April 2009

For years folks who represent individuals vis-a-vis corporations have bewailed the evils of mandatory binding arbitration procedures being required by consumer and employment contracts.

Buried in the fine print of an employee handbook, health insurance plan, credit card billing insert, or franchise agreement, binding mandatory arbitration clauses eliminate a consumer’s access to the courts, and force them into a costly arbitration, a private legal system that favors corporations.

Now the corporations may begin to see the light, at least if they listen to former Georgian Newt Gingrich. According to the former Speaker of the U. S. House of Representatives, the proposed Employee Free Choice Act would subject employers to mandatory binding arbitration before government bureaucrats.

Not surprisingly, Newt finds a problem with the idea that once a worksite is unionized through the elimination of the secret ballot, if the employer and union don’t agree to terms in just over three months, a federally appointed arbitrator would impose wages, benefits, hours of work, and other terms and conditions of employment on both the employees and employer.

I’m all for mediation and arbitration to resolve conflicts out of court, so long as participation is voluntary.  But to arbitrarily deprive folks of the right to vindicate rights in court, if necessary, is a practice subject to extreme abuse.

By the way, for all the folks eagerly awaiting the time to buy a car, when I traded cars recently the guy at the dealership stuck an arbitration agreement in front of me along with all the other array of papers to sign. I just politely told him no on that one, and handed it back. Refusal to sign the arbitration agreement did not make one bit of difference in concluding the transaction on the agreed terms.

There is widespread sentiment that the ratings game — whether it’s college rankings in US News or our "Super Lawyer" rankings — is a lot of hocum.  However, folks look at that stuff, so the game goes on.

I just got word that my law school alma mater, Emory, has moved up in the U.S. News rankings of law schools from number 22 in 2008 to a tie for number 20 in 2009.

At alumni breakfasts at bar conventions, I’ve heard for years (since the rank was in the high twenties) that Emory wanted to break into the top 20 because that would help with recruiting, fundraising, etc. Now they’ve done it.

Not that it will enhance the value of my diploma, but it’s nice to know.

For whatever it’s worth, the University of Georgia Law School  tied for number 32 in 2008 and tied for number 35 in 2009.  However, when you compare the current tuition cost, UGA or Georgia State is a much better deal for most anyone who intends to practice in Georgia. When I see new grads from Emory entering today’s daunting job market with tuition debt that looks like a home mortgage, I honestly don’t know how they are going to manage it.

Today’s issue of LawyersUSA includes an article by Corey Stephenson quotes me on defense medical exams (which are otherwise jokingly referred to as "independent" medical exams).  Here are a few excepts from the longer article.

  • One major issue is that "there are only so many doctors [who do IMEs] out there and we tend to see the same folks over and over again," said Ronald V. Miller, a partner at the Law Offices of Miller & Zois in Baltimore, Md. who focuses his plaintiffs’ work on serious motor vehicle accidents, products liability and medical malpractice cases.

    Kenneth L. Shigley,

…

Contingent fees, in which the attorney earns a fee based on a percentage of whatever is recovered for the client, are typical in personal injury cases both in Georgia and throughout the United States.

We often explain the advantages in terms of making representation attainable for average people and giving the lawyer an incentive to get the most favorable outcome for the client.

Now a study by professors at the University of Jerusalem, "Neither Saints Nor Devils:  A Behavioral Analysis of Attorneys’ Contingent Fees," reaches a conclusion that is contrary to common economic wisdom. They conclude:

  • Loss aversion (rather than risk aversion or incentivizing the lawyer to win the case) plays a major role in clients’ preferences for contingent fees. 
  • Facing a choice between a mixed gamble and a pure positive one, plaintiffs prefer contingent fees even if it yields an expected fee that is several times higher than a non-contingent one.
  • Defendants, who face a choice between two pure negative gambles, are typically risk seeking and prefer fixed fees.
  • Information problems and lack of alternatives are not big factors in clients’ choice of fee arrangement.
  • Counter-intuitively, people often judge contingent fee arrangements that yield a low effective hourly rate for the lawyer as more unfair than contingent fee arrangements that yield a high effective hourly rate.

After practicing law for 32 years, including a general practice representing individuals and small businesses, an insurance defense practice where nearly all our work was on hourly fee billings, and a plaintiffs’ practice that is nearly all contingent fee based, I think this study makes sense in business and commercial cases as well as personal injury cases.

