Trial Lawyer Resource Center

Matthew L. Garretson & Sylvius H. Von Saucken

In the recent case Amos v. Commissioner of Internal Revenue, the United States Tax Court stated that "if a settlement agreement lacks express language stating what the amount paid pursuant to that agreement was to settle, the intent of the payor is critical to that determination."  2003 WL 2289795 (U.S. Tax Ct, 2003).  As most personal injury attorney's understand, the correct "intent" is very important to memorialize in your settlement documents because IRC §104 (a) (2) provides that "gross income does not include the amount of any damages (other than punitive damages) received (weather by suit or agreement and whether as lump sum or as periodic payments) on account of personal physical injuries or physical sickness." 

The Supreme Court of the United States summarized the requirements of §104 (a) (2) as follows:

First, the taxpayer must demonstrate that the underlying cause of action giving rise to the recovery is "based upon tort or tort type rights"; and second, the taxpayer must show that the damages were received "on account of personal injuries or sickness." 

In Amos, the Court found that the dominant reason that the Defendant, Dennis Rodman, paid plaintiff the settlement amount at issue was to compensate petitioner for his alleged physical injuries arising from an incident involving the two individuals (Dennis Rodman allegedly lost his cool and had an altercation with Amos while Amos was photographing a Bulls Basketball game).  However, the Court also found that the settlement was in consideration for several other requirements (mainly a confidentiality agreement).  Since the settlement agreement identified those "other requirements" as consideration for the settlement proceeds, the Court determined that the parties did not intend all of the settlement proceeds to be allocated to the component for payment on account of personal physical injuries.  As a result, the Court allocated 80% of the settlement as paid in consideration for the other requirements stipulated in the Settlement Agreement.  The Court's allocation resulted in 20% of the settlement proceeds being (for non-physical injuries) included in Plaintiff's gross income and not exempt from IRC §61 (the general taxing statute).

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As Medicare's role in workers' compensation and liability settlements evolves, a lack of clear guidance has left many lawyers perplexed. Know how to protect the interests of both your client and Medicare.

Matthew L. Garretson

Political and popular pressure to preserve the Medicare Trust Fund is mounting. The population of beneficiaries that Medicare is intended to cover--older people and the severely disabled--is on the rise. Statistics about the growing number of retiring baby boomers are now cliché. At least 54 million Americans are disabled and more than 41 million receive Medicare.

To reduce Medicare costs, Congress enacted a collection of statutory provisions in the 1980s called the Medicare Secondary Payer, or MSP, statute, largely in recognition that workers' compensation carriers should be the primary source of medical insurance coverage for people injured on the job. The statute says the government serves as a secondary insurance provider when another source of primary coverage exists.

Interpreting the statute's requirements, however, can be difficult, and critics say the system is inefficient and the law has not succeeded in substantially lowering Medicare costs. As early as 1990, one U.S. senator commented, "Failure to follow the MSP law is costing the taxpayer billions of dollars," and as recently as 2003, a court was still citing the senator’s statement as relevant.

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By Matt Garretson & Jason Wolf

Prior to New Year’s Eve (December 31, 2005), Medicare’s interest was focused only on the reimbursement of injury-related care in the form of primary physician care and treatment in a hospital. Effective January 1, 2006, Medicare has expanded its reimbursement interests to include prescription drugs (under its Medical Part D Program). We all have been exposed to the massive media coverage over the past few months regarding the new Part D coverage. The punch line to the media message – Part D instantly will make Medicare one of the largest consumers/payee’s of prescription drugs. Undeniably, Medicare’s role continues to evolve and its complex reimbursement interests must be addressed in all liability settlements.

Medicare expanded coverage directly translates into expanded reimbursement obligations for you and your Medicare-entitled clients (creating a "bigger bite" of the proverbial apple for Medicare and thereby further eroding your clients’ net proceeds). Not only is the "substance" or scope of the Medicare’s recovery rights evolving, but the "form" of the recovery process will become more complicated as well. Medicare (via the Medicare Secondary Payer Division of CMS) recovers its past "conditional" payments for injury-related physician care and hospital treatment by outsourcing the recovery effort to the Coordination of Benefits office (COB). COB, in turn, appoints one of the approximately two dozen lead contractors (fiscal intermediaries) to your file. Most personal injury practitioners are familiar with this process.

