The (Semi) Daily Legal Blog
The (Semi) Daily Legal Blog is designed to provide practical suggestions, in general terms, regarding Andrew Agatston's legal areas of practice. It is a hybrid blog, and so it will occasionally be opinionated. These semi-daily doses of legal information are designed for general information only, and not intended to be formal legal advice nor the formation of a lawyer/client relationship.
Wednesday, March 10, 2010 -- The Legal Eagles Guide for Children's Advocacy Centers, Part II: Soaring Confidently in the Courtroom
I am pleased to announce that my second book, written for the tireless professionals who work in or are affiliated with Children’s Advocacy Centers, has been published. The name of the book is, "The Legal Eagles Guide for Children’s Advocacy Centers, Part II: Soaring Confidently in the Courtroom."
You can view my website page on the 2009 book, "The Legal Eagles of Children’s Advocacy Centers: A Lawyer’s Guide to Soaring in the Courtroom," to learn not only about the book, but also about the vital role that Children’s Advocacy Centers play in our communities. CACs were established to provide services and support for children who alleged sexual abuse or severe physical abuse.
Both the 2009 book and the new 2010 book is available on the Xlibris Publishing website. The 2009 book is also available on www.amazon.com, www.borders.com, and www.barnesnoble.com, and the 2010 will also be available on those sites soon.
I urge you to become familiar with Children’s Advocacy Centers, and support the centers that are in your communities and that are working tirelessly for children and their non-offending parents or caregivers.
Wednesday, March 3, 2010 -- Big Brother in the Insurance Industry
They're watching you, or at least want to. Insurance companies like to hire people with cameras -- they call them "investigators" -- to conduct video surveillance on people who claim to be injured. They may even try to interview some of your neighbors to ask whether they have seen you walking around the neighborhood.
This is especially popular involving employees who claim that they are too injured to work. That's an interesting way to show trust toward their employees. But some employers hire these sleuths to trail the employees in the hope of finding them doing such things as mowing the grass, playing with their children or carrying grocery bags from the store to their cars. Imagine that!
First off, fake claimants are despicable. They are bad for society, and worst for people who have legitimate claims who then suffer from the bad public disdain for these frauds who fake claims. A lawyer who participates in a fake claim is unethical and needs to be reported to the state bar. However, for the vast majority of other claimants who legitimately have injuries, which vary in severity level, surveillance is an overplayed tactic by a perpetually pessimistic insurance industry.
Is there a requirement that an injured person be dead? Or bedridden? Does an injured person need to neglect family responsibilities? Should an injured person not try to enjoy life to the extent she can? These activities that are caught on tape are taken out of context, and expose no more a superficial investigator trying to deny someone justice.
In the end, there is a potential (more so in larger cases) that an insurance company's investigator will videotape an injured person, but that doesn't mean the injured person has to be paranoid and fear doing activities that a doctor advises. One part of healing is getting back to normalcy, even if it sometimes hurts. Most of the times, jurors will see these tactics for what they are -- invasions of privacy designed to deflect responsibility from the wrongdoer in an attempt to blame the injured person whose only role was that he or she was in the wrong place at the wrong time.
Thursday, February 25, 2010 -- The Crime Victim Compensation Fund
When a child is sexually or physically abused, the main and direct concern has got to be the health and well-being of the child. I’ll talk about obtaining much needed assistance for children in these circumstances in posts in the near future.
However, I want to briefly address potential assistance for the non-offending caregiver, such as the natural parents or guardians. Often, a parent must take off for work for long stretches to care for her child and lose income. Sometimes, due to the work absences, the parent is terminated from employment.
In Georgia and other states, the Crime Victim Compensation Program, upon a proper application with proper documentation, will pay for lost wages for the parent in these circumstances. Georgia information on the Crime Victim Compensation Program can be found on the Georgia Criminal Justice Coordinating Council website, where you can download an application for compensation through the program. The application sets forth the requirements for obtaining compensation. The current application time in Georgia is 90 days. Click here to review the website.
Please understand the difference between this limited compensation program, and the civil justice for crime survivors that is available through our civil justice system, and which I highlight on this website, at the "Civil Claims for Crime Survivors" page.
Thursday, February 18, 2010: "Pigs get fed, hogs get slaughtered."
Here's a suggestion for those who have health insurance and who try to use it to treat with doctors for injuries as a result of an automobile accident. If the doctor or her staff asks you whether you want to hold off on filing with health insurance until the end of your personal injury claim related to the auto accident, and then pay the doctor, politely decline.
When I was a younger lawyer, I remember trying to negotiate a case with a lawyer with 40-plus years of experience. I kept trying to get him to put more money on the case, until he finally said, "Andy" -- he called me Andy -- "Pigs get fed, hogs get slaughtered. You're being a hog when you should settle for being a pig."
So these doctors who want to wait until the end of your claim are being hogs. They've made a contractual agreement with the health insurance plan to be a providing doctor, which of course means they will have to accept what the health insurance company pays of their bill, sometimes 40 or 50 cents on the dollar. By attempting to bypass the health insurance company and waiting on the end of the claim, they hope to recover 100 percent of their bill. Hogs get slaughtered.
