tort suit will allocate away the state’s interest can be avoided either by obtaining the state’s advanced agreement to an allocation or, if necessary, by submitting the matter to a court for a decision.”
Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE
By Kenneth Vercammen, Esq.
In the 21 years I have been practicing law I have developed many ideas and systems to better serve Personal Injury clients. My clients consist primarily of Middle class working people who need a good attorney. I was fortunate early in my career to realize that skills in running an office and handling staff were essential whether I became a partner or opened my own practice. Help your practice by inexpensive improvements in service to clients.
YOU WORK FOR YOUR CLIENTS
Famous Department stores instruct all employees "The Customer is Always Right". You should adopt this maxim. I am a solo which several support staff so I am manage the business. Yet, I am still an employee. You work for your clients. They can fire you whenever they want. Use to Dale Carnegie approach to win friends and influence people. Be nice to your clients. Even if you win, clients will not come back if you don't "serve" and please them.
The waiting area is an excellent area to provide clients with Legal Consumer Material. I write brochures to educate my clients on different areas of law. We now have 19 brochures which cover basic topics such as Auto Accidents, Wills, Criminal Law, Probate, Personal Injury, Cooperating With Your Attorney, Living Will, Expungements and Drunk Driving. These assist clients by given them an idea about how cases may progress and sometimes explaining their responsibilities. Hopefully they will read them and save them for future use.
Insurance companies do not pay money even on good cases unless plaintiff's counsel is properly prepared. Preparation for the case begins during the initial telephone call by the perspective client to your office. Your secretary should ascertain the person's name, who referred them, and what type of matter (i.e. automobile, fall down, medical malpractice, products liability). The following are 15 quick tips to better serve your clients in soft tissue cases and maximize recovery:
1. Referrals to Doctors - Don't just give one referral, give at least three. Advise your clients that under law they are primarily responsible for all medical bills. The primary responsibility for medical bills is not their car insurance or their private insurance or the defendant.
2. Contested Liability Auto - Go to the scene of the accident. Determine the size of the streets. Look at the location of businesses. This shows greater traffic than a residential area. In a more substantial case, have your investigator go door to door to speak with potential witnesses.
3 Obtain Time Sheets of Property Owner in Slip and Fall Cases - In slip and fall cases, you may wish request from production of documents the time sheets and payroll for the date of the accident prior to the deposition of the manager and other employees.
4. Certified Copies - Obtain certified copies of hospital records and other documents that are prepared in the ordinary course of business. If they are certified there is less of an obstacle to admission of these records at trial.
5. Deposition of Plaintiff - The witness should say "That's all I remember" instead of "Those are the only injuries that I have." Explain to your clients that a deposition is not their opportunity to tell their story. Their clients should be frustrated that they did not get to tell their story the way they wanted. Make sure they know that they should answer yes or no but not to volunteer information.
6. Witnesses - It is a good idea to have all witnesses interviewed and provide a signed statement. You want them to be the witness, not yourself to be the witness and disqualify yourself if their statement at trial is inconsistent with what they may have told you over the phone.
7. Docket Numbers on Correspondence Help the Court - In all letters to the court and motion's clerk, put the complete case name and docket number. If it is to an adjuster or a defense insurance counsel, put the claim number.
8. Defense Doctor Reports - Send the defense doctor reports to the treating doctor prior to trial so they can review the report and advise you as to the weakness in the defense report and the weakness of the defense doctor. It is not recommended to give a report to the plaintiff because that will make them angry.
9. Lien Considerations - Protect yourself. There will occasionally be Medicare, potential welfare liens, workman's compensation liens, and doctors liens. If a Letter of Protection was signed, you as the attorney will be responsible. If there is a Letter of Protection or lien, write it in big letters on the outside of the file. However, doctors also have responsibilities to cooperate.
10. Rules for Professional Conduct - Be careful in what you say and do. I lived in Edison where there were four attorneys, with offices outside Edison, who faced serious disciplinary charges in connection with solicitation at the Texas Eastern Gas Pipeline/ Durham Woods explosion.
11. Preparing Arbitration Statements and Settlement Conference Brochures - These should be easy to read for the Arbitrator or Judge to get to the immediate point of what your damages are. Set forth:
1 - Date and details of accident;
2 - Injuries;
3 - Medical treatment;
4 - Present complaints;
5 - Medical expenses;
6 - Other damages (e.g. Wage loss)
7 - Other important information; and
8 - Medical and evidence documents.