The traditional process (COB, lead contractor) was created for the recovery of expenses related to physician care and hospital treatment. Medicare Part D, however, is covered by a new entity - Prescription Drug Plans (PDP). PDP is similar to Medicare managed plans (supplemental and replacement plans) and have a similar yet separate right of recovery than Medicare. Based upon our firm’s discussion with officials with in CMS, it appears that the reimbursement for the Part D coverage (prescription drugs) will be addressed through an additional, separate recovery effort. In other words, the PDP will share the same recovery right as Medicare managed plans and will need to seek recovery on it’s own as opposed to working in concert or inclusive with the traditional Medicare recovery effort.

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Medicaid Reimbursement in Personal Injury Cases after Arkansas Dept. of Health and Human Services v. Ahlborn

Matthew L. Garretson

You have a catastrophically injured client who receives Medicaid benefits. You have settled the case. Due to liability issues or policy limit issues, you believe you’ve gotten your client about 20 cents on the dollar for his true damages. Medicaid wants the entire settlement because it has paid $100,000 more for the client’s medical expenses than you recovered. What now? Ahlborn is a decision capable of creating more confusion and pitfalls than any case in recent history.

It appears that Monday, May 1, 2006, was a landmark day for plaintiffs’ rights in personal injury settlements. On that day the U.S. Supreme Court unanimously affirmed the Eighth Circuit’s decision in Arkansas Dept. of Health and Human Services v. Ahlborn. With this holding, a state’s Medicaid department will be limited to reimbursement from only that portion of a judgment or settlement that represents payment for medical expenses—states are now prohibited from seeking reimbursement for Medicaid costs from settlement proceeds that were intended to cover items other than medical expenses, such as pain and suffering and wage loss. The U.S. Supreme Court held that the federal anti-lien statute prevents states from attaching or encumbering the non-medical portion of the settlement or judgment.

In the slip opinion released May 1, 2006, the Court reasoned:

(Emphasis added).

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October 12-14, Colorado Springs, Colorado - The Settlement Institute. I'll be attending a great seminar on dealing with insurance that John Romano has put together. I'll be giving an hour presentation on multi-media presentations in mediations.

October 19-20, Williamsburg, Virginia - Virginia TLA Solo and Small Firm Conference. I'll be giving a presentation on Running a Plaintiff's Firm by the Numbers and how to get the information you want out of management reports.

December 1-2, Atlanta, Georgia - Auto Torts. Fellow group bloggers John Romano will be giving a presentation Friday morning on the tactics of  'How to Make Every Depostion a Winner' and Randall Scarlett will give a presentaiton on traumatic brain injury litigation 'How to Spot a Brain Damage Case and How to Prove a  Brain Damage Case'. John and Randy will be speaking Friday morning.

I'll be giving a presentation on how weblogs are changing the face of the internet and what every trial lawyer needs to know about the changes. I'll be speaking on Saturday morning.

If you're near any of those places and want to get together over a meal or a drink, drop me a line. I'm always happy to meet other trial lawyers.

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In May 2006, significant changes were made to the Medicare regulations concerning Providers’ ability to “bill” the liability insurance proceeds. Medicare Participating Providers may now wait and bill the beneficiary (liability settlement) for the actual charges.  Previously, Participating Providers were required to bill Medicare, as “billing” against the settlement proceeds was, in effect, the same as billing the beneficiary, which was a violation of the Participating Provider “assignment agreement”.

Effective May 8, 2006, CMS Medicare issued a policy change to the billing procedure for providers, physicians and suppliers with regards to payment for services where liability insurance is available.

Previously, Medicare participating providers, physicians and suppliers (hereafter “Providers”) were required to bill Medicare conditionally for injury-related claims and accept the Medicare approved amount as payment in full if they could not expect payment from the liability insurer within 120 days.  Providers could only charge the beneficiary for the coinsurance and deductible amounts.   With the policy change, Providers may now pursue payment from the plan covering the liable third party and they may charge the beneficiary (client) actual charges up to the amount of the liability proceeds, less procurement cost.  Providers cannot attempt to collect payment until the client has received the settlement funds.  

