In a typical motor vehicle accident case, your own insurance company pays your medical bills. In a fall down accident, for instance, your health insurance coverage pays your medical bills. Clients frequently assume that the other person’s insurance company is responsible for paying all of their medical bills but that is not correct under the law in Pennsylvania. Rather, the other person’s insurance company is responsible for paying for your pain and suffering. That’s typically the larger portion of the case.
As reported recently in the International Herald Tribune (12/29/11) and in the New York Times (8/22/11) in excess of 5,000 lawsuits have been filed against medical product manufacturers who produced and sold faulty hip replacements, leaving many patients crippled and facing further surgery. In fact, the DePuy Orthopedics division of Johnson & Johnson voluntarily issued a recall of it's artificial hips in August 2010.
The most widespread medical implant failure in the United States in decades, involving thousands of all-metal artificial hips that need to be replaced prematurely, has entered the money phase. Medical and legal experts estimate the hip failures may cost taxpayers, insurers, employers and others billions of dollars in coming years, contributing to the soaring cost of health care. The financial fallout is expected to be unusually large and complex because the episode involves a class of products, not a single device or just one company. The case of Thomas Dougherty represents one particularly costly example. He spent five months this year without a left hip, largely stuck on a recliner watching his medical bills soar. In August, Mr. Dougherty underwent an operation to replace a failed artificial hip, but his pelvis fractured soon afterward. The replacement hip was abandoned and then a serious infection set in. Some of the bills: $400,776 in charges related to hospitalizations, and $28,081 in doctors' bills....The so-called metal-on-metal hips like Mr. Dougherty's, ones in which a device's ball and joint are made of metal, are failing at high rates within a few years instead of lasting 15 years or more, as artificial joints normally do.The wear of metal parts against each other is generating debris that is damaging tissue and, in some cases, crippling patients.
But who is going to be the financial beneficiary of these lawsuits? Medicare and private health insurers who paid for the initial surgeries and who will pay for additional surgeries and other medical care to the victims of the faulty implants.
Insurers are alerting patients that they plan to recover their expenses from any settlement money that patients receive. Medicare, the government health program for the elderly, is also expected to try to recover its costs....To recoup their expenses, insurers typically notify patients through lawyers that they expect to be reimbursed from any settlement money that patients receive, rather than pursue their own lawsuits with the device makers. Also, Medicare is expected to enforce new laws next year that will make it easier for the agency to recover taxpayer dollars spent treating patients injured by problem drugs and medical devices.
How can this be? How is it that public and private health insurers are first in line to be paid from personal injury and product liability suits from these cases? Shouldn't the injured victim, the patient, be the one to recoup his or her financial and physical losses? The patient, who has gone through the agony of hip replacement surgery, now facing more surgery, is the one who has suffered. Why should an insurance company get a free ride on the back of the injured patient's lawsuit?
It's called subrogation. And although none of my clients are ever willing to accept the concept when first explained to them (and with good reason because it is they who paid for the private health insurance coverage!), subrogation is nevertheless a legal and equitable right of an insurer to be compensated (read: paid back!) for any monies paid on behalf of their insured due to the negligence of someone else. The insurer, be it Blue Cross or Medicare or Medicaid (Department of Public Welfare in Pennsylvania), is, in fact, the first to be paid back before anyone, gets a dime for their pain and suffering. This is true for the attorney that handle personal injury claims. We are not permitted to be paid for the work to generate a settlement or verdict for our clients until the subrogation lien is properly dealt with and paid. (Forget the fact that the personal injury attorney handling cases where a subragtion lien is involved is essentially an unpaid collection agent for the insurance carrier, but that is an essay for another day).
I have written about subrogation may times before. I want ( and need!) my clients, prospective clients, and the public generally to be familiar with the concept, because I don't want them to be surprised at the end of their case. In the eyes of the law, the insurance carrier who pays health benefits to an accident victim is a victim as well, and but for the wrongdoing of the tortfeasor would not have had to pay any benefits.
As to subrogation in the hip cases ''all these payers want to be paid back,'' says Matt Garretson, the founding partner of the Garretson Resolution Group, a firm in Cincinnati that manages subrogation issues for attorneys in all sorts of cases, including mass tort cases. And the payors will be paid back, because there are stiff penalties, both civil and criminal, to those who fail to pay attention to a subrogation lien in the personal injury case.