There are so many reasons why this is unfortunate, uncalled for, and unfair to the injured patient. First and foremost, a patient who is injured in a car wreck should be treated as a patient, not an insurance claim. I tell all of my clients that I believe their case is extremely important and I will never minimize it. But their physical health is even more important, by far. I tell them that I will always stay out of their medical care -- that is a matter between them and their doctors -- because I want their doctor to treat them as a patient, unhindered by any outside concerns such as insurance claims or lawyers.
Yet, these doctors who immediately inquire about whether their prospective patient has hired a lawyer, or is going to hire a lawyer, or who are intimately interested in a potential insurance claim do these patients a disservice. Importantly, there are no guarantees on any personal injury claim. The claim may settle for a very reasonable amount, and enough to pay all outstanding medical expenses. Or a claim may not. Or a claim may go into litigation, which means a jury will decide the amount to award. If it is not enough to cover medical expenses, then it will also be far too late to submit the medical bills to the health insurance carrier for payment. Who's stuck in that instance? The injured person, who could have had these bills paid through the normal channels, had the doctor's office simply submitted the medical bills to the health insurance carrier properly.
But thankfully we live in America. A person who is injured in an auto accident usually has a personal choice of where to be treated. If one of the first things a doctor's office asks about is whether you are going to bring a personal injury claim, and whether you want to wait until the end of a claim to pay them, it might be a good idea to look elsewhere for medical care. Find a doctor who is interested in treating you as a patient first, and interested in healing you regardless of how you got hurt.
Tuesday, February 9, 2010: The slow wheels of the criminal justice system
I recently read yet another article in the newspaper about a woman -- a mom -- who is exasperated by the slowly moving criminal case against the defendant who was charged with beating, raping and strangling her daughter. The crime occurred more than 1 1/2 years ago, and the case reportedly is not anywhere close to going to trial.
This painfully said story is repeated across the country, in large cities and small, as criminal cases languish for a variety of reasons. It is of little solace to the victims' loved ones, whose anger at the legal system increases as the time passes between the crime and the legal conclusion.
The "Civil Claims for Crime Survivors" page on this website lists reasons why victim/survivors and victim family members file civil suits in these instances. Please take a look at the page for the information. A huge one is simple: justice. Civil lawsuits can be filed during the pendency of the criminal justice process. In Georgia, the defendant is served with the summons and complaint -- in jail if need be -- and he is forced to answer the complaint within a 30-day period. After that, by Georgia civil procedure, there is a six-month discovery period, which in very general terms is designed to allow the sides to prepare for trial. After the 6-month period, so long as there are no outstanding legal issues that need to be resolved, the case can be stipulated to a trial calendar, and the case is tried.
Cases that seek civil justice for victim/survivors are some of the most worthy cases that are filed in our justice system. Our legal system has two systems of justice -- criminal and civil. Both are critically important, and both can result in justice for the victim/survivors or the surviving family members of victims of crime.
Tuesday, February 2, 2010: Taking on Truck Drivers Who Are Distracted While Driving
Last week, the federal government banned the use of handheld devices while driving for commercial drivers and bus drivers.
The restrictions take place immediately, and apply to interstate truckers as well as drivers of vehicles that carry at least 8 passengers. The federal government, which for often takes a beating for about everything it does, stands tall here. It understands the dangers of distracted driving to the driving public.
The head of the Federal Motor Carrier Safety Administration calls texting while driving a "high risk behavior." Its data show that people who text while driving take their eyes of the road an average of 4.6 seconds. Think about that! At highway speeds, you can do the math and realize that before you know it, a football field or two or three has passed since the last time a texting driver looks up. The thought of what a driver can miss in 200 yards at 70 mph is staggering.
Distracted driving by use of technology is without a doubt the new menace of the roadways. In fact, it is this area of automobile accidents that I have most focused on in the past several years.
There are monetary penalties for found violations. Additionally, should a trucker who is subject to the ban be found to have been texting while driving, and it leads to a wreck, I assure you that the trucker will be subject to punitive damages, as will his company or employer, along with all of the other damages caused by his actions.
This is equally true for a distracted driver of a passenger vehicle.
The statistics and data are clear of the hazards caused by drivers distracted by technology. A handful of states have an outright ban on handheld devices while driving. I have a personal injury practice in Georgia. Georgia isn't one of them.
Nineteen other states have enacted laws banning texting while driving. Again, Georgia isn't one of them.
There are even states (six of them) that prohibit local jurisdictions from placing texting restrictions on drivers. Thankfully, Georgia isn't on that list.
"I wasn't paying attention" is the growing reason for causing wrecks, by far. It is safe to say that a 20-year veteran driver who texts while he drives is far more dangerous at that moment than a 16-year-old driver with one week's worth of experience behind the wheel.
Wednesday, January 27, 2010 - The Auto Insurance Company's Early Offers of Settlement: Just Say No.
It's always interesting hearing from clients about their initial communications with at-fault insurance company representatives. These are the contacts that occur prior to when the client becomes represented by an attorney. In the run of the mill auto case that involves small properly damage and modest injuries, it's not particularly an issue. Many small matters can be resolved efficiently with insurance companies without resort to legal counsel.
However, when an insurance representative attempts to take advantage of a severely injured party who is unrepresented by counsel, by exacting an early settlement from the injured party, it can cross the line from good faith adjusting to unethical behavior.