We send a draft Arbitration Statement to our client first for them to review and modify, especially what their present complaints may be. Arbitration should be considered a dry run for trial. You should have proof of your wage lost claim rather than your client just simply testifying what they lost. You should have everything there present to go except the $3,000.00 doctor testifying.
Waiting Time at Arbitration - While waiting for the arbitration, spend every minute preparing the client over and over again until you know the file blindfolded. We often have the client's read every doctor's report.
12. Request for Admissions - When we send the Arbitration Statement to arbitration, we also send the Arbitration Statement to the Defense Attorney with all the medical and evidence documents together with a Request for Admissions Regarding the Genuiness of Documents. Therefore, we are asking them to admit the genuineness and accurateness of documents such as police reports, hospital records, tax records or wage loss forms plus certain doctor's records. In addition, this provides a useful exhibit list for trial. Computers are great to store information and this will help you to pre-mark exhibits in case the matter has to go to trial.
13. Subpoena Witnesses to Arbitration - We have, on occasion, served subpoenas on defendants and witnesses to appear at the Arbitration. I want to determine (1) If they are available; and (2) what they would say at trial or deposition.
14. Settlement Conference Days - We have found success in contacting our Civil Case Manager and asking that they schedule 6-7 of our cases post-arbitration for a Settlement Conference. This way this is much more efficient use of time as the plaintiff's attorney rather than making 7 separate trips for free to the courthouse. The judges will often try to assist you because they wish to wrap the cases up. By having many cases there, you as the plaintiff's attorney are operating in a position of strength and you are not wasting an afternoon.
15. Preparation for Trial of the Case - Preparing your witnesses - There are many excellent videos to prepare clients for trial, depositions, and defense exams. Chiropractors often give patients brochures describing how to explain pain.
CONCLUSION
Keeping clients informed and happy goes a long way to improving the public perception of the Legal Profession. Work hard and keep your clients happy.
As a practicing trial attorney I try to be pleasant to our clients and all people would contact our office. Being a solo in a full service Law Office, we have to rely on our commitment to clients to pay office expenses, the mortgage and travel to Bar events in exciting places.
Be proud of the Legal Profession, communicate to your clients and be civil. Hopefully, the few ideas which have helped me succeed may help you develop your practice. If you have any suggestions on improving service and representation to Soft Tissue personal injury clients, drop me a note, fax or email: kenvnjlaws@verizon.net
Kenneth A. Vercammen is an Edison, Middlesex County, New Jersey trial attorney who has published 125 articles in national and New Jersey publications on personal injury and litigation topics. He has lectured on Personal injury and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton, PA District Magistrate.
3. BALANCE BILLING between the Medicaid program and the Medicare program.
By: Thomas D. Begley, Jr., Esquire
There is a significant difference on the issue of balance billing between the Medicaid program and the Medicare program.
1. Medicaid. Medicaid reimbursement rates are very low and as a result it is often difficult to obtain services because providers refuse to accept Medicaid. It is not possible for the patient to pay the difference between the private pay rate and the Medicaid pay rate. This is known as balance billing. Medicaid participating providers must accept the Medicaid payment as “payment in full.”[1] This means that providers accepting Medicaid waive their right to bill Medicaid beneficiaries for any amounts over the Medicaid payment.
Several states have refused to allow providers to assert liens against Medicaid beneficiaries where there is clear third party liability and the Medicaid beneficiary has obtained a significant tort recovery.
In Illinois,[2] the hospital brought an action against the Medicaid agency to allow it to refund the Medicaid reimbursement so that it could sue the Medicaid beneficiary who had obtained a substantial tort judgment. The Seventh Circuit held that the hospital could not refund the Medicaid payment to the Medicaid agency and sue the Medicaid beneficiary. The Court noted, “Medicaid is a payer of last resort.” The state can seek reimbursement from third parties, but private providers may not.
In a similar case in Florida,[3] the hospital placed a lien on the settlement award, but the court held that when a Medicaid patient obtains a tort recovery in excess of the medical expenditures paid by Medicaid, that recovery is meant to go to the injured party, not the provider. A similar result was reached in another Florida case.[4]
A federal appellate court has found that a hospital’s lien on the proceeds of a malpractice settlement was invalid and unenforceable because the hospital had already accepted Medicaid payments for the care provided to the patient.[5] “By accepting Medicaid payments, Spectrum waived its right to its customary fee for services provided to Bowling...” “Although Medicaid rates are typically lower than a service provider’s customary fees, medical service providers must accept state-approved Medicaid payment as payment in full and may not require that patients pay anything beyond that amount.”