My learned colleague and fellow Atlantan, Jonathan Wilson, writing on the Manhattan Institute’s PointofLaw.com blog, has responded to my earlier comment about the "stay of discovery" provision of the legislation recently passed as HB 29.

I had commented earlier, in part, that the legislation as passed would prompt a "rash of frivolous motions to dismiss as a stalling tactic" but will eventually become "much ado about nothing." He responded that this was "an outcome that’s hard to dispute, although I seem to have missed the plaintiff’s bar using that argument in favor of H.B. 29 before it was passed."

In the…

As an attorney representing people with serious injury cases in Georgia, I have to keep an eye on the solvency of the insurance companies that are contractually obligated to pay legitimate liability claims against their policyholders.  For most of my career, the solvency of insurers was seldom if ever a big concern.

In today’s economy, however, we can’t take anything for granted.  With the giants of industry and finance in deep trouble, insurance companies are not immune.  Heavily invested in stocks and commercial real estate, insurers are vulnerable to the downdraft in those sectors.

Reinsurers face similar problems. Reinsurance is a means by which an insurance company can protect itself with other insurance companies against the risk of losses. Insurance companies offset some of their risk exposure by selling it to reinsurers.

Due to the recession, the bear market and the credit crisis, more insurance companies are looking to reinsure more of their books of business in order to free up capital. But the reinsurance companies are facing all of the same problems, plus in some cases poor international currency exchange rates.

Reuters reported on April 1 that reinsurance rates for property catastrophe insurance rose by an average 8% worldwide based on January renewal rates. Reuters also reported in the same news release that reinsurance costs for US catastrophe risks rose by as much as 40% in 2008. So, it is clear that insurers around the world, and especially in the US, are struggling to find ways to reduce their risks in this very bad economic and financial time.

In this highly integrated world economy, everything is intricately interrelated. Problems in financial markets and real estate hurt insurance companies, which in turn hurts anyone who relies upon payments by insurance companies.

And when insurance companies experience financial problems, even in relatively ordinary times, they typically blame people who have been catastrophically injured for running up "frivolous" lawsuits, and push for new rounds of "tort reform."  In other words, bad things roll downhill.

So what are mere mortals to do about this?  I have my own ideas, but don’t choose to publish them and give the other side of my cases a window into my mind.

On March 30th, President Obama signed legislation that includes the Christopher and Dava Reeve Paralysis Act (CDRPA).  Though it had been blocked by a single Senator last year, it ultimately passed both houses of Congress with broad bipartisan support.

The legislation was named in honor of "Superman" actor Christopher Reeve who became a quadriplegic in a horseback riding accident, and his wife who cared for him until his death before succumbing to cancer herself.

The intent of the CDRPA is to encourage coordination of research to prevent redundancies and hasten discovery of better treatments and cures, as well as to improve the daily lives for those living with paralysis. The CDRPA has three components that support and enhance paralysis research, rehabilitation, and quality of life programs:

• Expands research on paralysis at the National Institutes of Health (NIH)

• Builds on research to enhance daily function for people with paralysis, including a Clinical Trials Network to measure effectiveness of certain rehabilitation tactics

• Works with the Centers for Disease Control and Prevention (CDC) to improve the quality of life and long-term health status of persons with paralysis and other physical disabilities

The New York Times is running a feature on “Voices of Spinal Cord Injury,” with feedback from lots of folks who are SCI survivors.  Here are a few excerpts from the feedback:

•    “Once a person goes through a spinal cord injury one’s life changes in the most drastic way imaginable…slowly, painfully, and frustratingly we find a way to adapt.”

•     “Even thought the health-related issues of my disability are stressful, the major battle for me is the struggle for accessibility, social acceptance, employment opportunities and insurance coverage…. not to mention the ever shrinking pool of doctors who will accept me as a patient and who have the expertise/experience that I need. Actually, it would be much easier for me to cope with the health aspect of my spinal-cord injury if I didn’t have to battle the great bear called “bigotry.” I can’t speak for others, but for me the lack of social acceptance and understanding is main struggle in my life, not the wheelchair itself.”