A prime example is the person who is severely injured, hospitalized, then released from the hospital, but who is still facing further significant medical treatment. The injured person has enormous burdens -- health, job, family, properly damage, and others. The adjuster from the at-fault insurance company contacts the injured person and starts discussing settlement of the bodily injury claim. The adjuster makes and offer, and pressures the injured person to make a decision.
This is not just wrong, it's unethical. Tell me how the adjuster knows what the injury claim is worth? After all, the injured party has not even started medical treatment. The injured party is still out of work, and will suffer further lost wages. The injured party does not have a certain medical diagnosis, and might be facing a range of medical specialists in order to heal. Yet, the adjuster pretends that he knows what the case is worth, and stresses that this is a claim that can be settled without the need of an attorney.
Remember, once a claim is settled, there's no turning back. If six months later a doctor provides a more severe diagnosis that includes surgery, the insurance adjuster will not care. So remember, if you're injured in an incident and the at-fault insurance company contacts you, you have no duty to discuss the situation with him or her. Instead, focus on your physical health, seek competent and quality medical care so that you can reach your goal of full recovery. And if you have any questions regarding a potential injury claim, contact a competent and qualified attorney.
Wednesday, January 20, 2010: Back to basics – auto accident insurance claims
Let’s tackle some issues that come up after an automobile accident, and when the auto insurance company’s “rapid response unit” for the at-fault driver makes contact with the driver who didn’t cause the collision, but who was injured.
This scenario often occurs when a client comes to me well after a collision occurs, and well after the at-fault driver’s insurance company adjuster has contacted them. The public often hears about “ambulance-chasing” lawyers, as depicted by Paul Newman in one of the early movie scenes in “The Verdict.” I don't know what it's called when an insurance adjuster takes a recorded statement of the car accident victim the day after the wreck, when the injured person is on medication, and dizzy, and hurt, and upset.
I don’t know what to call it; I just know that it happens. A lot.
General Rule: Don’t provide a recorded statement to the at-fault adjuster. Not on Day 1, Day 2 or Day 222. Let the adjuster talk to his own insured who caused the wreck. Let the adjuster wait three or four days for the motor vehicle accident report to be made public, and get a copy of it through his insured or through his company. Most of the time, the police report is going have everything the adjuster needs to make an informed liability decision.
Think about it -- the professionally trained police officer who has investigated hundreds of wrecks in her career, and who is objective in the matter unlike the insurance adjuster, will put the relevant information about fault in her report. Most of the time, the police report will cite a traffic statute violation that the at-fault driver received, and after that there is little or no need to debate the liability portion of the claim.
So then, why is an injured driver getting the pleasure of this phone call from an insurance adjuster that seeks a recorded statement? C’mon, you know that! The adjuster is surfing for information to minimize the claim. There is absolutely no fairness to the proposition that an insurance company seeks to record a statement the day or two of the wreck. I’ve later read these transcribed statement so many times that I could spit -- the injured person obviously trying to be helpful with the information as the insurance adjuster asks slanted and one-sided questions in his insurance company's favor.
It’s a simple rule: Unless you don’t plan to bring an insurance claim for your serious injuries at all, or unless you don’t care if any insurance claim you plan to bring for your serious injuries will end with a reasonable result, don’t give a recorded statement to the at-fault insurance adjuster.
One more thing: what if the insurance adjuster says that he can’t offer to settle the claim without taking a recorded statement? Why not tell him you’ll make sure you’ll inform the insurance commissioner of this policy? I have settled hundreds of auto insurance claims over the years. I can count on one hand how many times a recorded statement was taken prior to those settlements -- and those involved cases where the client gave the recorded statement before hiring me. When I prepare a settlement brochure for an insurance adjuster, I will give the adjuster everything he needs to make an informed decision as to how much he will offer to settle. I have never sent a settlement brochure to an adjuster, who then calls back and says, “Thanks for all of this information you put in the notebook. All I need now is to take your client’s recorded statement.”
Doesn't happen. Don't fall for it.
Friday, January 15, 2010 – Tolling of statute of limitations for torts arising from crime
A "tort" is a wrong, like a person who negligently causes a car crash, or the bully who successfully targets his victim. When people think of “torts,”they think of the legal area of personal injury. A completed tort gives rise to a civil claim, where we ask jurors to hold the wrongdoer accountable and responsible for his actions, and then award damages to compensate for the damages that the wrongdoer has caused.
Generally speaking, in Georgia the statute of limitations for a tort is two years. That is, generally speaking in Georgia a person must either settle her claim or file a lawsuit (and have it properly served) within two years, or her claim is forever barred.
But Georgia's General Assembly, as part of addressing rights for victims of crime, enacted O.C.G.A. Section 9-3-99, which tolls (or suspends) for a period of time the statute of limitations period for torts that arise out of a crime. The statute reads:
"The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years."
This is a little known but extremely important and beneficial law in Georgia. For many crime survivors, the criminal process moves very slowly due to many reasons, and it is very common that the conclusion of the criminal case occurs more than two years after the crime. Remember, a crime such as rape, molestation, battery, and other crimes are deemed "torts" in the civil side of the law. But under O.C.G.A. Section 9-3-99, those torts can be pursued as civil claims more than two years after their occurrence, so long as the underlying crime is still being prosecuted and has not become final. However, as the "proviso" states, the claim can be brought "provided that such time does not exceed six years" so there is an ultimate time element that survivors must understand.