I recently  learned of a website for defense trial consultants Trial Behavior Consulting. They have a number of articles and presentations they’ve given. Most of the information matches what I already know and shows how to exploit the information from the defense side. Sarah Murray identifies some concerns that jury members have in her article Strategies for Minimizing Damages:

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Preponderance of the evidence. Is it more likely than not. On a 50/50 basis, does it tip the scale one way or another. That’s a much better standard than the criminal standard of beyond a reasonable doubt. But how do you get the jurors to decide a case on the preponderance of the evidence?

In general, people don’t think that way and they don’t decide cases that way.

Fact Witness

Q:  Would you say it is more likely than not that Mr. Smith ran the red light?

Q:  In fact would you say you were positive that Mr. Smith ran the red light?

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I just got back from the Southern Trial Lawyer’s Association Fall Retreat. Howard Nations reminded us not to ask the jury to ‘compensate the victim’. A large percentage of the jury thinks that the defendant is the victim! Regardless of how badly your client was injured and did nothing to contribute to the injury, the person that caused the injuries is the victim, because he’s being sued. Ah well.

 And of course, by now we all know now not ask for a jury award. Award is too much like reward, as in ‘jackpot justice’ and ‘litigation lottery’ terms commonly used by people trying to coopt our legal system. (Reform is far too inappropriate a term for it).

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Janabeth Taylor pointed me to some quotes on justice. These seem more applicable to a criminal law case, but they were still entertaining. Some of the quotes are listed below:

The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. ~Oliver Wendell Holmes, Jr., The Common Law

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Over the next year, I want to take a stack of closing argument transcripts and break them down to their basic components. There are certain items that have to be argued in every closing argument. An example of some are:

• Burden of Proof  – Only a preponderance of the evidence
• Empowering the jury – It’s their decision and not anyone else’s
• Personal Responsibility – That the defendant needs to take responsibility for his own actions
• Only Chance for Compensation – That the client only gets one trial and can’t come back for more money if there’s not enough.
• Intangible damages – Descriptions on how to make intangible damages real.
• Lost Wages – While it seems like a lot, it has to last a lifetime
• Life care plan – While it seems like a lot, it has to last a lifetime

In addition to those, there are a number of arguments that are frequently made on common themes. For example, corporate greed, a moment of neglect a lifetime of grief, cases involving a child, comparative negligence and others.

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I’m still getting caught up on posting notes from previous seminars. At the Southern Trial Lawyers Fall Retreat, Richard Jones a lawyer from Atlanta who specializes in inadequate security cases gave us an update on these cases which have become immeasurably harder to try in the age of ‘tort reform’.

The problem you have to contend with in inadequate security cases is that the management had actual knowledge of criminal activity on their premsies and did nothing. However, regardless of policy management never makes reports of any criminal complaints in the area. So what do you do?

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Every now and then, a book comes along that is better than good and just spot on terrific. Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability is one of them. I was hearing good things about this book and saw this plug by David Ball:

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Last Summer at the ATLA Convention I met Adam Rosen of JuryTest. Adam  has an interesting business in that he conducts on-line focus groups. I was giving a presentation on in-house focus groups a month later and had a case coming up for mediation, so Adam offered to give me a sample focus group on the same case if I shared the information from our live focus group for him to compare. We had a case with strong damages, but we were concerned about liability. The results were rather interesting. The ‘live’ and ‘online’ focus groups tracked each other much closer than I thought they would. Here are my thoughts regarding on-line focus groups:

Pros

• Fast and Easy to Set up – It took about 5–10 minutes to set up the presentation. I e-mailed Adam two or three pictures and one or two scanned pages of medical records. I then gave a 3–5 minute presentation on the phone.  That’s all it took.
• Fast Results – JuryTest can get the results within 24 hours of when you give them the information.
• Tremendous Breakdown of Results – The results are online in a spreadsheet / pie chart. You can very easily sort by age, income, gender or other demographic considerations. I had never been a big fan of demographics until I saw the breakdown on our case. We had a nearly unanimous consensus on liability except for men over 40 years old making over $50,000 a year, who were only 50/50 for us. Good stuff to know before picking a jury (especially in South Carolina with our limited voir dire).
• Inexpensive – The cost is scaleable based on the number of  jurors you have, but I think you can get 8–12 jurors for about $500. Additional jurors don’t cost that much extra. Call Adam for pricing, I don’t want to put words in his mouth, but it is a very modest fee.

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To enhance a theme, repetition and anchoring can be used to enhance the the impact and recall of the fact for the jury. Howard Nations talks about anchoring in his great article on themes:

Anchoring Through Repetition - Anchoring is a well accepted psychological technique. Anchoring is a technique whereby a word, a phrase or a theme is repeated. It is repeated from the same spot, with the same gestures, with the same facial expressions, the same tone of voice, and with the same mannerisms. One use for anchoring that everyone can remember was done by the late great Jack Benny, who had a certain way of folding his arms, putting his hand under his chin, and saying the word, "Well...." Pretty soon he was getting laughs without saying the word and then he did not even need to put his hand under his chin. He just used part of the gimmick and the anchor worked.

Anchoring causes an association of the subject matter anchored with an emotional response that is initiated by the repeated use of the anchoring technique. In essence, it communicates our theme impactfully on an emotional level. Because of the pipeline, the theme is easily recalled and therefore is more likely used. …

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I wrote earlier about the Theory of Constraints. Assuming we buy into the theory and want to increase efficiency by getting rid of the largest bottlenecks. What are the bottlenecks in a law firm? Here are the ones that immediately come to mind.

1. The lawyer - As a sole practitioner, there is only so many items I can review, or tasks I can perform in a day. Regardless of how efficient I am, there are only so many 'touches' the lawyer can have.

The solution: minimize the amount of things the lawyer needs to do. This involves standardized letters and forms, checklists for the employees and standardized questionnaires for screening and client intake.

It also means standardizing the best of your work, so that your paralegal knows where it is without interrupting you.

2. Generating paperwork - Regardless of how efficient and productive your paralegal is, there is only so much paperwork she can crank in a day.

The solution: A good document generation system can help ease this constraint (or bottleneck). When filing a complaint, typically the same procedure is followed. The computer should be able to generate the Complaint, Civil Court cover sheet, standard discovery requests for the type of case, plus a letter to the Clerk of Court requesting the Complaint be filed and a copy returned to you. Even with an efficient paralegal, the computer can generate these forms quicker.

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Imagine being able to sit down with one of the best lawyers in the state for 10 minutes of advice. Now multiply that by 100. That’s what the Texas Young Lawyer’s Association did. They took a video production crew around the state for several months, videotaping 10 minute presentations from some of the best lawyers in Texas. Robert Ambrogi describes the project well:

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David Dempsey’s  Legally Speaking: 40 Powerful Presentation Principles Lawyers Need to Know is in my pantheon of top five favorite law books. David does a great job of breaking down public speaking, how to organize a speech, how to start it, how to end it, how to practice and refine the speech and so much more.

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PowerPoint gets a lot of bad press. There’s nothing wrong with the software, but there’s a ton of bad PowerPoint presentations out there. I think PowerPoint allows a bad presenter to give bad presentations more easily. Cliff Atkinson’s book Beyond Bullet Points: Using Microsoft PowerPoint to Create Presentations That Inform, Motivate, and Inspire does a great job of moving away from the horrific presentations we’re used to.

Cliff urges us to consider what the audience wants to know and how the information will help them. Then take that information and put it in a classical Greek story format so that you’re not just giving facts, but telling a story. Good stuff. Cliff has also set up a template to help people storyboard and turn their information into a story. As a trial lawyer, I appreciate Cliff’s structure and find it helpful, but don’t feel the need to follow it 100% of the time.