California invalidated two state statutes authorizing provider liens against Medicaid beneficiaries.[6] The statutes authorized providers to file liens against recoveries obtained by Medicaid beneficiaries even after the provider received Medicaid. The court found that the state statutes were preempted by federal legislation banning balance billing.
2. Medicare. Previously, Medicare had a prohibition against billing Medicare beneficiaries in excess of the payment made by Medicare. Participation has been limited to providers who agreed to accept Medicare as payment in full. Recent changes in the Medicare law[7] now permit a provider to bill a Medicare beneficiary or assert a lien against the beneficiary's recovery obtained from the tortfeasor by way of settlement or award.[8]
In the seminal case,[9] a hospital sought to recover from the Medicare patient more than it received from Medicare reimbursement. The 1st Circuit held that the fact that the patient recovered more than Medicare reimbursed the hospital did not entitle the hospital to charge the patient the difference between its full fee and Medicare's lower flat fee. The agreement between Medicare and the hospital was that in exchange for Medicare guaranteeing payment to the hospital, there would be no additional payment required from the Medicare beneficiary.
The recent changes now allow providers to bill the liability insurer or place a lien against the Medicare beneficiary's recovery.
142 U.S.C. §1396a(a)(25)(c); 42 C.F.R. §447.15; 42 U.S.C. §1320a-7b(d) .
2 Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993).
3 Mallo v. Public Health Trust of Dade County, 88 F.Supp.2d 1376 (S.D. Fla. 2000).
4 Public Health Trust of Dade County v. Dade County School Board, 693 So.2d 562 (Fla. Dist. Ct. App. 1996).
5 Spectrum v. Bowling, 410 F.3d 304 (6th Cir. 2005).
6 Olszewski v. Scripps Health, 135 Cal. Rptr. 2d 1 (Cal. 2003).
7 68 Fed. Reg. 43940 (July 25, 2003).
8 42 C.F.R. 411.54(c)(2).
9 Rybicki v. Hartley, 782 F.2d 260 (1st Cir. 1986).
Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
4. WE PUBLISH YOUR FORMS AND ARTICLES
The American Bar Association Tort & Insurance Law Committee of the General Practice Division monitors federal and state legislation affecting rules of procedure and tort reform The committee presents and sponsors programs at the Annual Meeting often dealing in tort and litigation issues.
Articles needed for American Bar Association Tort & Insurance Law Committee Newsletter
They feature a newsletter with Personal Injury forms and articles plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Tort and Insurance Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.
_______________________
TORT AND INSURANCE COMMITTEE General Practice, Solo and Small Firm Division
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair and Past Chair
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
kenv@njlaws.com
website- http://njpersonalinjurylawcenter.com/
Personal Injury blog- http://njlawspersonalinjury.blogspot.com/
ABA General Practice, Solo and Small Firm Division American Bar Association
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair & Editor
In this Issue:
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE
3. BALANCE BILLING between the Medicaid program and the Medicare program.
4. WE PUBLISH YOUR FORMS AND ARTICLES
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
By: Thomas D. Begley, Jr., Esquire
What could be done when the Medicaid lien is so large that it would consume all or a substantial portion of the recovery.
A recent United States Supreme Court case has provided personal injury attorneys with ammunition to reduce a Medicaid lien in a personal injury case so that the payment to the State Medicaid Agency is fair and reasonable. After a series of cases around the country divided on the issue as to whether the State Medicaid Agency may recover from that portion of a settlement not earmarked for past medical expenses the United States Supreme Court decided the issue in the Ahlborn case,[1]The Court held that federal law requires states to ascertain the legal liability of third parties and to seek reimbursement for medical assistance to the extent of such legal liability. The state is considered to have acquired the rights of the injured party to payment by any other party for such health care items or services. As a condition of Medicaid eligibility, the individual is required to assign to the state any rights to payment for medical care from any third party. The Arkansas statute required that if the lien exceeds the portion of the settlement representing medical costs, satisfaction of the lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs, such as pain and suffering, lost wages, and loss of future earnings.