As I've written before, the pursuit of civil claims for survivors of crime can be procedurally difficult, and land mines lurk for the uninitiated, whether the uninitiated are lay people or lawyers who do not routinely represent survivors of crime in civil claims or civil lawsuits. Any questions should be addressed to a lawyer competent in this important area.
Tuesday, January 11, 2010 – Driven to Distraction – Now Auto Companies Add “Infotainment Systems”
Buckle your seatbelts – it’s going to get more dangerous out there. Fresh on the heals of studies showing that texting while driving is far more dangerous than drinking and driving – which is a huge danger that kills -- the car makers are adding more toys of distraction for the driving public’s convenience.
They call them “infotainment systems,” and they allow drivers to access content such as movie and restaurant reviews, or use and update maps with an SD card. They come with USB ports. They play high-definition videos and 3-D maps and web pages.
I’ve been watching the distracted driving phenomena very closely lately, as study after study warns us about the dangers caused by driving while distracted. Several years ago, the distracted driving danger highlighted in the press was talking on a cell phone while driving. I’ve seen reports that this can be six times more dangerous than driving while not on the phone. A 2003 Harvard study reported that motorists using cell phones caused 2,600 fatal accidents, and caused 570,000 automobile accidents involving personal injuries each year.
Now the reports and studies are on a full-court press to warn against driving while using the technologies that have made our lives very efficient – texting; using GPS devices; and now using very equipped smart phones and computers with wireless capabilities.
A recent Car and Driver magazine article highlighted the danger. An editor drove a car at 70 miles per hour in a deserted testing area. It took him .54 seconds to brake while unimpaired; an additional four feet while legally drunk; an additional 36 feet while reading an e-mail; and an additional 54 feet while texting. It is widely reported that the longer a driver looks away from the road, the risk of an automobile collision goes up exponentially – huge leaps upward, not just gentle angles.
It’s a serious concern, yet the car makers are literally racing each other to provide the driving public with these “conveniences.” Car makers are not blind to the dangers – the reports are literally screaming in their ears. The U.S. Transportation Secretary Ray LaHood has launched a website, www.distraction.gov, that is as eye-opening as it is important. In the bad old days, some car makers would turn a blind eye regarding their products, knowing that some of their cars were dangerous but ignoring the serious implications (see the Chevy Corvair, the car Ralph Nader said was “unsafe at any speed.” I wonder what their view is now, regarding these “infotainment systems.”
But ready or not, here come those infotainment systems, because the driving public thinks they are too cool not to have. A new generation of cars, with many generations of drivers who will be distracted. Until we get a handle on this, it is for drivers to use common sense and reasonable behavior. Drivers need to make sure they plan their car trips in advance. If they get sidetracked, before using these devices, pull off the road before looking at that screen. Drivers need to understand that they will be held responsibility for understanding the dangers of driving while distracted by these smart phones, these GPS devices, and now these “infotainment systems.”
Friday, January 8, 2010 — Providing signed medical authorizations to an Insurance Company: good idea, or horrendous?
I’m going to come down on the side of horrendous. This go–to strategy of the insurance claims industry occurs when people who are injured in car collisions trust the insurance company to fairly resolve the claim. The at–fault driver’s insurance representative makes quick contact with the injured person, tells them how sorry they are that the wreck happened, and tells them that their job is to make sure they pay for all reasonable medical bills. The insurance adjuster then says that in order to do all this, he’ll need a signed medical authorization that will be used to obtain all of the medical records and bills from the injured person’s doctors.
Please stop right there. First off, the auto accident just happened. There’s no reason to discuss your physical condition with any adverse insurance carrier — and that’s what it is — adverse. If the auto collision just happened, you don’t even know the extent of your injuries, and your doctor doesn’t either.
I’ve written this before, and I’ll write it again. When I work for an injured client, I never request medical records from her doctor’s office until the doctor has released her from care (so long as there is not a statute of limitations looming). I want the medical treatment to occur unhindered by outside concerns, like lawyers and insurance claims. I want the doctor to treat the patient only like a patient, so all decisions are medical decisions, the way it should be.
So what does an insurance company do with its signed medical authorization. It shoots the authorization over to the doctor at the beginning of the medical treatment, as if to say, wink, wink, "Hey, doc — this is one of those auto wreck patients. Here’s my contact information, I want you to keep me posted if you don’t mind, just so we can keep this under control." If you don’t think that an insurance company’s correspondence with a doctor has any bearing on how you’re treated as a patient, then I’d like to ask you to think again.
In the end, think long and hard about giving an insurance adjuster for an at–fault carrier your signed medical authorization that allows them to get any and all treatment, of whatever type and for whatever reason. Your physical health is the most important consideration, by far. I would consider telling the insurance adjuster, either politely or assertively, to stay out of your medical treatment.
Better yet, when the at–fault insurance adjuster calls, many times within 24 to 48 hours of the incident, consider contacting a qualified attorney who knows the auto claims process and will work for you, and be able to navigate the traps set by the insurance industry.