I’ve also been reading Presentation Zen by Garr Reynolds recently. Garr uses the same concepts as Cliff; e.g. getting away from bullet points, working to focus on what the audience wants to hear and using carefully selected graphics to anchor the points. Garr is an American living in Japan and when focusing on simplicity he focuses on a zen approach. As Garr quotes "Simplicity means the achievement of maximum effect with minimum means." — Dr. Koichi Kawana

For trial lawyers this is important stuff. How do we get across information so that people will actually understand and accept the information? It’s not enough that we say things, it has to be understood, accepted and internalized by the juror or audience member. If we don’t have that, we’re just talking in the wind.

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While in Atlanta for Auto Torts, in addition to my South Carolina buddies and meeting Atlanta friends Richard Jones and Mark Zamora, Gary Hill came out to join us. One of the great things about having a weblog is the people that you meet. Gary is considering starting his own blog, so I was able to con Gary into writing a guest post. Take it away Gary:

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To effectively convey the scope of your client’s injuries it’s important to actually know anatomy and physiology. If you haven’t taken courses in anatomy in undergrad, there is a cheaper way than going to night school. The Insurance Defense Blog points out  the Teaching Institute’s course Understanding the Human Body: An Introduction to Anatomy Physiology. The course consists of 32 lectures, each 45 minutes long, on DVD or videotape. It is currently on sale for $129.95. Dave Stratton, the author of Insurance Defense Blog bought the course and enjoyed them.

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An Orthopedic Group in Colorado Springs has set up a Spine School on the internet. A lot of great information in simple to read and easy to understand format. Their Spine School includes general information on the anatomy of the back, general problems with the back, tests and procedures to fix the back.

It’s a great resource for clients with back problems, or anyone in your firm that is new to injury work. Thanks to Janabeth Fleming Taylor for the heads up.

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Showing jurors x-rays can be a powerful tool. Especially if your client has a prothesis or hardware. The hardware is a vivid way to make real the pain and difficulties your client has gone through. Assuming you have a laptop and a projector, you can easily get the x-rays into your computer.

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I’ve been reading a goodly amount about George Lakoff and cognitive science. If you haven’t been following cognitive science, George explains it below:

One of the fundamental findings of cognitive science is that people think in terms of frames and metaphors -- conceptual structures like those we have been describing. The frames are in the synapses of our brains -- physically present in the form of neural circuitry. When the facts don't fit the frames, the frames are kept and the facts ignored.

It is a common folk theory of progressives that "The facts will set you free!" If only you can get all the facts out there in the public eye, then every rational person will reach the right conclusion. It is a vain hope. Human brains just don't work that way. Framing matters. Frames once entrenched are hard to dispel.

That’s why issues like sequencing, as Greg Cusimano suggests are so important. Cognitive science is a matter of breaking down and proving the power of story telling that we trial lawyers have known of all along.

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I have always loved this Thoreau quote: "Some circumstantial evidence is very strong as when you find a trout in the milk."  Henry David Thoreau, 1817-1862, W. H. Auden and Lewis Kronen Berger, The Viking Book of Aphorisms, 1962.

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A friend recommended the book "The Four Agreements" by Don Miguel Ruiz.

It is a helpful guidepost in both my professional and personal life.  Here is a summary of what I learned.

The Four Agreements
Don Miguel Ruiz

1. Be impeccable with your words
   • Speak with integrity
   • Do not injure with your words
   • Take responsibility for your actions
   • Do not judge, blame or reject yourself
   • Use your energy in the direction of truth
   • Refrain from gossip
2. Don't take anything personally
   • Your point of view is personal
   • What others think is about them
   • Live & love without fear
   • Be truthful to yourself
   • Trust yourself
3. Don't make any assumptions
   • Express what you truly want
   • Ask questions
   • Make sure communication is clear
   • Accept people as they are
   • Don't assume that others think, feel or judge as you do
   • Take action to clearly communicate
4. Always do your best
   • It will help you avoid self-judgment and regret
   • Expressing what you are is taking action
   • Do it because you love it
   • Take action without expecting a reward
   • Let go of the past and live in the present moment
   • You are alive, so take your life and enjoy it
   • Learn to accept yourself
   • Learn from mistakes
   • Practice makes the master

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Thomas Jefferson was a scientist, philosopher, inventor, gardener, reader, and wine lover.  Jefferson's 11 Rules of Conduct were not always followed even by Jefferson. 

