December 15th, 2017

It Only Affects 14,000 Doctors. And Their Patients.

New York’s largest medical malpractice insurance company is owned by its doctors. But pretty soon, it will be sold to Warren Buffet’s profit-hungry Berkshire Hathaway. And that’s gonna be a problem.

That company is Medical Liability Mutual Insurance Company, which insures over 14,000 New York doctors and is one of the largest such companies in the nation.

And when its doctors are sued for negligence they hire some of the most competent trial lawyers in the city. Doctors, after all, are not shy about demanding the best.

Many of the current gaggle of defense firms were created from the mid-90s dissolution of Bower and Gardner, one of the largest — if not literally the largest — medical malpractice defense firms in the nation.

Unlike BigLaw firms that do “litigation” these folks actually go out and try cases, and know how to do it well. While every large firm has its bad apples, and this biz is no exception, their reputation is, on the whole, excellent.

So what are the ramifications of this sale to a publicly traded company? For doctors? For patient/litigants? For lawyers?

For doctors, I think this is a losing proposition, regardless of the dollars involved when they get bought out, and my reasoning is simple. Currently, MLMIC owes its allegiance to the doctors that own it and run it. But once sold to Berkshire Hathaway, company loyalty shifts to the shareholders. Warren Buffet, after all, is buying this business for the profits it will make for its shareholders. In fact, the very essence of a publicly traded corporation is that fiduciary duty to the shareholders.

It doesn’t matter if you call that profit motive a bug or a feature of capitalism, that’s the way it is. It’s a plain fact that publicly owned companies and privately owned companies owe their loyalty to different constituencies. Wall Street demands profits, and they don’t care too much whose hide it comes from.

How will this manifest itself? First, by trying to trim costs, of course. And part of that will likely mean trying to trim legal fees.

I fully expect to see a new raft of medical malpractice defense firms, who will pitch their business to Berkshire by undercutting the rates of those that currently lead the defense bar. They will try to trim their prices by focusing more on volume, less on quality. And these firms will hire less experienced (cheaper) attorneys to do the work, so that they can give that lower legal rate to their new masters at Berkshire.

And that will be very bad for the docs.

One of the great advantages that small firms have over large ones is that the small firm lawyer generally knows everything there is no to know about a case — every nuance. But when firms do volume, that nuance is lost. The experienced small firm lawyer that sees a constantly shifting parade of big firms come in on a case with inexperienced lawyers has an advantage.

How does this affect the patients, who are now litigants? Well, if the case is part of a volume practice for the defense firm, it is less likely that a savvy defense lawyer or adjuster will recognize the dangers ahead and move to settle the case. The matter gets prolonged.

Now a case being prolonged isn’t always bad for an insurance company, as they make money by investing the float — those premiums that they have taken in but not yet paid out in claims. The insurance business model is, of course, to take in as much as you can in premiums, pay out as little as possible, and invest the money in the interim.

In my younger days, no medical malpractice case ever settled until jury selection, even if a sponge or clamp was errantly left behind. In recent years, however, the insurance carriers have become more savvy and recognized they could get a discount with an early settlement on clear liability cases, and that this discount (along with savings on the legal fees) might well exceed the interest on the float that they might make by stalling. (If interest rates go up, of course, that could change.)

On the one hand, this delay could be very bad for desperate plaintiffs who might not be able to work anymore. The reality, however, is that this scenario is already exploited when possible.  Desperate plaintiffs don’t do as well, in general, as “tell ’em to go pound sand” plaintiffs. The delay tool is used in some cases, but not all.

But once they get to trial, plaintiffs will magically have the driver’s seat. Now there’s  a jury to be reckoned with. The discount factor for early settlement has evaporated, and settlement demands may become more firm, or even rise (as I’ve done on multiple occasions).

My opinions stem, in part, from the fact that Berkshire owns other insurance companies, one of which is Geico. Geico doesn’t exactly enjoy the best of reputations in New York, and on many occasions I think it has put its own insured at risk of excess verdicts due to a refusal to make early good faith settlement offers.

And one would naturally expect the new MLMIC to follow in those footsteps as they will now answer to the same masters. The problem, however, is that an excess verdict means a hell of a lot more to a doctor than it does to a minimum wage worker with a minimal auto policy.