Friday, January 1, 2010 -- New Year, New Hope, New Beginnings
Happy New Year! I sit here thinking about so many people who had a difficult year in 2009, due to a harsh combination of local, state, national and international problems and concerns. Sometimes it's difficult to comprehend how so many good people had difficult and trying years, but as the new year dawns, like all new years, I hold out hope for a good and positive year for everyone.
I was sitting around with my two sons the other day. We were not only talking about the new year, but the new decade. We talked about how many interesting, exciting and life-changing things that will happen to them in their lives over the next decade. Think about the last decade, and all that has passed. For many of us, we will be welcoming our children this decade into the community of adults who make decisions and choices that can impact others.
For many, the next decade seems so unsettled, and if there anticipation, it is nervous anticipation. In some ways, I share that nervous anticipation based upon the difficulties that have faced our great country during the past decade. But I also begin each year with a feeling of hope. I am always hopeful that all of my clients (and all who have been injured through no fault of their own) heal wonderfully and get back to the quality of life that they once enjoyed. I'm hopeful that our public servant legislators put the good of their states and their nation ahead of their political ambitions and pass legislation that is individual and family friendly. I am hopeful that our heroic military men and women will return safely.
I am hopeful that we can create an atmosphere in our communities of responsibility - responsibility for the choices we make, and a shared responsibility to make our communities better by serving those who have the least and who need the most support.
I am excited about the new year, and the new decade. And I wish everyone the best, and the happiest, and the safest of New Years.
Monday, December 28, 2009: Georgia’s Statute of Limitation for Child Sexual Abuse
Some of the most gut-wrenching cases I've worked on have involved survivors of childhood sexual abuse. I've represented survivors of child sexual abuse who were still children, and survivors of childhood sexual abuse who are now adults. A given is that the abuse as a child will last a lifetime. How these amazingly strong people respond depends on too many factors to name, although a strong, consistent, dependable support structure is huge.
As with many survivors of all types of crimes, childhood sexual abuse survivors are unaware of their civil litigation options. (See my "Crime Victims" page.) Particularly, most people are unaware that in Georgia there is a state statute that extends the time period within which a civil claim can be timely brought.
O.C.G.A. Section 9-3-33.1 provides that "any civil action for recovery of damages suffered as a result of childhood sexual abuse shall be commenced within five years of the date the plaintiff attains the age of majority."
The statute also defines "childhood sexual abuse" as any act committed by the defendant against a person under the age of 18, and which is classified under Georgia law as rape, sodomy and aggravated sodomy, statutory rape, child molestation and aggravated child molestation, enticing a child for indecent purposes, pandering, pandering by compulsion, solicitation of sodomy, incest, sexual battery and aggravated sexual battery.
Thus, in such cases, the statute of limitations for these very important claims in Georgia does not run until the survivor reaches the age of 23. For a child in Georgia who is abused at age 13, for example, the statute of limitations does not run for 10 years. For someone in Georgia who is 17 and thinks the statute of limitations is two years, it's not -- it's six more years in that 17-year-old's case.
Friday, December 18, 2009: Cyber Bullying Test
I had a conversation with a lawyer friend of mine about the topic of cyber bullying. My wife has co-authored a book with two Clemson University professors on the topic, and there's been a number of cyber bullying cases chronicled in the national media of late. I could tell that my friend, who has a teenager daughter and an elementary school-aged son, was not up on the topic.
For a detailed understanding of cyber bullying, see my wife's site at cyberbullyhelp.org. Our children are technologically wired, and many are far more savvy than their parents. It's important to teach them appropriate netiquette, and that we parent both in the real world and the virtual world. Signs of cyber bullies can be:
- Signing on with someone else's screen name to gather information
- Impersonating someone online
- Teasing, frightening or threatening someone on line
- Posting pictures or information about another person without the person's consent
- Using an instant message or an e-mail address or a web profile to look like someone else's, or create a fake web profile of another person
- Insulted someone in an interactive game room
This would be a good time for interested adults to become familiar with cyber bullying, and its effects on others
Wednesday, December 16, 2009: Your Legal Rights On-Line
I've had a number of people contact me regarding varieties of internet harassment that they have been subjected to on-line. The ultimate question is: What are my legal rights on-line?
Here, with a fairly broad brush, is what I believe. People on-line have a legal right not to be harassed and invaded by on-line conduct that is criminal, bullying or even boorish.
But where are the laws, you ask? Specific laws are not on the books: the law tends to move slowly even in the best of circumstances. Throw in the massive potential for legal harms in cyber space, and the response of the traditionally slow-moving law is even more exaggerated.
I've followed this same legal conundrum in the area of civil claims for crime victims. Our law traditionally relies on the criminal justice system to address criminal activity, which does almost nothing to care for the victim/survivors who have suffered untold harms and losses. So lawyers who bring civil claims on behalf of crime victims know that we have to be creative to fashion legal solutions that will be effective for the victim/survivors in the civil justice system.
Similarly, those who are victims of cyber crimes, cyber bullying and other cyber foolishness need to know that they often can make the perpetrator face responsibility for the harms and losses in the civil justice system.