In the Ahlborn case, the plaintiff was involved in an automobile accident. Medicaid paid $215,645.30 on her behalf. Plaintiff filed suit for past medical costs and for other items, including pain and suffering, loss of earnings and working time, and permanent impairment of her future earning ability. The case was settled for $550,000, which was not allocated between categories of damages. The parties stipulated that the settlement amounted to approximately 1/6th of the reasonable value of Ahlborn’s claim. The court stated that the federal requirement that states “seek reimbursement for medical assistance to the extent of such legal liability” refers to the legal liability of third parties to pay for care and services available under the plan.” Here, because the plaintiff received only 1/6th of her overall damages, the right of the state of Arkansas was limited to 1/6th of the past medical claim or $35,581.47.
The court also held that 42 U.S.C. §1396p(a)(1) prohibits states from imposing liens “against the property of any individual prior to his death on account of medical assistance paid...on his behalf under the state plan.” This prevents the state from attaching the non-past medical portion of the settlement. As a result of this ruling, states can assert a Medicaid lien only against that portion of a settlement earmarked for past medical expenses. The state may not recover against non-medical expense claims, such as pain and suffering, loss or earnings and permanent loss of future earnings. Needless to say, it is good practice in a personal injury settlement to make a clear allocation of damages.
Allocation is not only important, but must be fair. As Justice Stevens said in the Ahlborn opinion, “Although more colorable, the alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation also fails. The risk that parties to a tort suit will allocate away the state’s interest can be avoided either by obtaining the state’s advanced agreement to an allocation or, if necessary, by submitting the matter to a court for a decision.”
Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE
By Kenneth Vercammen, Esq.
In the 21 years I have been practicing law I have developed many ideas and systems to better serve Personal Injury clients. My clients consist primarily of Middle class working people who need a good attorney. I was fortunate early in my career to realize that skills in running an office and handling staff were essential whether I became a partner or opened my own practice. Help your practice by inexpensive improvements in service to clients.
YOU WORK FOR YOUR CLIENTS
Famous Department stores instruct all employees "The Customer is Always Right". You should adopt this maxim. I am a solo which several support staff so I am manage the business. Yet, I am still an employee. You work for your clients. They can fire you whenever they want. Use to Dale Carnegie approach to win friends and influence people. Be nice to your clients. Even if you win, clients will not come back if you don't "serve" and please them.
The waiting area is an excellent area to provide clients with Legal Consumer Material. I write brochures to educate my clients on different areas of law. We now have 19 brochures which cover basic topics such as Auto Accidents, Wills, Criminal Law, Probate, Personal Injury, Cooperating With Your Attorney, Living Will, Expungements and Drunk Driving. These assist clients by given them an idea about how cases may progress and sometimes explaining their responsibilities. Hopefully they will read them and save them for future use.
Insurance companies do not pay money even on good cases unless plaintiff's counsel is properly prepared. Preparation for the case begins during the initial telephone call by the perspective client to your office. Your secretary should ascertain the person's name, who referred them, and what type of matter (i.e. automobile, fall down, medical malpractice, products liability). The following are 15 quick tips to better serve your clients in soft tissue cases and maximize recovery:
1. Referrals to Doctors - Don't just give one referral, give at least three. Advise your clients that under law they are primarily responsible for all medical bills. The primary responsibility for medical bills is not their car insurance or their private insurance or the defendant.
2. Contested Liability Auto - Go to the scene of the accident. Determine the size of the streets. Look at the location of businesses. This shows greater traffic than a residential area. In a more substantial case, have your investigator go door to door to speak with potential witnesses.
3 Obtain Time Sheets of Property Owner in Slip and Fall Cases - In slip and fall cases, you may wish request from production of documents the time sheets and payroll for the date of the accident prior to the deposition of the manager and other employees.
4. Certified Copies - Obtain certified copies of hospital records and other documents that are prepared in the ordinary course of business. If they are certified there is less of an obstacle to admission of these records at trial.
5. Deposition of Plaintiff - The witness should say "That's all I remember" instead of "Those are the only injuries that I have." Explain to your clients that a deposition is not their opportunity to tell their story. Their clients should be frustrated that they did not get to tell their story the way they wanted. Make sure they know that they should answer yes or no but not to volunteer information.
6. Witnesses - It is a good idea to have all witnesses interviewed and provide a signed statement. You want them to be the witness, not yourself to be the witness and disqualify yourself if their statement at trial is inconsistent with what they may have told you over the phone.