Will the Gecko treat doctors the way it now treats others that it insures? The best guess from my little corner of cyberspace, is yes. I don’t think that selling itself to Berkshire will end well for the doctors.

I would not be surprised at all if, within 5 years, a new medical malpractice insurance company is born in New York, once again owned by doctors, with the interests of doctors as its priority, instead of a bunch of Wall Street traders.

The deal is expected to close in the first quarter of 2018. It was first announced last year.

 

June 23rd, 2017

NY Leg Advances Change to “SUM” Legislation (Updated!)

The last two days I covered action in the New York Legislature to change the medical malpractice statute of limitations and make a modest change in where lawsuits can be brought (both of which still need the signature of the Governor).

Today, I cover a third piece of legislation, which while exceptionally important is virtually unknown to most. These posts come in a flurry because that’s how our Legislature works, passing bills  in a frenzy in the closing days of the annual January-June session.

This particular legislation refers to Supplementary Uninsured/Underinsured Motorist (SUM) insurance.

Stop!!! Don’t leave!!!  Trust me, while the issue sounds boring, it could be the difference between bankruptcy or not to anyone seriously injured.

In New York, we have particularly crappy minimum levels of insurance, known as 25/50 on non-commercial vehicles. That means that, if you are injured by someone with such minimal insurance, no matter how badly, the most you can obtain from that insurance policy is $25,000. (The 50 refers to the aggregate of all claims from the collision.)

And if badly injured, you can’t work and pay your bills. Which is why bankruptcy is not uncommon amongst those victimized. Unless you protect yourself.

Unbeknownst to most folks, there may be a second policy at play — your own — if you own a car. This is the SUM insurance if the car that plowed into you and broke your back has that minimal insurance.

Now here’s the catch, and the reason I write: The default on the SUM policies is a mere 25K. So even if you are a high earner, bringing home the family bacon, and have a $500K bodily injury policy of  your own, it won’t matter if you don’t read the fine print. Because that $500K is only to protect the person that you injure. It isn’t for yourself.

Yeah, it’s in the fine print. Most don’t know about it. Even one legislator I spoke to a couple of years ago was so unaware of it that, when her child was injured, was stuck with that minimal policy. She had no idea.

And, before I get to the legislative fix, one more point. That SUM policy only comes into play if your own policy is larger than the car that hit you. So, in other words, if the car that ran the light and clobbered you had a 25K policy, and you have a 25K SUM policy, you don’t get an extra 25K, because you would only be entitled to the difference between the two.

OK, now on to the fix. The New York Senate passed a bill (S5644A) in the waning hours of the legislative session to change the default from 25K SUM insurance for yourself to be the same as the amount of bodily injury coverage you have selected to protect others.

So if you have a 500K bodily injury policy, your default would be 500K SUM. You can, of course, decline it if you want. But most people who feel the need to buy insurance at higher levels aren’t the types of people who generally would decline.

This bill passed, as had the medical malpractice bill and the venue bill, with wide bipartisan support. And by wide I mean 62 out of 63 votes.

Unfortunately, the legislature adjourned for the session as the Senate passage came too late for the Assembly to vote. It will only come to the Assembly floor if they are called back into session, a possibility given that there is a large, unresolved issue of mayoral control of NYC schools.

Otherwise, it is wait till next year.

In the meantime, if you are renewing your auto policy, look for that part about SUM coverage and make sure you get as much as you can. It is, relatively speaking, dirt cheap, which is why your broker may not even bother to mention it to you. But it can make all the difference in your life if some underinsured car clobbers you.

And one day I’ll come back to discuss our ridiculously low 25/50 auto insurance policies.

Update (6/29/17) – Gov. Cuomo called the Legislature back to Albany for a special session, to deal with the issue of mayoral schools. And any other lingering issues.

So late last night, by a vote of 104-6, the Assembly joined the Senate in passing the SUM bill. It goes now to the Governor for signature.

This is a very big deal, as all too often we see cases of people with decent insurance getting hit by cars with little insurance, and the victims then find out to their own dismay that they could have easily and cheaply covered themselves for this event, but didn’t. Now that coverage will be the default.

