When I first started practicing law, I primarily practiced consumer law. As things evolved, the practice has shifted, and now, the bulk of my practice is car crashes and professional negligence. And when I say professional negligence, I mean medical malpractice, if your doctor has done something wrong; I also do legal malpractice, because lawyers, too, make mistakes
I want to talk a little bit about the various areas that I focus on, so initially, let’s talk about car crash litigation or what it is a lawyer does for somebody involved in a car crash. Oftentimes I’ll get a phone call from somebody who has been involved in a car wreck recently, in the last week, three weeks, four weeks, and they’ve had very minimal treatment, but they’re still having problems. That’s a situation where I’m happy to talk to the prospective client and give them some free advice. Part of the process is insuring that you, who probably have never been involved in a car wreck before, do a couple of things to protect your rights. If you don’t seek medical attention in the hope that things will take care of themselves, that gives the insurance company an argument later, and that argument is: “If you hurt so bad, why didn’t you go see a doctor?” That’s a tough one, because that resonates with juries.
Same thing if you don’t seek regular and consistent medical attention. So by that, I mean if you go and see your doctor, they set you up with a physical therapist, you do a couple of sessions of that, and then you completely cease interacting with all medical providers for two months, the same argument is given to the insurance carrier, which is: “What’s the deal? You went months without seeing anybody, and then you started to go back. We have a hard time believing that your complaints were caused by this wreck.” So getting the medical attention you need and doing it on a consistent basis and, in my view, through a doctor with whom you’ve already got a relationship, who knows what kind of medical condition you had before the wreck, is the preferable way to go about treating these things. DO YOU NEED TO HIRE A LAWYER In the event you come to me and you’ve already had medical treatment that’s consisted of your doctor or whatever, but you’ve been interacting frequently with medical Providers for a couple months, sometimes less, depending on what you already know about your future, at that point, it becomes a balancing test as to whether it’s appropriate for you to hire a lawyer or not.
So people will ask: If I hire you, how does this process work? Initially, what I’m going to do is send out a letter of representation to your insurance company, your own car insurance company, and the bad driver’s insurance company. Those letters will say pretty much the same thing. I represent you. No more contacts at all to you. So the moment I formally represent you and get those letters out, they can no longer legally contact you. I’m also going to gather your medical records and your medical bills. Depending on the nature of the accident, I may hire a private investigator to go out and lock down who was at fault. It depends. If it’s a situation where it’s a clear rear ender and you’ve got a whole bunch of witnesses, there’s no point in spending money unnecessarily, but if it’s a close call, you want to insure that liability is tended to.Once liability is established, then the lawyer is in the back seat really, and the medical professional(s) and you need to work through to get you as well as you’re ever going to be. So for a time, while you are treating for your injuries, there’s not a lot for the lawyer to do. What the lawyer is waiting for is for the doctor to say you’re medically stationary which simply means you’re as good as you’re ever going to get. And at that point, you’re back to where you were before the wreck or you’re as good as you’re going to get, and I know what future problems you’ll have. Then and only then, can I assess the value of your claim, because that’s when I know the full extent of your injury. So once that happens, more often than not, I’ll send out a demand letter, and we’ll talk before that demand letter goes out, and I’ll tell you how I value the case, what the range of value is on the case. I’ll tell you what I recommend we demand to resolve the case. You have to give me authority to send that out or it won’t go out. It’s a collaborative process. I’ll give you my 30 years of experience in assessing why I think the case is worth what it’s worth, and ultimately, we’ll get a demand letter out.
And more often than not the case will settle at that time. If it doesn’t, then we’ll file a lawsuit. If we end up filing a lawsuit, typically your involvement will be limited to a deposition, which is simply a sworn statement under oath, typically in my conference room.
The defense lawyer hired by the insurance company for the bad driver will simply ask you questions under oath. That’s what a deposition is. The lawyers will also exchange paper, requests for production, medical records, medical bills.
And then most cases settle before a trial. A few go all the way to a trial. One has to prepare for every case as though it’s going to go to trial even though more than 95 percent of them resolve without a trial.
