HOW MEDICARE MAKES REPRESENTATION OF CLIENTS OVER 65 CHALLENGING.

            Representation of Clients over the age of 65 is challenging because the Attorney has no choice but to address Medicare liens.  If the Attorney fails to do so, the Attorney, personally, is potentially responsible for lien repayment.

            A party with a “lien,’ has a right to settlement proceeds as a matter of law.  Federal law provides Medicare with a lien for all amounts paid for medical treatment for which a third party is responsible.

            Addressing the Medicare lien is a complicated process requiring the Attorney to communicate with the Center for Medicare Services (“CMS”) by submitting a series of forms.  The process begins with the Attorney filing   The Attorney begins by filing a Proof of Representation. 

            CMS responds by submitting a Conditional Payment Letter detailing the medical services and the amounts paid by Medicare.  Often Medicare is able to obtain substantial discounts on the billed costs of services.  The purpose of the Conditional Payment Letter is to allow review so that unrelated services can be excluded.  The Conditional Payment Letter ends with a statement as to the amount of the lien required to be repaid Medicare.

            Because medical treatment can be ongoing, the services and amounts in the Conditional Payment Letter will change over time.  If unrelated services and expenses appear, the Attorney can request review to exclude these expenses from the lien.

            The Attorney reports any settlement in a Final Settlement Detail Report which also references the cost of attorneys’ fees, costs, and subrogation amounts.  Medicare will respond with a Beneficiary Conditional Payment letter reducing the lien by the amount of costs and legal fees and stating the amount to repay Medicare. 

            Sometimes Conditional Payment letter references an amount greater than the Client’s net recovery.  In these situations, the Attorney can submit a Waiver of Demand and Medicare will consider further reducing its repayment.

            This process can be both complicated and time-consuming.  In a recent case, the process took more than a year.  Fortunately, the end result was recovery for the Client. 

The Jury Just Returned a Good Verdict. What Happens Now?

     A jury just returned a verdict in a major case.  After taking a deep breath, the client asked "What happens now?"

    The successful end of a trial in a good verdict does not mean that a check is in the mail or even that the client will be paid.  It is only the next step in the process.  The Defendant only pays if the Defendant is willing to agree to the amount.

    The first step is that the judge has to be asked to enter judgment based on the verdict by the filing of a motion.  With a 1-10 day response time, this takes a minimum of 2 weeks.  If the parties disagree about the meaning of the verdict or the calculation of prejudgment interest, it can take longer.

    Following a verdict, the losing party has the right to file a motions to set aside the verdict or for a new trial.  These motions can be made as late as 10 days after the entry of judgment.  Again, this means more delay.

   Following a verdict, the winning party has the right to file a motion for attorneys' fees and a Bill of Costs.  Again, this can be done as late as 10 days after the entry of judgment.   Until this is done and resolved, the exact amount owed is undetermined.

   Finally, a party has the right to appeal.  This can be done as late as 30 days following entry of judgment or denial of the motions to set aside the verdict or for a new trial, whichever is later.

  Clients also ask when they can start executing on bank accounts or seizing assets for payment.  The earliest this can happen is 10 days after entry of judgment.  As a practical matter, it can take much longer.

     When a client asks "What happens now?,"  my answer is that there is still more work to be done.  A case is not over until its over.



   

   

Why Do Personal Injury Clinics Hurt Clients.

            A client’s case recently went bad because of 10 year old medical records from a prior accident showing the same injury.  The client had been involved in a small motor vehicle accident and the medical records were from “The Personal Injury Clinic”  who had a business relationship with the client's lawyer.   While I could not tell whether the Personal Injury Clinic had referred the client to the lawyer or vice versa, they definitely acted together in presenting accident claims not necessarily to the best interests of the accident victim who was their patient/client.  