Jefferson's Rules of Conduct are:

1. Never put off tomorrow what you can do today
2. Never trouble another for what you can do yourself
3. Never spend money before you have it
4. Never buy anything that you do not want because it is cheap
5. Pride costs us more than thirst, hunger and cold
6.  We seldom repent from having eaten too little
7. Nothing is troublesome that one does of his own volition
8. How much pain, never occurred events cost us
9. Take things always by their smooth handle
10. Think as you please, and let others as well, to prevent any disputes
11. When annoyed, count to ten before you speak; if very annoyed, count to 100

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Hidden brain injuries are one of the most difficult medical cases to put together.  The medical findings are subtle, the clues nebulous, but the results are dramatic. If you have a case where the injury or event COULD have produced a head trauma or a brain injury, and a medical history suggesting that your client is experiencing difficulties, look closer at the possibility of a hidden brain injury.  Impact to the case and for the client is significant.  There are a lot of checklists, but here is one that can be helpful:

Yes_____    No_____    Reduced attention and concentration
Yes_____    No_____    Memory problems
Yes_____    No_____    Decreased frustration tolerance
Yes_____    No_____    Easily angered
Yes_____    No_____    Anxiety
Yes_____    No_____    Overreaction to events
Yes_____    No_____    Depression
Yes_____    No_____    Decreased emotional responsiveness
Yes_____    No_____    Reduced reasoning and problem solving
Yes_____    No_____    Difficulty following directions
Yes_____    No_____    Misunderstanding what is said by others
Yes_____    No_____    Impulsive or inappropriate social behavior
Yes_____    No_____    Reduced judgement
Yes_____    No_____    Decreased insight into self and others
Yes_____    No_____    Difficulty establishing and maintaining relationships
Yes_____    No_____    Difficulty on the job or at home               
Yes_____    No_____    Headaches
Yes_____    No_____    Nausea
Yes_____    No_____    Dizziness/balance problems
Yes_____    No_____    Muscle weakness
Yes_____    No_____    Numbness and tingling
Yes_____    No_____    Fatigue or difficulty sleeping
Yes_____    No_____    Blurred vision
Yes_____    No_____    Ringing in ears

If your client is experiencing a number of these problems, or family members suggest there are problems, a complete evaluation by a team of experts is warranted.  I typically set up IMEs with neuropsychology, neurology, ENT, Occupational Medicine, and Vocational Psychology–and share reports from each with all the others.  ENT typically performs  ENG and  ABR testing to determine if problems are coming from a central (brain injury) cause.  Neuropsychology performs a wide battery of testing to determine cognitive function and loss.  Be sure you ask for a GAF score (see previous blog posts about this).  Neurology helps document status and future treatment.  Occupational Health gives a global overview, provides restrictions based on physical and emotional factors, and discusses ability to perform essential functions of work. Finally, the Vocational Psychologist and/or Evaluator provides opinion on ability to return to work, transfer into new work, or remains unable to be employed.

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Settlement demands and final settlements hinge on medical costs:  past, present, and future.  This is not always easy to figure out.  Medicaid Liens have to be repaid.

Other settlement considerations include Annuities, special needs trust funds, rated age, Medicare Conditional payments have to be repaid.  The Client typically has out-of-pocket expenses that need to be reimbursed.  Private health insurance carriers post liens against settlements early in the game. And now the Federal Government says future costs covered by Medicare have to be reasonably considered, and set aside in a special account, as well. Beginning in 2006, prescription medications are also included, which has greatly complicated this process.  Has anyone tried to figure out the “donut hole” yet?

As a Medical Case Developer for Worker’s Compensation cases, I am often involved in the money aspects of a case.   I first determine if the client is eligible for Medicare considerations.  Has he/she applied for Social Security benefits?  Is he/she already receiving SSDI/Medicare benefits due to disability or age?  Is the settlement over $250,000?  Actually these questions should be asked at the beginning, in the middle, and at the end of each and every case you have.  There should be no surprises when settlement day comes.