 

 

June 1st, 2017

Crashing Through the House

Daniel Sajewski drover his mother’s Mercedes right through a house

When I write a headline entitled “Crashing Through the House,” it’s most likely because the car and driver literally crashed through a house.

We start our little story back in 2012 when 23-year-old Daniel Sajewski, Jr. crashed his father’s Mercedes in through the front picture window of a home and right out the back. You can see the picture here — in through the front and right out the back.

Ya’ think there might be some law out of this? That’s why I’m here. You’re welcome. Let’s get started.

First off, and coming as no great surprise to anyone, Sajewski was bombed out of his mind, blowing .30 on the breathalyzer, more than a wee bit over the limit in any jurisdiction that has any laws at all. (Depending on which story you read, he was downing shots of Jack Daniels, tequila and drinking beer.)

And then there was the part about Sajewski asking his then-girlfriend Sophia Anderson to take the rap, and claim she was the driver. He promised, according to news reports, to cover her legal bills and take her on vacation.

I’m betting you’ve already guessed that this deal, shall we say, came apart.

Sajewski had, at the time, six outstanding warrants on six different cases, suggesting he was not exactly a leading light in his community. He’d been charged with drinking on the subway, possession of marijuana and failure to complete community service for a previous conviction.

He had a record for petty theft and other drug possession charges, as well.

Sajewski ultimately pled guilty to driving while intoxicated, reckless endangerment and making false statements. He was sentenced to one-and-a-half to three years behind bars.

Now this is the part where I come in, the civil side. State Farm, which insured the house, coughed up 180K in insurance proceeds resulting from Sajewski’s demolition derby. (The two 90+ year old sisters who lived there were both unharmed.)

State Farm wanted its 180K back, and sued the driver, Sajewski, Jr. as well as his father, Daniel Sajewski, Sr., as Papa actually owned the car.

Papa Sajewiski said, in effect, let me out of this suit because my ne’er-do-well kid took the car without permission.  Not my fault!

Junior Sajewski supported his papa, and agreed that he took the car without permission. (I know! You’re shocked that Junior would help out his papa after wrecking the house of a couple of 90+ year old sisters and wrecking dad’s fancy car!)

But. Not so fast. In New York, it’s not just drivers of cars that are liable for the damage, but the you see, the owners also. (VTL 388(1)). This makes sense because owners are in the best position to evaluate the competence of the people they lend their cars to.

In the trial court, the judge said in legally sounding language, no way, no how, you ain’t getting out of this suit. Owners are responsible too.

But Papa pointed out that, while there is a strong presumption of permissive use of the vehicle, that presumption is rebuttable. And look here at the two affidavits of Papa and Junior, both saying that there was no permissive use.

Papa appealed. And yesterday, he got shot down again, this time by the Appellate Division, Second Department.

The court was pretty clear about this. For even though the testimony of no permissive use was un-rebutted by any other source, that is not always enough. While the court didn’t write the back story with four-part harmony (and feeling), it had the briefs. And they noted that the improbability of a story, or the interests of the witnesses, could effect how a jury perceives the evidence. The court wrote that:

 [i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury’

So the question will, one day, go to a jury, where it belongs. Because questions of fact aren’t for the court.

And given the long history of legal trouble that Junior’s been in, I’m willing to bet that a jury will wonder why Papa didn’t hide the keys if he really didn’t want Junior to drive. And I’m not the only one to wonder why, as the court noted:

Daniel [Junior] had access to the appellant’s [Papa] residence. Further, the key to the vehicle was kept in a “central location” inside a bin located in the kitchen of the appellant’s residence. Additionally, on previous occasions, Daniel had been permitted by the appellant to drive other vehicles owned by the appellant.

Just remember this story the next time you loan a car to someone that might be somewhat less than reliable. Because you can be on the hook.

 

November 11th, 2015

Did David Aylor Really Cut and Run after Walter Scott Shooting?

David Aylor, initially hired by the insurance company to defend Slager.

David Aylor, initially hired by the insurance company to defend Slager.

You remember Michael Slager, don’t you? He’s the cop that shot Walter Scott in the back down in Charleston, South Carolina in April of this year. I pilloried his attorney, David Aylor, for first taking the case to defend Slager, then when the video surfaced and Slager was charged with murder, Aylor suddenly quit. And then yapped to the press about it. (See Enthralled With the Press).

