Can You Trust Your Pennsylvania Personal Injury Attorney?

Posted on April 8, 2011 by Stuart A. Carpey

I doubt that there's anybody who wakes up in the morning saying, "gee, I'd sure like to learn more about Philadelphia personal injury lawyers today...that would sure be a great way to spend my day."

So, when it comes to marketing a personal injury law practice, one is generally butting up against a group of potential clients that are generally disinterested in everything I talk about in my blogs, websites, books, and newsletters.

But the problem for a legal marketer is much deeper than that. All lawyers see their customers, a/k/a clients, under conditions of duress. This is particularly true when it comes to personal injury lawyers. That is, our first meeting with our clients is after a car wreck, injury from a doctor's negligence, or the like.

The Fifth Circuit Court of appeals has recently ruled that certain limitations on lawyer advertising is unconstitutional, namely on free speech grounds. ( Public Citizen v. Louisiana Attorney Disciplinary Board United States Court of Appeals 5th Cir., 2011 WL 285226 , 1/31/11). The Fifth Circuit struck down most of Louisiana's restrictions on lawyer advertising, handing attorneys in that state a partial victory. The case will potentially be heard by the  U.S. Supreme Court  on the issue of the use of monikers and mottos in advertisements.

In the case, the U.S. Court of Appeals upheld a rule prohibiting speech that promises favorable legal results while striking down restrictions on references to past factual results. But here's the interesting part of the opinion. The Court cited the Louisiana Disciplinary Board's telephone survey of the public, which the Louisiana Disciplinary Board used to rely upon in order to restrict lawyer advertising. Here's some of what the survey's conclusion were.

  •  83% of the public did not agree “client testimonials in lawyer advertisements are completely truthful;
  •  26% agreed that lawyers endorsed by a testimonial have more influence on Louisiana courts;
  • 40% believe that lawyers are "generally dishonest;"
  • 61% believe that Louisiana lawyer advertisements are “less truthful” than advertisements for other items or services;
  • 56% of the public thinks lawyer advertising is generally misleading;
  • 59% of the public said that these advertisements decrease their confidence in the integrity of Louisiana lawyers;

It's clear the public is a tough audience. I have no doubt that the Pennsylvania public would give similar responses to such a survey.

However, that's good news to me. My marketing and advertising is designed to provide good, useful, helpful, fascinating information about the law and about the real problems facing accident victims in the metro Philadelphia area. My marketing stands out from the crowd for a reason. I want my customers who contact me and who come in my door, inherently distrustful of the legal industry and under a life situation where they are under extreme stress and probably in pain, to know me, going in. I want them to be educated about me and about what they are facing in their case, generally, from the free information I provide in my marketing materials. This sets me apart from the crowd of Philadelphia personal injury lawyers who use less open methods of marketing their law practices.

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Double Trouble For The Department Of Public Welfare

Posted on April 3, 2011 by Stuart A. Carpey

Pennsylvania  personal injury lawyers, like me, are required by law to adhere to the Department of Public Welfare's (DPW) demands for repayment of their liens from personal injury verdicts and settlements. There are severe civil and criminal penalties that can be imposed upon lawyers and their clients for failing to pay back DPW liens.This is true whether the case involves a motor vehicle accident, medical malpractice, civil rights or any other claim where someone sustains personal injuries.

Most of my clients who are recipients of cash assistance, food stamps, medical assistance, or who have dependents who receive those types of benefits,  are unaware of DPW liens on their personal injury proceeds. They are rudely awakened to DPW liens on their cases at some point in the life of their case. DPW's lien is driven home at the end of the case when DPW gets its money back.  After the verdict or settlement, the funds are distributed, and DPW is the first to get their money, by law. Clients typically may not realize that what they got from the State was a loan, and in the event of a personal injury settlement, the State wants that loan back.

Needless to say, clients are not always pleased when they come to this realization.

Two relatively recent developments may change the sometimes contentious relationship between DPW and personal injury lawyers in Pennsylvania. How the relationship changes is yet to be determined.