For example, what happens if a cyber bully posts someone else's private information on line, which causes that person to be concerned that their identity will be stolen, or worse, their personal safety will be placed at risk? If the victim incurs costs that are directly attributable to this cyber foolishness, then who should absorb the cost -- the victim or the perpetrator? Many times, the cyber perpetrator has left footprints; other times the cyber perpetrator is brazen enough to make his identify readily known. In appropriate cases, this firm will pursue legal activity against the cyber perpetrator, whether it means reporting the cyber bully perp to the ISPs, sending a "cease and desist" letter, or even filing suit in the event of extreme damage. More information is on my "Bullying and Cyber Bullying" page.
FRIDAY, December 11, 2009: Gaps in medical treatment after an automobile accident
I often tell clients that some insurance adjusters who place values on personal injury cases, such as automobile collision cases, don't necessarily live in the real world. What I mean by that is they have a rigid appreciation, and even a blind deference, to their company's system -- computerized or otherwise -- of placing dollar values on the harms and losses of an injured person.
So if a person doesn't want to travel to the hospital emergency room by ambulance from an auto wreck scene, the injury must not have been too severe to these adjusters. Or if the person doesn't go to the emergency room at all, and instead follows up with her family doctor a few days after the incident, the claim gets put in a lower claim category altogether. (By the way, if the person decides to go to a chiropractor, then some insurance adjusters will go positively apoplectic.) In the real world where the rest of us live, there are a number of reasons why the active, formal medical treatment will start days after an incident. This is such a truism that no further explanation, at least in the real world, is needed.
Gaps in medical treatment are a key case in point. Suppose a single working mother is injured in an auto wreck. She goes to the ER, then follows up with her primary doctor. Her two children attend public school, and leave on the bus at 6:55 a.m. and 7:25 a.m. respectively. In return for her employer allowing her to leave work at her new job at 3:30 in order to pick up her younger child at the afterschool program at 4 p.m., she takes a 20 minute lunch and arrives for work at 8 a.m.
She's injured, in her neck and back regions. She's been prescribed physical therapy, but her work and family responsibilities limit her to evenings and weekends, and it's difficult to schedule a therapist during those hours. She's managed to go to a few sessions. She also has radiating pain into her legs, and she'll likely need to work in an MRI or other diagnostic test at some point. Get the picture?
Many, many adjusters don't, because they don't consider real world concerns. "If she's injured, she'll find a way to get to a doctor, or a therapist, or to an imaging center for an MRI." Oh, really? Call it crazy, but for many adults who are physically hurt at the same time their children were counting on them, they put their kids first. In any event, gaps in treatment are served up by insurance companies as one reason to minimize claims values.
Next blog entry: How to handle the "gap in treatment" insurance adjuster attack.
MONDAY, December 7, 2009: Why do some physicians reject patients who were involved in motor vehicle wrecks?
More than a few times, I hear from people who tell me that when they called or even went to a doctor's office to get treated for injuries suffered in a motor vehicle collision, the office representatives told them that their office does not treat such patients. Putting aside the medical ethics involved, I have tried to provide an adequate explanation of why I thought a doctor's office would have such a policy.
First, I would suggest that when faced with such a statement, a patient has every right to ask a doctor who is in the profession of healing people why he would have such a policy. If the reasons are really bald excuses to ignore a patient's needs so that the perceived inconveniences of treating auto wreck patients can be avoided, then it's probably best to find a physician who has a better handle on his professional obligations.
Perhaps it has to do with the perceived difficulty of filing the proper insurance for the patient, although this is not difficult at all. Actually, it's pretty simple. File with the patient's auto medpay first, and when auto medpay exhausts, file with the patient's health insurance company. In fact, it is actually better for the doctor's office (at least for billing purposes) to have a patient who has auto medpay, because that coverage will usually pay 100% of a doctor's charges. As all doctors know, the insurance executives who run the HMOs and the other health insurance models make sure that the doctor will be paid only a portion of her total bill.
Perhaps it has to do with the perceived difficulties of dealing with auto insurance claims, and the lawyers who represent the patients. More people are injured in auto wrecks than any other event, often with significant loss, so lawyer representation is inevitable. There no doubt are doctors who would rather avoid lawyers than the plague, and in achieving this goal, they refuse their medical care to those with valid medical needs. Thankfully, there are so many more competent and talented doctors who will treat all patients, so persistence in obtaining quality healthcare can result in the healing that all patients need.
THURSDAY, December 3, 2009: At–fault insurance carriers don’t pay bills as they become due.
I previously blogged about one problem that arises when the emergency room’s billing department does not obtain the proper benefit provider information to pay the emergency bill related to a patient who is injured by the negligence or intentional acts of another.
Today, I want to address a misconception among many people who believe that the at–fault insurance company will automatically pay the medicals bills of the non–negligent injury victim as those bills become due. As an example, assume a non–negligent driver is injured by a negligent driver who is insured by Auto Insurance Company “A.” Non–negligent driver, who is insured by Auto Insurance Company “B,” is also insured by Health Insurance Company “C.”
Non–negligent driver has the reasonable belief that at–fault Insurance Company “A” should take responsibility and pay for his bills. When he’s at the hospital he tells the billing representative that he was in a motor vehicle collision caused by someone else. He tells billing the name of the at–fault insurance company (if he learned the name at the scene), or else tells billing that he will provide the at–fault insurance company’s name when he finds out. The mistake has now been made.