7. Docket Numbers on Correspondence Help the Court - In all letters to the court and motion's clerk, put the complete case name and docket number. If it is to an adjuster or a defense insurance counsel, put the claim number.
8. Defense Doctor Reports - Send the defense doctor reports to the treating doctor prior to trial so they can review the report and advise you as to the weakness in the defense report and the weakness of the defense doctor. It is not recommended to give a report to the plaintiff because that will make them angry.
9. Lien Considerations - Protect yourself. There will occasionally be Medicare, potential welfare liens, workman's compensation liens, and doctors liens. If a Letter of Protection was signed, you as the attorney will be responsible. If there is a Letter of Protection or lien, write it in big letters on the outside of the file. However, doctors also have responsibilities to cooperate.
10. Rules for Professional Conduct - Be careful in what you say and do. I lived in Edison where there were four attorneys, with offices outside Edison, who faced serious disciplinary charges in connection with solicitation at the Texas Eastern Gas Pipeline/ Durham Woods explosion.
11. Preparing Arbitration Statements and Settlement Conference Brochures - These should be easy to read for the Arbitrator or Judge to get to the immediate point of what your damages are. Set forth:
1 - Date and details of accident;
2 - Injuries;
3 - Medical treatment;
4 - Present complaints;
5 - Medical expenses;
6 - Other damages (e.g. Wage loss)
7 - Other important information; and
8 - Medical and evidence documents.
We send a draft Arbitration Statement to our client first for them to review and modify, especially what their present complaints may be. Arbitration should be considered a dry run for trial. You should have proof of your wage lost claim rather than your client just simply testifying what they lost. You should have everything there present to go except the $3,000.00 doctor testifying.
Waiting Time at Arbitration - While waiting for the arbitration, spend every minute preparing the client over and over again until you know the file blindfolded. We often have the client's read every doctor's report.
12. Request for Admissions - When we send the Arbitration Statement to arbitration, we also send the Arbitration Statement to the Defense Attorney with all the medical and evidence documents together with a Request for Admissions Regarding the Genuiness of Documents. Therefore, we are asking them to admit the genuineness and accurateness of documents such as police reports, hospital records, tax records or wage loss forms plus certain doctor's records. In addition, this provides a useful exhibit list for trial. Computers are great to store information and this will help you to pre-mark exhibits in case the matter has to go to trial.
13. Subpoena Witnesses to Arbitration - We have, on occasion, served subpoenas on defendants and witnesses to appear at the Arbitration. I want to determine (1) If they are available; and (2) what they would say at trial or deposition.
14. Settlement Conference Days - We have found success in contacting our Civil Case Manager and asking that they schedule 6-7 of our cases post-arbitration for a Settlement Conference. This way this is much more efficient use of time as the plaintiff's attorney rather than making 7 separate trips for free to the courthouse. The judges will often try to assist you because they wish to wrap the cases up. By having many cases there, you as the plaintiff's attorney are operating in a position of strength and you are not wasting an afternoon.
15. Preparation for Trial of the Case - Preparing your witnesses - There are many excellent videos to prepare clients for trial, depositions, and defense exams. Chiropractors often give patients brochures describing how to explain pain.
CONCLUSION
Keeping clients informed and happy goes a long way to improving the public perception of the Legal Profession. Work hard and keep your clients happy.
As a practicing trial attorney I try to be pleasant to our clients and all people would contact our office. Being a solo in a full service Law Office, we have to rely on our commitment to clients to pay office expenses, the mortgage and travel to Bar events in exciting places.
Be proud of the Legal Profession, communicate to your clients and be civil. Hopefully, the few ideas which have helped me succeed may help you develop your practice. If you have any suggestions on improving service and representation to Soft Tissue personal injury clients, drop me a note, fax or email: kenvnjlaws@verizon.net
Kenneth A. Vercammen is an Edison, Middlesex County, New Jersey trial attorney who has published 125 articles in national and New Jersey publications on personal injury and litigation topics. He has lectured on Personal injury and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton, PA District Magistrate.
3. BALANCE BILLING between the Medicaid program and the Medicare program.
By: Thomas D. Begley, Jr., Esquire
There is a significant difference on the issue of balance billing between the Medicaid program and the Medicare program.
1. Medicaid. Medicaid reimbursement rates are very low and as a result it is often difficult to obtain services because providers refuse to accept Medicaid. It is not possible for the patient to pay the difference between the private pay rate and the Medicaid pay rate. This is known as balance billing. Medicaid participating providers must accept the Medicaid payment as “payment in full.”[1] This means that providers accepting Medicaid waive their right to bill Medicaid beneficiaries for any amounts over the Medicaid payment.