In part because the client spoke English as a second language, I was able to confirm to my satisfaction that the client did not know about the medical records or appreciate what his lawyer was saying on his behalf.  In the end, this old case had involved small injuries compared to the client’s case with me.   At least in paper records, the lawyer and the clinic had pretended that the small injuries were more serious.  In the end, this destroyed the client's case in my office.     

            This client’s experience is not unique.  Attorneys, chiropractors, physical therapists and others buy lists from police departments of recent motor vehicle accidents.  Whether hurt or not, persons in these accidents are sent solicitation letters promising “no expense” medical treatment and legal representation.   People, particularly people who are not hurt, report this to me and share how they are offended by the aggressiveness of the solicitations.   These businesses are "claims mills" that make money presenting small claims in large volumes. 

People should be wary of clinics and lawyers that solicit business in this way.  The businesses are “accident mills” and are more concerned about maintaining the volume of their business instead of the individual consequences.  Both medical care and claims are presented in an assembly line manner listing the common injuries resulting from accidents, regardless of whether the injuries, in fact, were incurred.  The result is that, like this client of mine, false representations are made that follow the client the rest of his life.   In the end, as in this case harm results to the client should he be unfortunately hurt in a second accident.

This practice highlights a second concern if the motor vehicle accident results in small injuries.  Just because someone has been injured in an accident does not mean they should pursue a claim.  For example, if the injuries are minor, the medical treatment and recovery is routine, and out of pocket expenses have been paid by health or other personal insurance, the benefit of a small recovery can be outweighed by the accident victim being unfairly labelled in a later, more serious accident as being “sue-happy” and seeking “free money” or more seriously being falsely accused of being dishonest about his injuries.   

You have to play your hand smart.  See www.Junelawyer.com

Why I Appreciate Representing Clients

         One day last month, I was reminded about why I enjoy my practice and my clients.

One client that I had not seen in 25 years out of the blue walked into the office.  He had recovered from knee injuries caused by falling down an elevator shaft on a fish processor.  He was working. He was happy.  We talked for more than an hour about where our life paths had taken us over the decades.  He just wanted to say hello.

That afternoon, another client came to visit me.  He had, for the most part, recovered from injuries in a North Slope accident and wanted to brainstorm about career ideas.  We talked about our kids.  We talked about our wives. We talked about life in general.   Like the other client, he just wanted to say hello.

Both men made not just my day but my month.  See www.Junelawyer.com 

The July 31 Seward Highway Premier Alaska Tours Tragedy: What Can Victims Expect.

   On July 31, a Tour Bus collided with the rear of a stopped vehicle causing multiple collisions and shutting down the Seward Highway for hours.  One person died as the result of the collision and others were seriously injured.

 So what happens next?  Here is what I tell persons who call me immediately after highway tragedies like this.

1.   There Will Be a Homicide Investigation.

   Because the collision resulted in a death, there will be a formal homicide investigation.  This will include a complete accident reconstruction and eventually an Alaska State Trooper Report detailing witness interviews, drug testing of the Tour Bus driver, the electronic data from the Tour Bus and other evidence.  While this will provide the best starting point for a legal investigation, it will not be available for a minimum of several weeks.

2.  The Most Important Priority is Grieving and Obtaining Medical Care.

   The family of the gentleman who died has lost a loved one.  The most important thing at this point in time is to honor the loved one and start the grieving process.  This means providing for funeral services and being alone with family.   I encourage clients to do nothing for 30 days.

   For persons injured in the Tragedy, my recommendation is that they seek medical treatment.  I encourage them to contact my office after their acute injuries have stabilized.    

2.   This Is Not a Shared Tragedy.

   While the Tour Bus company or other victims may express concern and say otherwise, this is not a shared tragedy.  The Tour Bus driver was supposedly trained to recognize the hazards of the Seward Highway and failed to operate the Bus safely.