In March 2009, Judge Joy Flowers Conti of the United States District Court for the Western District of Pennsylvania, issued an opinion  in  Tristani v. Richman. That opinion, now on appeal to the Third Circuit, requires DPW to bring their own direct actions against potentially liable third party defendants in order to recoup Medicaid benefits paid to personal injury plaintiffs. Heretofore DPW's Third Party Liability recovery unit (TPL) relied on plaintiff' attorneys to create a pool of funds, by way of their client's personal injury verdict or settlement, and from those funds pay back to DPW the lien for benefits paid to the client, albeit at a statutorily reduced amount. As Michael Cassidy stated in his April 15, 2009 blog post, Judge Conti stated "in no uncertain terms that the Pennsylvania Department of Public Welfare’s “free ride” was over."

It is an expensive proposition for the State to have to hire private counsel to intervene in personal injury cases across the Commonwealth. Why not just rely on plaintiff counsel in each individual case to create the fund from which  TPL can subrogate? After all it's free legal work to DPW!

That's right. For every dollar that I am forced to reimburse to DPW through their TPL program, I am not paid one single dime for my work. So, I agree with Judge Conti's holding. DPW should not get a free ride from the plaintiff's bar in Pennsylvania.

The second development is Governor Corbett's recent budget. In it, the Governor proposes dramatic decreases in Medicaid funding. As described by Don Sapatkin of the Philadelphia Inquirer (3/14/11),

In the short term, Corbett's budget for the fiscal year that will begin July 1 factors in hundreds of millions of dollars in anticipated savings from "cost containment," "promoting competition," and other strategies that are not yet detailed but would come largely from reduced payments to hospitals, nursing homes, and other providers. And several smaller categories of funding that disproportionately benefit struggling major medical centers in the Philadelphia region would be eliminated. What scares advocates more, however, is two or three years down the road, because Corbett administration officials have described the budget as only the first step in a multiyear process of sweeping changes in not just spending but also their entire approach to human services. Corbett has promised to close a $4 billion shortfall without raising taxes in a difficult budget year. States all around the country are grappling with dramatic increases in Medicaid costs as one-time federal stimulus money disappears even as the effects of the recession linger. "We can turn this fiscal challenge into an opportunity," Gary Alexander, acting state secretary of public welfare, said last week in a briefing on the budget, "but we will need to change our mind-set on Medicaid, in part by allowing Medicaid recipients to have a greater role in deciding how they receive treatment and giving them an incentive to make the cost of care a factor in that decision-making."

Alexander was also quoted as saying that the safety net of Medicaid has become a restraint for some Pennsylvanians, "holding them back from achieving a life of independence and self sufficiency"

These are noble words. But the reality is that if Judge Conti's opinion holds up on appeal, DPW's TPL unit will become a potted plant. Their efforts to assert their subrogation liens on personal injury settlements for all but cash assistance will be gutted. But here's the double whammy. If Medicaid benefits to Pennsylvania's poor and disabled are drastically cut over the next few years, as the Governor proposes, DPW will be unable to fund its statutorily mandated obligation to assist the needy in Pennsylvania. The TPL unit brings in very large amounts to DPW's coffers.

If the Tristani ruling remains the law of the land,  DPW may find it necessary to intervene in thousands of pending personal injury cases in litigation to try to recoup tens of millions of dollars. TPL's  case load exceeds 10,000 cases.

DPW gets money in from the back end, that is, outside of any money budgeted to them by the State. If the "free ride" of not having to hire private counsel to collect on their liens is over, thus making it impossible for DPW to recoup funds on the back end, DPW will have no way to pay those in need because they will be getting reduced funds on the front end directly from the Commonwealth's budget.

I believe that all people should lead lives of independence and self sufficiency. But in the short term,  say over the next five years or so, Pennsylvania's poor and needy could be finding out that Pennsylvania is not a very forgiving place to live. Medicaid could be bankrupt in Pennsylvania.

 

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