A reasonable question for any prospective client to ask is do I even need a lawyer, and the considerations that go into that are: How seriously were you injured? Are you needing regular medical attention? If you’ve treated a few times but you’re all better inside a few weeks of a car crash, you probably don’t need a lawyer. And you’re welcome to call me, and I’ll give you some free advice, and I’ll tell you what words you should use to maximize the recovery the insurance carrier will give you if they perceive that you know what’s going on. If your case is more involved, more medically involved, then oftentimes you ought to be seeing a lawyer. You should be calling a lawyer as soon as possible after a wreck. The worst thing that will happen is you’ll get some free advice and get an understanding of what it is that you have to do, and who you are responsible to talk to.WHAT HAPPENS IF YOU ARE IN A CAR ACCIDENT. You have absolutely no obligation and I discourage people from talking to the at-fault insurance carrier, because they have nothing to offer you. In fact, all they’re doing is trying to take your statement to undermine your claim and suggest that you’re the one who is at fault in having caused the wreck.
Instead, under Oregon law, your own car insurer is the one who is responsible for your medical bills and wage loss in the first year after a wreck. So under Oregon law, your own car insurer will pay up to $15,000 in medical bills necessarily caused by the wreck.
Also if you miss more than 14 consecutive work days, they’ll pay your wage loss up to 3,000 a month or 70 percent of what you otherwise would have made, whichever is less.
So a lot of folks think well, I got rear ended. I don’t want to talk to my car insurer. It might effect my rates. It won’t, but they have that concern. And then they talk to the carrier who is responsible, who insures the bad driver, and they give them statements, they give them medical releases, without realizing that the insurer for the bad driver isn’t going to do anything for them until it comes time to fully resolve the claim. So all you’re doing is helping the carrier for the bad driver pay as little as possible down the road. That insurance company might seek medical records which have nothing to do with your injuries from this wreck.
So one needs to be careful, and one really ought to seek legal advice. I’ve been doing this every day for 30 years now. A lot of people have never been involved in a car wreck, so if nothing else, you can pick my brain and get a free steer as to where you’re going and what the steps are in the process to insure that you protect yourself.
If it’s appropriate for you to come in and visit, we’ll do that. There’s no cost associated with doing that. If not, I’ll tell you what it is you should do, and I’ll suggest you give me a call back. In certain instances, it’s apparent that the accident is of such severity and the injuries are so bad that you clearly need a lawyer. And in that situation, I’ll tell you that, and we’ll meet. And if we get along and like one another, I’ll sign you up, and I’ll go to work for you.
A lot of people wonder what are the elements of a claim, and in any kind of a car accident, you have to prove three things: Negligence, which means simply that the bad driver did something no reasonable driver would have done or failed to do something any reasonable driver would have done; then you must prove that that negligence, that act of bad driving by the bad driver caused injuries; and then the question becomes what are your damages. So you need three things: negligence, the negligence caused injury, and then what are those injuries and what are the injuries worth, your damages. Damages in Oregon are comprised of two Things: Economic damages means past, present and future medical bills and wage loss; non-economic damages means past, present and future pain and suffering, and what I think is a more important element to the claim and is part of the jury instruction on this issue, which is past, present and future interference with your ability to lead your normal, daily life. So anything you used to be able to do that you cannot do anymore or anything you used to do that you have to do in a different way, that’s compensable.
And to the extent you sustain a left shoulder injury or a left neck injury, which means for the rest of your life every time you’re driving, when you look over your left shoulder to look for traffic, that causes problems, that could be a portion of the non-economic damage of your claim.
Let’s talk a little bit about premises liability cases, which sometimes people call slips and falls. The insurance companies call them slip and falls because that way they get to blame you for having slipped into something and having fallen. I don’t call them that. I call them premises liability cases, because from the perspective of somebody who is trying to help somebody who sustained injury. I say that the premises were unsafe due to somebody’s negligence. You have to prove negligence associated with injuring yourself on somebody’s premises to get compensation. Now, there is a perception that some folks have that if I walk into a grocery store and I fall and hurt myself that their insurance company will take care of you. They won’t. If your fall is not as a consequence of the store’s negligence, they will say we didn’t do anything to cause your event or your injuries, and therefore, we’re not responsible for taking care of this.
These cases can be difficult, too, because you have to prove in a grocery store, for example, that the grocery store knew or should have known of the hazard which gave rise to you injuring yourself. So to make this clear, if you’re in a grocery store and see on Aisle 4 that a bottle of olive oil has fallen and there’s a big puddle of olive oil on the floor and you go to report that to somebody, and then for whatever reason, 45 minutes or an hour later, you’re still in the store shopping and somebody ends up injuring themselves in that puddle of olive oil, which nobody has done anything about since you reported it 45 minutes or an hour ago, that’s a very winnable claim. Here, you can prove that the store was on notice of the condition which caused your injuries.