Aylor was widely quoted as saying:

“All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can’t confirm from an attorney-client standpoint what the reason is.”

Damn that sounds bad. The  implication to me, and many others, is that Aylor was not going to rep this loser. Even though that is what criminal defense lawyers are often asked to do.

Now we have a pretty damn good update — Michael Slager has sued over the incident. Sued?! Sued who, I hear you ask.

Sued his insurance company, the Southern States Police Benevolent Association, Inc., which issues polices of insurance. For it was the insurance company that apparently hired Aylor, and the insurance company pulled the plug on the representation. (Slager v. SouthernStatesPBA)

And here’s the thing — Southern States did this, according to the complaint, within a day of the video surfacing.

According to the complaint, Slager was paying every month for his legal coverage that included this:

“The Legal Defense Benefit will be provided to Southern States PBA members only in those cases where a lawsuit or criminal accusation results from professional acts or omissions which arise out of and in the scope of their duties as a law enforcement officer.”

“The Benefit shall consist of the payment by Southern States PBA of attorney’s fees and directly related Court costs.”

“Coverage under the benefit is intended to apply to cases where a member has taken some type of direct law enforcement action consistent with his/her responsibilities as a law enforcement officer.”

ScottShootingSeems pretty straightforward, right? No matter how awful his conduct, he was clearly undertaking some type of law enforcement action — he wasn’t sitting at a desk making management decisions on which new clerk to hire.

The cops even get a wallet card that specifically deals with shootings:

  • “ALL SOUTHERN STATES PBA ACTIVE MEMBERS RECEIVE THE FOLLOWING LEGAL DEFENSE BENEFITS WHILE ACTING WITHIN THE SCOPE OF THEIR LAW ENFORCEMENT DUTIES.”
  • “SHOOTING: FOR ANY DUTY RELATED SHOOTING OR ACTION WHICH RESULTS IN DEATH OR SERIOUS INJURY, AN ATTORNEY WILL BE SENT TO YOU. CALL EMERGENCY 800 NUMBER ON FRONT IMMEDIATELY!!!”
  • “… ASSISTANCE IN CRIMINAL MATTERS EXCLUDE INTENTIONAL CRIMINAL ACTIVITY OR DRUG RELATED CRIMES.”

Except for this exemption clause:

“Southern States PBA reserves the right to withhold approval of any benefits and to withdraw approval of any benefits if it is determined at any time that the member has committed an intentional, deliberate and/or illegal act, either civilly or criminally.”

Now there isn’t any question that Slager was acting in the scope of his employment when he shot and killed Scott. His employer will be liable for any civil claim against it.

But if I read the complaint right, the insurance company is happy to give him a criminal defense as long as he is determined not to have done anything illegal?  An illusory and toothless contract?

This is the guts of the legal filing insofar as it pertains to Aylor and the April 4th shooting:

After requesting benefits under the Legal Defense Benefit plan, Defendant Southern States PBA granted Officer Slager’s request and assigned attorney David Aylor to represent Officer Slager in defense of the Scott murder charge.

On or about April 7, 2015, Attorney Aylor suddenly and summarily terminated his representation of Officer Slager.

Aylor took a lot of abuse for a few things: (1) cutting and running;  (2) yapping to the press about it, and (3) allowing Slager to be interrogated despite the fact that he had only the word of his client to go on.

But it now appears that the reason for the cut and run was that he wasn’t getting paid.  Aylor, it appears, wasn’t going to take on a very substantial and high profile murder defense without Mr. Green showing up to help.

There is this:

In a letter dated April 8, 2015, Southern States PBA explained that “upon review your [the] case,” it would not provide benefits under the intentional acts exclusion as it had determined that Officer Slager had “committed an intentional, deliberate and/or illegal act, either civilly or criminally.”

As per the suit, this was a one-day investigation, which is to say, that insurance company folks saw the video and saw a way out of the contract to defend and that, according to Slager, was bad faith.

This is not to say that Aylor’s conduct was the height of perfection, as he made dumb comments, allowed his client to be interrogated when he didn’t have all the facts and left the impression that he was running away from an unpopular client after seeing the video.