Then I prepare a Disability Cost Projection, which can be described as a mini-life care plan.  This calculation considers only the current treatment, including physician visits, diagnostics typical for injury diagnoses, medications, and probable surgeries coming up.  Yearly costs are multiplied over the normal life expectancy.  The total cost can be quite surprising.  Even if the client is only on a couple of prescription medications, they add up significantly.  For an exercise in this, find www.drugstore.com and type in Celebrex, which is a common medication prescribed for orthopedic injuries.  Taken 4 times a day, the cost quickly adds up to over $500 per month, which is $6000 yearly, and $180,000 over a 30 year life expectancy.

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You order medical records, you talk with doctors, they tell you stuff, but ever wonder what it means?  Recently I had to look up some “signs” to understand exactly what the doctor meant.  This might make a good reference as you read the medical reports:

    *    cogwheel phenomenon: jerky motions produced on testing a
         muscle’s strength, the jerks are neither rhythmic nor equal and
         represent malingering or protection from pain
    *    SLR: straight leg raising or Lasegue, for determining nerve root
          irritation, while lying down, the patient elevates his leg straight until there is back pain, or until
          the pain is increased with flexion of the foot
    *    valsalva maneuver: for determining nerve root irritability within the spinal canal, patient takes a           deep breath and then on bearing down (such as a lifting task) notes if pain occurs or is      
          increased
    *    long tact sign: any sign that one would see in affection of either sensory or motor tracts in the               spinal cord
    *    romberg test: for differentiation between peripheral and cerebellar ataxia (useful in
         determining central brain cause)

                                   
For more terms like this see www.orthoteer.co.uk/Nrujp .  Now on to malingering tests: You are talking with the doctor, and he says “well, he does have positive Waddel’s signs” so I can’t really support a back injury”.  You nod in agreement, but inside are wondering “what is he saying?”  So here goes:

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The title of Medical Case Developer is a new one for me.  I have been a Nurse, a Nurse Case Manager, a Nurse Life Care Planner, and a Nurse Disability Management Specialist for over 30 years but have only recently put together all this experience and skill into helping attorneys truly develop their cases. Being a Case Developer is different than managing a case, or planning for future treatment with costs, or getting the client to MMI.  Developing a case is actually working with the attorney in moving the case from a value of $100,000 to a value of $250,000 or $400,000 (remember SC Worker’s Compensation benefits are extremely limited!) or in the millions for personal injury cases.  And of course, while developing the monetary value of the case, I am also (first and foremost) interested in assuring that the client receives the very best medical care for every condition caused by the injury.

When Attorneys ask me to work on a case with them, it is usually because the case is a very involved and challenging file with lots of medical complications and conditions: such as a back injury with a transverse myelitis which led to a paralysis which led to a stroke, etc.  These are usually fairly easy to figure out and link up, takes a lot of work, but medically and scientifically doable.  The ones that pose the most challenge are the ones with hidden causes, or obscure reasons, or those that just don’t make “common sense”.  Like the one we did recently that was a chemical exposure that led to an auto-immune disorder that led to cardiac failure that led to a stroke that ended up a brain injury. Or the back injury (admitted and accepted) that developed into an aggravated Hepatitis C case that resulted in cognitive disorder (not admitted or accepted) which we put together and prevailed for lifelong benefits and medical treatment.

Every case has the potential for more value, even a simple orthopedic case. My goal in developing cases is to look for more diagnoses, more restrictions, more impairment, and to move the case through temporary partial disability to temporary total disability to permanent total disability to lifelong benefits for the Worker’s Compensation cases.  In Personal Injury cases the goal is to not only set up for causation but to quantify damages. But how do I develop a case?