Most grocery stores have sweep policies, and they have little clipboards and check boards and show that every 30 minutes somebody swept every aisle in the store, and they’ll initial off on that. So the grocery store may make the argument: “We followed our sweeps policy. For all we know, for all you know, that olive oil had been on the ground for a minute or 90 seconds, and it was impossible for us to know about it or do anything about it, because we didn’t know about it.” That’s what makes premises liability cases difficult. Proving notice.
What’s also difficult about a premises liability case is that juries have a tendency in premises liability cases to blame the victim. You fell in it. You should have seen it, and that compounds the difficulty in trying to prove such a case. They are difficult cases since it is rare when you actually have a witness who saw it, knew about it, gave notice of it, and the grocery or premises had a long enough time to do something about it.
I want to talk a little bit about medical malpractice cases now. There are so many instances of medical malpractice. A recent Harvard study has shown that of all of the cases of medical malpractice maybe one or two percent of them are ever litigated. They’re very difficult cases. Of those one or two percent that are brought, the doctors still win something like 80 percent of the time. They’re very difficult cases to bring, and they’re very expensive cases to bring. So let’s talk briefly about what the standards are associated with a medical malpractice case. It’s different than a car crash. To prove a medical malpractice case, you have to hire similarly-situated professionals to come in and testify about the conduct of the first doctor. So we’ll use orthopedists as an example. You say that your doctor said he could perform a knee surgery, and it was going to be a piece of cake, and instead he did something, and you’re now crippled. That’s a serious injury, obviously.
The first question is: Is it repairable? Can a subsequent surgery fix what the first doctor did? If the answer to that is no and you’re left with a life-altering, permanent injury, you may have a cost-effective claim that should be brought. With medical malpractice cases, you actually have to try and think about okay, yes, you have a claim, but is it a cost-effective claim to bring?
The reason for that is, since you have to hire other doctors to testify about your doctor’s conduct, it’s unbelievably expensive; typically, between $50,000 and $100,000 in costs — and that’s got nothing to do with attorney fees — it is just to hire the doctors to come to court and testify on your behalf. Lawyers only get paid if you win and then the lawyer typically takes a percentage of the recovery.
And the doctors you hire as your experts to talk about the doctor who treated you and malpracticed on you, have to talk first about the community standard of care. So in Portland, we’re the 26th largest city in America, which means there’s a national standard of care. Therefore, one would expect the highest level of care. You might have a different situation if you were in Baker City or Burns or Klamath Falls, but if you’re in Portland and you feel you have a malpractice claim, the standard of care is: did the doctor who treated you meet the standard of care which doctors follow in Portland’s Metropolitan Area.
If the answer to that is no, then the next question is basically one of medical negligence. Did the doctor do something the doctor should not have done or fail to do something the doctor should have done? If the answer is yes, the doctor was negligent, then we turn, again, to causation. What, if any, injury was caused you as a consequence of the doctor falling below the standard of care and committing malpractice? And once you’ve determined what injury was caused you, then and only then does it finally get to a jury to assess what are the damages that would make for fair compensation for the harm that the doctor who caused these problems for you has created.
You never get to a jury to assess damages unless you have doctors come and say that your doctor fell below the community standard of care, was negligent and caused injury. There are many, many instances where people will call me and tell me something that is really frightening and clearly shouldn’t have happened.
I’m not a doctor. I’m a lawyer who has been doing this kind of work for 30 years. I need to hire doctors to tell me about the standard of care. I need doctors to tell me about medical negligence, but certain times, you know, you get the sense immediately this shouldn’t have happened, but what results is perhaps somebody, in a subsequent procedure, within a month of the bad situation, does something to fix it. So you have a one month injury really.
In such a situation, you don’t want to spend $50,000 or $100,000 litigating a case where a jury might come back and feel like they’ve done well by you and given you $25,000 – which is a whole lot of money – but it’s not enough money. In fact, it’s left you upside down if you spend $50,000 or $100,000 trying to bring that claim. As a consequence, most experienced and competent medical malpractice lawyers first will meet with you and then gather all medical records and hire a medical professional to get an initial opinion to determine the validity of the claim. Once that’s done, a lawyer will make an assessment as to how to proceed. Doctors don’t like to settle cases. Doctors, if they do settle a case, have to report it when they seek hospital privileges every two years that they have paid money in a settlement.
Medical malpractice cases are very serious, given the cost of bringing such a claim – and a cost effective claim requires a very serious injury to bring a lawsuit.