But this suit does seem to clarify the real reason he quit: He simply wasn’t getting paid by the insurance company.
—————–
Elsewhere: At Death and Taxes:

When it comes to police who fuck up, no matter how awful a fuck up it is, they can usually always count on the local police union or fraternal organization to staunchly defend them and slander their critics.

That is, apparently, unless you’re Michael Slager, the South Carolina cop who was caught on video shooting unarmed civilian Walter Scott in the back.

Guess cold-blooded murder proved to be too much for the Southern States Police Benevolent Association (we’re surprised too!), because the organization, to which Slager had paid dues for legal representation while active on the force, dropped him the day he was charged in the killing of Scott.

 

October 21st, 2015

The Kool-Aid Drinking Lawyer

Helene Blank

Helene Blank

Even though Helene Blank has tried cases for both defendants and plaintiffs, and has been doing so since 1979 in roughly 130+ trials, and lectures widely, she is still stunned by what she sees.

She last appeared here in a good rant about bad faith and insurance companies.

She guest blogs today on lawyers that have surrendered their objectivity, and with it their ability to actually assist their clients…

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Kool-Aid drinkers to a plaintiff’s lawyer are defendants’ lawyers who, no matter how stark the evidence that the plaintiff is seriously injured, refuses to believe it and does everything they can to make sure your client isn’t properly compensated for their injuries. The insurance company must be protected from really hurt people at all costs.

I always thought the true Kool-Aid drinker was really a mythological beast not any more real than Bigfoot, Yeti or a werewolf. That was until last week.

I ran into a defense lawyer I hadn’t seen since we tried a damages only case of a client of mine who was irreparably and horribly injured from the accident caused by her client. This poor, sad soul developed what is known as RSD or CRPS – which stands for Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome — the people who have the true misfortune of getting this call it CRAPS — ’cause that’s what your life becomes, crap.

This syndrome happens to an unlucky person after an injury, their brain just goes haywire – and the affected limb is in constant unending pain. You become hypersensitive. You can’t be touched, you can barely wear clothes, you can’t use the limb, and it atrophies or wastes away.

This poor soul had even worse misfortune when the CRPS jumped from his left arm to his right leg — a not unknown phenomenon for these poor people.

His life as he knew it was ruined. He couldn’t sleep in a bed, be touched by another human, not his wife, not his children. He had a pain pump inserted into his spine in the hopes of gaining some relief.

He routinely begged his doctor to cut off his arm. If only it were that simple and such a barbaric act would cure him. Too bad, but it wouldn’t.

He was unable to really walk and he couldn’t use the affect arm to do much of anything.

The defense had him examined twice by a wonderfully credentialed doctor from one of the best hospitals in the world – the Hospital for Special Surgery. After each exam, this doctor reported that it was his opinion that my client did indeed suffer from RSD/CRPS.

But they never produced that doctor for the trial.

Instead, they hired for trial what plaintiffs’ lawyers in gentle circles call “a witness for hire” to testify that my client did not suffer from this. A witness who spends her career traveling the country testifying against injured victims who suffer from this. This doctor never once examined my client and completely discounted the defense’s medical exams. But okay –I know that’s what defense lawyers do. It’s their job to try and get the best possible settlement for their client.

I understand that, really I do. I was once one of them. But my encounter with this adversary last week so saddened me that it’s hard to get out of my mind.

After we exchanged niceties, she actually said to me:  your client, he’s out somewhere partying with all that money he got and he has finally taken that bandage off his arm. A “bandage” that he wore constantly to protect himself from human touch which he found excruciating.

I was shocked. Truly, absolutely shocked. This seemingly intelligent woman, who had all the truth in front of her during the trial, really drank the Kool-Aid. She just simply refused to believe that this poor man was so badly hurt.

I answered that she must be kidding. Did she really truly believe he was a fraud?

She actually said yes, and said she regretted not doing surveillance on my client. I told her that so did I, if for no other reason than I could have used the footage against her client because all she would have seen was what she saw in court. A beaten, hurt human being whose life was destroyed.

Her bizarre response to that was this made her feel better. It all made me feel so sad for this lawyer whose humanity was somehow lost along her way. It made me realize why I stopped being a defense lawyer a long time ago. I never was going to lose my humanity for any insurance company.