The process of a personal injury case is always the same, no matter what type of case it is (medical malpractice case, civil rights case, car accident case, fall down case).
Once you provide us information about what happened to you, what medical injuries you've sustained, and the sort of treatment you are receiving, we obtain all medical records and do our investigation. In a car accident case, for instance, we go to the scene of the accident, take photographs, speak to witnesses, and so on.
Once the investigation stage is done, we send all the itemization to the opposing insurance company, and the settlement negotiations are started. If the parties cannot reach a settlement, we file suit.
Once the lawsuit is filed, the court sets certain time tables, telling us by what date we must complete our discovery (depositions, interrogatories, and so on). After that, the court will set the trial date.
Before the trial date, the parties usually go through a pre-trial settlement conference. You may or may not be involved in the pre-trial settlement conference, but you will always be informed of what happens at the conference. If the parties cannot reach an agreement there, the trial date will be set and the parties will go to trial, at which point you will be fully engaged in the trial process.
Auricchio is the New York Rangers fan who was sucker-punched and beaten unconscious by three Flyers fans after the Winter Classic hockey game Monday night at Citizens Bank Park. The video of the beating went viral.
Auricchio and a friend were enjoying postgame cheesesteaks at Geno's in South Philadelphia when the unidentified Flyers fans bribed a squeegee guy to squirt the Rangers fans with his spray bottle, said Capt. Laurence Nodiff, commander of South Detectives.The guy goes up and does it, and then runs away," Nodiff said.
That's where the video picks up.
Wearing a No. 24 Ryan Callahan Rangers jersey, Auricchio stands surrounded by Flyers fans. He puts his hands out, as if trying to play peacemaker.A man who looks to have about a one-foot height advantage on Auricchio removes his dark coat with white fur trim, uncovering his No. 28 Claude Giroux Flyers jersey.He shoves Auricchio, who still has his hands out, and then throws a punch.Auricchio throws back, punching up, but is quickly overwhelmed when a man in a No. 68 Jaromir Jagr jersey begins punching him, too. The two hit Auricchio about a dozen times as he lies on the ground.When a Flyers fan tries to pull them off Auricchio, the man with No. 28 and two other men begin to beat another Rangers fan.When Auricchio stumbles to that man's aid, No. 28 blindsides him with a punch, knocking him to the ground unconscious.Some people yell, "Enough! Enough!" and, "Easy!" Someone else yells, "Go to sleep!" No. 68 then kicks Auricchio. No. 28 steps over him and picks up his fur-trimmed coat.
Auricchio was treated at a New Jersey hospital for a concussion, said Woodbridge Mayor John McCormac, a longtime family friend. Auricchio has a stitched-up cut under one eye, and the other eye is still swollen nearly shut.
Auricchio is married and welcomed his first child, Vincenzo, the week before Christmas. He was shot by a sniper in Fallujah during his first tour in Iraq. He went back in 2007, the day after graduating from the Woodbridge Police Academy.
Questions certainly come to mind about what the heck Mr. Auricchio was doing wearing a Rangers jersey in that setting, and his lack of awareness for his personal safety in general in which he ultimately found himself. I found it surprising that Auricchio, a combat veteran and a police officer, was caught, surrounded as he was, by the violent animals that beat him. I by no means am suggesting that Mr. Auricchio's lack of awareness justified what happened to him. Rather I found it surprising that he was so unaware of the potential dangers he was facing, given his background. By the time he ordered his steak sandwich, he was "trapped" and it was already too late.
There's a book I read sometime ago,The Gift Of Fear by Davin De Becker. The premise of the book is that the threat of violence surrounds us every day. But if we trust our instincts, our sixth sense if you will, we can identify the subtle signs of danger—before it's too late. Simply put, most violent acts are predictable.