At this point, what will often happen is that the ER bill will arrive in a few weeks marked “insurance pending” or “auto insurance pending.” Perhaps the billing department will call Insurance Company “A” and learn that Insurance Company “A,” while the at–fault carrier, will not pay the bills as they become due, but only as part of a global settlement to resolve all claims. The next bill the injured patient will receive may be one that states that insurance will not pay, and the total amount is the patient’s responsibility. This could occur at a time when it is too late for the injured patient’s health insurance company to process the bill.
As written in the below blog post, always give hospital billing information related to YOUR insurance companies. If you have optional medical payments coverage on your auto policy, give hospital billing the information because it is the primary payor of bills until its limits are exhausted. Additionally, give hospital billing your health insurance information because it is secondary, and will pay portions of the bills once auto medpay is exhausted. Of course, if you don’t have auto medpay, then your health insurance is the primary payor.
Once you have retained a qualified attorney to represent you on your serious injury claim, he or she will explain that the at–fault insurance company will negotiate the case and attempt to resolve all claims at once, not one bill at a time. The proper time to present your claim will also be discussed with your qualified attorney. Because of this, and many other pitfalls, it is critically important that those who have suffered serious injuries due to the negligence or intentional acts of another consult and retain a qualified attorney for the most effective representation.
MONDAY, NOVEMBER 23, 2009: After the auto accident –– who pays the hospital bills?
This scenario is unfortunately too common. A person is injured in an automobile accident, and is treated for injuries at the emergency room. The billing person at the hospital learns that the patient is there due to an automobile collision, and assumes that the patient’s auto insurance medical payments coverage will pay the bill. The billing person marks "auto insurance" on the bill, and fails to bill the patient’s health insurance company.
A few weeks later, the patient receives the ER bill, which states that the total amount is outstanding. The patient may think that the health insurance will eventually pay –– not realizing that it hasn’t been billed –– and so he lets the bill sit for a while. The patient then receives a second bill, then a third, then a nasty collections letter. At that point, the patient might try to straighten it out and have the bill sent to his health insurance company. Some health insurers may take the position, however, that it’s too late to submit the bill and therefore the patient is fully responsible. The patient then calls the emergency room billing department, who blames the patient for not informing them about the patient’s health insurance.
This is totally unnecessary mistake. First, "medpay," or "medical payments coverage," is an optional coverage on auto policies, and many people who have health insurance choose not to pay the extra auto insurance premium for medpay. Hospital billing professionals should know this, and also know that they should obtain all sources of potential insurance payors. I have had clients who have had four or more sources of insurance coverage for automobile wreck–related injuries. If there is auto insurance medpay, it is primary and health insurance is secondary until such time as the medpay funds exhaust. That is, some medpay policies pay $1,000.00 in accident–related injuries; others pay $5,000.00 or $10,000.00 or even $50,000.00. However, once the amount has been paid, the health insurance then becomes the primary payor. And of course if there is no medpay coverage, then health insurance is primary.
Additionally, however, the injured patient or his family members need to be aware of this potential pit. If you have been treated and released from the ER, then the next day you or a family member should call the billing department and make sure that the proper insurer is being billed. If the billing person tells you not to worry, that auto insurance will pay, kindly tell that person that you do not have auto medpay (if you do not) and to bill your health insurer immediately. If the billing person tells you not to worry, that the other driver’s insurance company will pay because the other driver was at fault, kindly tell that person to bill your health insurer immediately . Follow it up with a letter. Call the supervisor. Whatever it takes to get them to submit properly.
THURSDAY, NOVEMBER 5, 2009 -- Texting While Driving (TWD)
I read a recent article that ran in the newspaper about Great Britain's view of distracted driving and distracted drivers, the kind who text while they drive, for example.
In Great Britain, according the the article, the rule is that using a hand-held phone when causing a death will always make the driving offense more serious. Punishment increases, prison time occurs. Texting while driving, particularly, drives up the punishment. It is viewed as seriously as driving while drunk or driving while on drugs, or racing against another driver.
In the article that I read, the 22 year old who was sentenced to 21 months in a high-security prison after her car plowed into another car, killing its 21 year old driver, was not even texting at the time. However, in the one-hour period prior to the crash, she had exchanged more than 20 messages with five people according to the article, and one message was received by her phone just before the crash.
Britain's guidelines are that a person can be sentenced harshly for "reading or composing text messages over a period of time" as a "gross avoidable distraction," the article said.
Texting while driving can be a deadly decision, or a decision that can lead to signficant harm to other unsuspecting drivers on the road. While Georgia's laws are not nearly as severe as Britain's, there is plenty that can be done for a person who has been seriously injured due to a distracted driver, and the avenues to take in civil automobile accident claims are numerous.
TUESDAY, OCTOBER 27, 2009 -- Before Children's Advocacy Centers
Child molestation is an unspeakable crime -- literally. It is said that when it comes to child molestation, there is a conspiracy of silence. The reasons are many and far-ranging; however, for purposes of this post, I want to cover one of the reasons that it was once so difficult for a child to disclose her molestation, prior to the days of Children's Advocacy Centers.