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As a medical-legal case developer, I often have cases where “emotional overlay” is an issue.  Insurance Carriers love to see this phrase so they have another basis for denial of the claim.  However, when chronic pain is an issue there is bound to be “emotional overlay”; when there is financial difficulties (no work, no money), there is bound to be “emotional overlay”; even when there is pre-existing depression, there is bound to be “emotional overlay” caused by the injury.  Many of my clients are unable to work or resume normal social activities due to this “emotional overlay”. So, how to we get this condition diagnosed, quantified, and linked to the work related injury and/or treatment?

Physicians recognize depression in their patients and sometimes will refer to psychology for work-up–they can diagnose for me.  Psychologists and psychiatrists can assign a Global Assessment of Functioning (GAF) score under the DSM-IV, Axis V diagnoses table.  The GAF score describes a person’s ability to function based on behavioral characteristics.  A score of 81-90 describes most of us on a fairly consistent basis: Absent of minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns.  A GAF score of 51-60 describes many of our clients who have suffered loss of job, loss of financial security, loss of self-esteem, has chronic pain, and in serious interpersonal difficulties: Moderate symptoms OR moderate difficulty in social, occupational, or school functioning. Psychologists tell me that a GAF score in this range or below indicates severe inability to maintain a job–so they can quantify for me. Look at www.bsu.edu/csh/ssrc/media/pdf/gafpage.pdf for more information.

In order to get this problem linked to the injury, I need a Global Assessment of Functioning evaluation from a qualified Vocational Psychologist who will issue a report containing an opinion, to a reasonable degree of psychological certainty, that the injury and its sequelae have caused, contributed, or aggravated an emotional/behavioral impairment resulting in disability. Using a combination of AMA guides, this disability can be assigned an impairment rating as well.

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Personal injury contracts are almost always the same in content and language.
From time to time, however, a potential client may call you to talk about an unsafe drug or product heard
about in the news or on television on the internet.

In my opinion, the worst thing an attorney can do is,
presuming there is not a statute of limitations
problem - simply have that client sign a pro forma
contract that covers a typical claim such as an automobile accident or premises claim.     

If you complete your initial research and think a person 
may have a claim, I would consider a case specific contract, such as one that involves a claim against a drug maker
and an unsafe drug.  

In my office, our unsafe drug case contracts have the language listed in addition
to the standard language regarding fees and costs:

The first paragraphs detail fees and costs issues, the scope of the engagement, and
other standard language. I also include:

Court-awarded fee: Client agrees that in the event extraordinary
services are required, Law Firm may apply to the Court for greater
compensation.  In the event that Law Firm is awarded a fee by a court that exceeds the percentages, the
court-awarded fee shall apply in lieu of the above amounts.
 
Claims Excluded From This Engagement:  This Agreement
does not cover other related claims that may arise and
may require legal services (for example, medical
malpractice claims).  Client understands and agrees
that Law Firm will not investigate or pursue any
medical malpractice action or any other action against
Client’s doctors or medical caregivers.  Should Client
wish Law Firm to handle matters in the event they
arise, separate written agreements are required.


Common Benefit Expenses: Law Firm may incur expenses
on behalf of multiple clients in connection with their
individual matters (“Common Benefit Expenses”).  If
Law Firm spends $1,000 to hire an expert to reach an
opinion on a topic affecting many clients, rather than
charging the entire $1,000 to the first client who
utilizes this expert, the firm spreads the costs among
all other clients in the group.  If Law firm has 10
clients being represented in similar litigation, each
client is charged $100 of the expert fee instead of
the first client being charged $1,000. Client agrees to 
common benefit expenses being charged. 

MDL Fees and Costs

Law Firm may enter into an agreement with a
Plaintiffs’ Management Committee for a Multi-District
Litigation (MDL) established to obtain information
against multiple Defendants.  Only if Law Firm enters
into this agreement, Client agrees to pay a percentage
of the gross settlement of every case they handle (if permitted by 
the Court), which percentage is generally two to three percent of
the gross settlement.  If this MDL assessment is
charged, Law Firm typical pays half the assessment out
of our attorney’s fees and half the assessment may be
charged to our clients as a cost of litigation.
 
Those issues both relate the pitfalls of being
expected to investigate a medical malpractice claim,
and the potential to be assessed an MDL fee down the
road.

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