3.    There is No Reason to Have Contact with Tour Bus Company.

    Corporate spokespersons and insurance adjusters often "reach out" to victim families.  Other than the logistics of transporting the loved one home and returning personal effects, there is no reason to have any contact with these businesses.  (There may be "Medical Payments Coverage" or "Funeral Expense Coverage" which may pay transportation expenses home).  While some of this outreach may, indeed, be well-intentioned, a less attractive motivation is damage control and to assess what can be done immediately during a time of grief to reduce the business cost of the tragedy later.

4.    Other than to Stop Contact with Insurance Companies, there is No Immediate Need to Contact a Lawyer.

   For the same reasons that I have said that the most important priority is grieving and there is no reason to contact the Tour Bus company,  there is also no immediate need to contact a lawyer.    When clients call me, I share my respect for their loss and promise to call them in 30 days.  Victims of the tragedy should wait until they are emotionally strong enough to discuss their loss.

   There are exceptions to this:  Hiring a lawyer is one way to stop or control contacts with the legally responsible corporations.  The other exception is if there is person with first hand knowledge of the circumstances of the pilot's departure decision.

5.    You Will Need a Lawyer.

   In my experience, the legally responsible corporations grossly simplify claims and  attempt to resolve claims so as to discourage lawyer involvement. One way or another, the help of a lawyer will be needed.

     In any death, there are probate issues and the grieving family works through the process of administering the will, distributing personal effects, the financial impact of the sudden tragedy, and other issues.  A big issue is often life insurance or other death benefits to help the family adjust to their new situation.  This all will require legal help.

   Another issue is valuation of the claim.  This will be a function of the victim's financial situation, his family situation, including not just spouses and children but also other potential dependents like parents and friends as well as the ages of these people.  This becomes complicated quickly.  Just as one hires an accountant or realtor for taxes or sale of a house, a lawyer will be needed to address these issues.   Without a proper valuation of a claim, it is impossible to make an informed decision as to what to do.

   Finally, in cases involving cruise passengers, the cruise "ticket" (often found in an online contract) may raise legal issues.  For example, it may require the filing of a lawsuit within 6 months or require suit in a specific state.

     My last piece of advice in times like this is to remind callers that this is a complicated card game.  They need to play the hand smartly.  See www.Junelawyer.com.

Another Alaska Aviation Tragedy: What Happens When the Pilot Dies.

   There has been another Alaska Aviation tragedy.  On Friday, July 17, 2015, a Wings of Alaska flight crashed during an 18 minute flight between Juneau and Hoonah.  The pilot died in the crash with the 4 survivors seriously injured.   http://www.alaskapublic.org/2015/07/17/wings-of-alaska-flight-from-juneau-to-hoonah-goes-down-survivors-confirmed/ Newspaper stories include passenger statements about heroic, last second actions of the pilot. http://www.adn.com/article/20150717/4-survivors-airlifted-southeast-alaska-plane-crash-site-pilot-dead

   When a pilot dies in a crash, clients question the purpose of bringing a claim against the deceased pilot's estate.  Here is how I answer those questions.

   Absent certain exceptions, all claims or lawsuits are filed against the Airline.  This is the entity that sold the ticket.  This is the entity that made the promise of safe flight. This is the entity that purchased insurance to protect both itself and the pilot specifically from accidents like this. 

   Pilots working for airlines do not make flight decisions alone.  Every airline has an Operations Manual that controls how flight decisions are made.  The ground crew was as aware of the flight conditions as the pilot. 

  This crash arose out of a short flight under conditions of poor visibility.  Nothing prevented the airline from delaying the flight until conditions improved.  Nothing prevented the pilot from asking that the flight be delayed.  In the end, the pilot crashed into a "granite cloud,"  failing to see and avoid the mountainside into which the aircraft crashed.

  Under circumstances like this, the law imposes a duty on the airline to compensate their passengers for the resulting harms and losses.  You have to play your hand smartly.  See www.Junelawyer.com.

Another Alaska Aviation Tragedy: What Can Victim Families Expect?