That aside, is Geno's responsible? They sure are, as a matter of law, and I believe they can be sued for money damages by Mr. Auricchio. A property owner is responsible for the criminal acts of third parties if they should have anticipated a danger to their customers. Owners of commercial property may be held liable under civil negligence claims for harm to persons by criminal acts of third parties so long as the criminal act was forseeable against “reasonably foreseeable” crimes.Section 344 of the Restatement (Second) of Torts reads:
A possessor of land who holds it open to the public for entry for
his business purposes is subject to liability to members of the
public while they are upon the land for such a purpose, for
physical harm caused by the accidental, negligent, or intentionally
harmful acts of third persons or animals, and by the failure of the
possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be
done, or
(b) give a warning adequate to enable the visitors to avoid the
harm, or otherwise to protect them against it.
Comment (f): Duty to police premises. Since the possessor is
not an insurer of the visitor's safety, he is ordinarily under no duty
to exercise any care until he knows or has reason to know that
the acts of the third person are occurring, or are about to occur.
He may, however, know or have reason to know, from past
experience, that there is a likelihood of conduct on the part of
third persons in general which is likely to endanger the safety of
the visitor, even though he has no reason to expect it on the part
of any particular individual. If the place or character of his
business, or his past experience, is such that he should
reasonably anticipate careless or criminal conduct on the part of
third persons, either generally or at some particular time, he may
be under a duty to take precautions against it, and to provide a
reasonably sufficient number of servants to afford a reasonable
protection.
The Pennsylvania courts have held that a property owner should have knowledge of recent criminal activity and incidents at or in the vicinity of the property. This knowledge can create a duty on the part of the owner to ensure adequate security measures are in place.
If the owner of Geno's knew or should have known that a potentially violent individuals had ever frequented his business, he was as a matter of law on notice that violence could occur to his customers by other persons, be they patrons of Geno's or not. Even if no prior violent acts were known to the Geno's Steaks folks, if they saw what was developing to and around Mr. Auricchio, and did nothing, like calling the police rapidly, I believe that can be found negligent for the injuries sustained by Auricchio. Geno's Steaks should have:
anticipated the violence to it's customer, Mr. Auricchio,
acted promptly to protect its customer,
had a mechanism in place to deescalate violent situations occurring on their property, or originating from their property, between customers or others utilizing their property for any purpose.
I find it hard to believe that events similar to this have never before taken place at or near Geno's Steaks; perhaps not to this degree- yet post sporting event/post late night partying tussles between purchasers of cheesesteaks? Absolutely. That puts Geno's Steaks on notice of the violence that befell Mr. Auricchio.
By now, you may have heard about those pay-as-you-drive insurance policies which have been growing in popularity. If you don’t know about pay-as-you-drive, or per-mile programs, they are individualized insurance policies geared toward people who don’t drive as much as the average driver. Simply put: if you drive less, you pay less. Depending on a driver’s habits, and the policy purchased, a driver could stand to save $150 a year. The program seems great for people who believe their insurance costs do not reflect the time and miles they spend driving.
In recent years, more and more insurance companies are implementing their own versions of per-mile insurance programs. If you purchase your insurance from one of the big name providers, you might be eligible for this policy. Progressive, for example, offers a “Snapshot” program which the company says can lower a driver’s rates by up to 30 percent. Allstate and State Farm offer similar programs called, respectively, “Drive Wise” and “drive Safe and Save.”
How it works and why it is worrisome:
Though some policies allow for self-reports, meaning a driver submits his or her own miles, the majority of per-mile policies require use of a telematics device which monitors and catalogues driving information, including miles driven. The device, which is used in Progressive and Allstate programs, will also store information regarding a driver’s behavior, such as braking and accelerating patterns, and speeding. Insurance policies may also require a trial period of telematics use before offering a driver the per-mile policy.
As I have blogged about before, the use of telematics devices carries with it the fact of having Big Brother (your insurance carrier) peering over your shoulder as you drive. In theory, usage-based insurance programs seem great, but the data collected by the telematics device could hurt you more than help you. If you hit your brakes often, drive over the speed limit, or go driving after midnight when there is a greater risk of accidents, you might find that you are paying more than you thought you would. And if your insurer decides your driving habits are problematic they could slap you with a sizable surcharge. With this in mind, to call these programs “individualized” seems appropriate since it rests on individuals to decide if the invasion of privacy is worth the potential savings.
If you are interested in usage-based programs, you should talk to your insurance carrier or agent to see if you qualify. But make sure you read the fine print; be fully aware of what you are getting into.
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Most of us have heard about the beating suffered by Neal Auricchio, Jr. outside of 