Several states have refused to allow providers to assert liens against Medicaid beneficiaries where there is clear third party liability and the Medicaid beneficiary has obtained a significant tort recovery.
In Illinois,[2] the hospital brought an action against the Medicaid agency to allow it to refund the Medicaid reimbursement so that it could sue the Medicaid beneficiary who had obtained a substantial tort judgment. The Seventh Circuit held that the hospital could not refund the Medicaid payment to the Medicaid agency and sue the Medicaid beneficiary. The Court noted, “Medicaid is a payer of last resort.” The state can seek reimbursement from third parties, but private providers may not.
In a similar case in Florida,[3] the hospital placed a lien on the settlement award, but the court held that when a Medicaid patient obtains a tort recovery in excess of the medical expenditures paid by Medicaid, that recovery is meant to go to the injured party, not the provider. A similar result was reached in another Florida case.[4]
A federal appellate court has found that a hospital’s lien on the proceeds of a malpractice settlement was invalid and unenforceable because the hospital had already accepted Medicaid payments for the care provided to the patient.[5] “By accepting Medicaid payments, Spectrum waived its right to its customary fee for services provided to Bowling...” “Although Medicaid rates are typically lower than a service provider’s customary fees, medical service providers must accept state-approved Medicaid payment as payment in full and may not require that patients pay anything beyond that amount.”
California invalidated two state statutes authorizing provider liens against Medicaid beneficiaries.[6] The statutes authorized providers to file liens against recoveries obtained by Medicaid beneficiaries even after the provider received Medicaid. The court found that the state statutes were preempted by federal legislation banning balance billing.
2. Medicare. Previously, Medicare had a prohibition against billing Medicare beneficiaries in excess of the payment made by Medicare. Participation has been limited to providers who agreed to accept Medicare as payment in full. Recent changes in the Medicare law[7] now permit a provider to bill a Medicare beneficiary or assert a lien against the beneficiary's recovery obtained from the tortfeasor by way of settlement or award.[8]
In the seminal case,[9] a hospital sought to recover from the Medicare patient more than it received from Medicare reimbursement. The 1st Circuit held that the fact that the patient recovered more than Medicare reimbursed the hospital did not entitle the hospital to charge the patient the difference between its full fee and Medicare's lower flat fee. The agreement between Medicare and the hospital was that in exchange for Medicare guaranteeing payment to the hospital, there would be no additional payment required from the Medicare beneficiary.
The recent changes now allow providers to bill the liability insurer or place a lien against the Medicare beneficiary's recovery.
142 U.S.C. §1396a(a)(25)(c); 42 C.F.R. §447.15; 42 U.S.C. §1320a-7b(d) .
2 Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993).
3 Mallo v. Public Health Trust of Dade County, 88 F.Supp.2d 1376 (S.D. Fla. 2000).
4 Public Health Trust of Dade County v. Dade County School Board, 693 So.2d 562 (Fla. Dist. Ct. App. 1996).
5 Spectrum v. Bowling, 410 F.3d 304 (6th Cir. 2005).
6 Olszewski v. Scripps Health, 135 Cal. Rptr. 2d 1 (Cal. 2003).
7 68 Fed. Reg. 43940 (July 25, 2003).
8 42 C.F.R. 411.54(c)(2).
9 Rybicki v. Hartley, 782 F.2d 260 (1st Cir. 1986).
Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
4. WE PUBLISH YOUR FORMS AND ARTICLES
The American Bar Association Tort & Insurance Law Committee of the General Practice Division monitors federal and state legislation affecting rules of procedure and tort reform The committee presents and sponsors programs at the Annual Meeting often dealing in tort and litigation issues.
Articles needed for American Bar Association Tort & Insurance Law Committee Newsletter
They feature a newsletter with Personal Injury forms and articles plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Tort and Insurance Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.
_______________________
TORT AND INSURANCE COMMITTEE General Practice, Solo and Small Firm Division
Chair: Patricia Sexton, Kansas City
Kenneth Vercammen, Esq. Deputy Chair and Past Chair
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
kenv@njlaws.com
website- http://njpersonalinjurylawcenter.com/
Personal Injury blog- http://njlawspersonalinjury.blogspot.com/
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