   Eight Alaska visitors have died in the crash of a Pro Mech flight seeing trip to the Misty Fjords National Monument near Ketchikan, Alaska.  The flight was an excursion sold through Holland America cruise lines and operated by Pro Mech Air.  Both Holland America and Pro Mech have expressed the traditional messages of concerns we have become used to hearing in the news.  See http://www.adn.com/article/20150625/8-tourists-pilot-dead-southeast-alaska-plane-crash.

   The accident fits a general pattern of Alaska aviation tragedies.  In winter months, it is the scheduled airlines that experience accidents while facing adverse winter weather.  In the summer months, the risk is higher for flightseeing operations who have a short window of time for their business catering to Alaska visitors.

   So what happens next?  Here is what I tell persons who call me immediately after tragedies like this.

1.  The Most Important Priority is Grieving.

   Whether it is a mother, father, sister, or brother, each of the families has lost a loved one.  The most important thing at this point in time is to honor the loved one and start the grieving process.  This means providing for funeral services and being alone with family.   I encourage clients to do nothing for 30 days.

2.   This Is Not a Shared Tragedy.

   While Pro Mech and Holland America may express concern and say otherwise, this is not a shared tragedy.  On the one hand, each visitor paid for a safe flight/visiting experience, and knew nothing about the dangers of a bad weather day in SouthEast Alaska.  On the other hand, Pro Mech and Holland America were conducting a business and made the conscious decision to dispatch the flight.   With prepaid excursions, there is always pressure not to cancel because of weather.

3.    Other than Logistics, There is No Reason to Have Contact with Pro Mech or Holland America.

    Corporate spokespersons and insurance adjusters often "reach out" to victim families.  Other than the logistics of transporting the loved one home and returning personal effects, there is no reason to have any contact with these businesses.  (There may be "Medical Payments Coverage" or "Funeral Expense Coverage" which may pay transportation expenses home).  While some of this outreach may, indeed, be well-intentioned, a less attractive motivation is damage control and to assess what can be done immediately during a time of grief to reduce the business cost of the tragedy later.

4.    Other than to Stop Contact with Pro Mech/Holland America, there is No Immediate Need to Contact a Lawyer.

   For the same reasons that I have said that the most important priority is grieving and there is no reason to contact Pro Mech/Holland America, there is also no immediate need to contact a lawyer.  The investigation of the crash will be conducted by the NTSB and there is little that a lawyer can do at this stage beyond gathering information.  When clients call me, I share my respect for their loss and promise to call them in 30 days.

   There are exceptions to this:  Hiring a lawyer is one way to stop or control contacts with the legally responsible corporations.  The other exception is if there is person with first hand knowledge of the circumstances of the pilot's departure decision.

5.    You Will Need a Lawyer.

   In my experience, the legally responsible corporations grossly simplify claims and  attempt to resolve claims so as to discourage lawyer involvement. One way or another, the help of a lawyer will be needed.

     In any death, there are probate issues and the grieving family works through the process of administering the will, distributing personal effects, the financial impact of the sudden tragedy, and other issues.  A big issue is often life insurance or other death benefits to help the family adjust to their new situation.  This all will require legal help.

   Another issue is valuation of the claim.  This will be a function of the victim's financial situation, his family situation, including not just spouses and children but also other potential dependents like parents and friends as well as the ages of these people.  This becomes complicated quickly.  Just as one hires an accountant or realtor for taxes or sale of a house, a lawyer will be needed to address these issues.   Without a proper valuation of a claim, it is impossible to make an informed decision as to what to do.

   Finally, in cases involving cruise passengers, the cruise "ticket" (often found in an online contract) may raise legal issues.  For example, it may require the filing of a lawsuit within 6 months or require suit in a specific state.

     My last piece of advice in times like this is to remind callers that this is a complicated card game.  They need to play the hand smartly.  See www.Junelawyer.com.