Pre-CAC, it was often the case that a child would disclose abuse, and then be interviewed by a police detective. The interview would occur at the police precinct, in an adult-sized room, with adult-sized tables, and adult-sized chairs. The child would tell the detective about the abuse the second time, the first time being when she disclosed, for example, to a trusted adult.
After the interview, the child might have been taken to the hospital for a medical exam. The third time the child tells her story.
After the medical exam, the child might have been sent to social services. A fourth time the child tells her story.
With each retelling of the molestation, the child is revictimized. So as you can see, many times it was easier for a child simply not to tell.
CACs were established, in part, to coordinate a "team approach" to assisting children who disclosed abuse. Instead of a child being shuttled from place to place to tell her story, the professionals who want to hear her story come to the Advocacy Center. The child is met with a professional trained staff, and during the course of a single interview, the child tells her story once while the other professionals watch the interview in an adjacent room. The child tells her story in a child-friendly room, with tables and chairs her size.
The public needs to know that there are Children's Advocacy Centers in or near their communities who provide state-of-the-art services for victims of child abuse and their non-offending family members.
The public also needs to know that many of these CACs are private, non-profit facilities that need the public's support in the form of generous donations and in-kind contributions, such as coloring books, tissues, cleaning supplies, and other materials that make up a child friendly facility.
In Georgia, as I wrote in the last post, there are 34 established centers and four developing centers. I can say with clarity and certainty having served six years as a board member on the Children's Advocacy Centers of Georgia, and now serving on its advisory board, that Georgia is one of the leading states in the nation when it comes to CACs and the services they provide. Each of us should be proud, and each of us can show our support by supporting CACs.
There is a conspiracy of silence when it comes to child abuse. It is time for each of us to get loud, to get on board, and to do our part to end the abuse.
WEDNESDAY, OCTOBER 14, 2009 -- What are Children's Advocacy Centers?
Earlier this year, I published a book titled "The Legal Eagles of Children's Advocacy Centers: A Lawyer's Guide to Soaring in the Courtroom." On this site, you can find a page related to the book.
The book is certainly a "niche" book, directed toward the women and men who work daily on behalf of children who have alleged sexual or physical abuse. The purpose for writing the book was to provide some guidance to these dedicated professionals as they face the rigors of the courtroom setting.
While it is a "niche" book, it is very important that people in the general public understand that there is likely a Children's Advocacy Center in or near the communities in which they live.
A Children's Advocacy Center provides a child-friendly facility where children who have disclosed sexual and extreme physical abuse can come for investigation and therapy. One goal of a CAC is to reduce the trauma to the child who discloses abuse. At the same time, the process (as will be explained later) helps enchance the investigative process related to the alleged abuse.
In Georgia, the goal of the Children's Advocacy Centers of Georgia, the umbrella state-wide organization that supports the local CACs, is to have a Children's Advocacy Center in each judicial district in Georgia. Currently there are 34 established centers in Georgia, and four developing centers.
Over the next several (Semi) Daily Legal Blog posts, I'm going to introduce you to CACs, what they do, how they developed, why their existence is critical in our society, and why good-minded people like you should actively support them.
MONDAY, OCTOBER 5, 2009 -- Distracted Multi-Tasking Drivers
Last week, the Department of Transportation Secretary called distracted driving a "deadly epidemic."
Distracted driving in 2009 is not like the old days. In the old days, distracted driving could involve reading a map on a trip, for example. Today, it's looking at the iPhone's map app up close to a driver's face. It's texting on a phone. It's e-mailing a business partner on a laptop computer. It's any number of things that drivers do in order to be more "productive."
Unfortunately, what it can and does produce is carnage on the road. I recently wrote about the ills of texting while driving, and that the danger of texting while driving is more dangerous by 10- and even 20-fold to drinking and driving, which as we know is horribly dangerous.
I have spoken to and represented more and more people who have been involved in serious collisions caused by distracted drivers. The negligence is plain, but in my opinion it also reaches the reckless and wanton range that triggers punitive damages. And when a distracted driver causes a collision while on the job, it triggers liability exposure for the company he or she works for, and which condones and even urges these "productivity" moments.
Drivers in society are on notice, me included. Multi-tasking while driving is a risk too severe to take, and the harm that it can cause on people driving lawfully continues to have serious and even deadly consequences.
People injured due to distracted drivers have legal recourse, and then some.
THURSDAY, SEPTEMBER 24, 2009 -- Tough times in Georgia
It's wet. Very wet. Many parts of Georgia received at least 18 inches of rain over a day or two this week, and countless Georgians faced flooding disasters in their homes.
At last report, more than 80 percent of Georgians don't have flood insurance, and therefore face the prospect of trying to pay the entire cost of their damages in uncertain economic times. The State estimates that there is at least $250 million in losses, most of which are not insureable. The State of Georgia itself is broke, and is not in a position to assist financially.
Can we take a moment or two from the constant yelling and sniping we've seen on the national stage of late and help each other? There are a number of charitable organizations that are assisting flooded Georgians in their time of need that can be contacted. I know personally that many, many individuals are coming from out of state to assist, which makes us so grateful. Patience, resilience, compassion.