•    “Life is absolutely horrible for people with spinal cord injury who have to live on Social Security Disability or welfare alone. I am lucky because I had the smarts to know how to tread water economically, until the insurance company (AIG) for trucker who injured me paid off, 3 1/2 years after my injury. During that time, it was a hand to mouth existence for my family, who are still suffering the emotional effects of those dire circumstances.”

•    “Most people with spinal cord injuries just barely live month to month, and many cannot find wheelchair accessible housing. . . . The feds stopped building elderly high rises 30 years ago that had ten percent of units for the disabled. Those that remain have long waiting lists for adapted units. The private sector is NOT required by the ADA to build accessible apts. I wish the Times would do an article about the crisis in housing for the majority of the disabled who are not wealthy.”

•    “It’s astounding that we’re willing to spend trillions to fight wars and kill each other and more trillions to bail out corrupted corporate entities while a fraction of that amount would likely result in all manner of advances in regenerative medicine that could improve both the quality and the quantity of life for all of us!”

•    “Now when I see AB’s (able-bodied persons) take handicapped parking spaces it makes me want to get a crowbar and bash in their windshields. . . . There is no way that an AB can fully understand what it’s like to have an SCI.”

•    “The unemployment rate among those who live with a spinal cord injury is 70%.”

•    “In a rich nation such as ours where billions are poured into stupid and unnecessary wars as well as into the undeserving financial industry it’s a disgrace that any spinal cord patient should find their situation so desperate that they would consider suicide.”
 

Representing people with traumatic spinal cord injuries, I have learned to see them not as "cripples stuck in wheelchairs" but as survivors valiantly striving to get on with their lives despite a harsh new reality.  Every one of them has inspired me.

Among the most inspiring is former metro Atlanta resident Alyson Roth, who became a paraplegic in an an automobile crash the summer before she was to have begun her senior year at Samford University in Birmingham, Alabama. She returned the next year to complete her degree, became a teacher, earned her master’s degree, moved to California on her own, and participated in Third World mission trips.

Today Alyson is an inspirational speaker, and participates in a program to provide affordable wheelchairs to the poorest of the poor in less developed countries.  Last week she was crowned "Ms. Wheelchair California."   On April 13th, Alyson will appear on national television as a contestant on "The Price is Right."

I believe that God has great plans for Alyson.  As I see her valiantly moving forward to serve others rather than wallowing in self pity, which would be so easy to do, I am reminded of this poem, attributed to an unknown Confederate soldier:

I asked God for strength
that I might achieve;
I was made weak,
that I might learn to obey;
I asked for health,
that I might do greater things;
I was given infirmity,
that I might do better things;
I asked for riches, that I might be happy;
I was given poverty, that I might be wise.
I asked for power,
that I might have the praise of men;
I was given weakness,
that I might feel the need of God.
I asked for all things, that I might enjoy life;
I was given life, that I might enjoy all things.
I got nothing that I asked for
— but everything I had hoped for.

             

"Independent" medical exams are commonplace in personal litigation, workers compensation, and disability insurance contexts.  Experience has made us cynical so that we now refer to these as "defense medical exams" or "insurance medical exams."

The New York Times on 3/31/09 carried an investigative article, "Exams of Injured Workers Feed Mutual Mistrust," detailing abuses of such exams in the New York workers compensation system.  In fairness, there are also common forms of fraud by claimants, companies and others. But that does not excuse the fraud in "independent" medical exams.

Some highlights of the article:

  • Quote from an IME doctor who was videotaped in an exam making positive finding, directly contradictory to the report he later submitted: "“If you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”
  • “You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did.”
  • “There are some noble things you can do in medicine without treating. This ain’t one of them.”
  • “Physicians regrettably have moved away from being neutral observers. They’ve moved toward one camp or the other.”
  • Often IME doctors are hired  by brokers that then have clerical staffs prepare reports based on dictation or checklists completed by the doctors, who often do not read the reports before signing them.  The article gives examples of doctors signing reports on exams they never performed.
  • The best protection against this sort of thing is to record or videotape an IME.

My experience in Georgia is almost entirely in civil litigation rather than workers comp, which is a different animal.  In personal injury litigation, a small number of "reliable" doctors perform most of the IMEs. They stiffly resist any attempt to record or videotape exams.

 OCGA 9-11-35 provides for a medical examination in the discretion of the court for good cause shown. 

The choice of examiners  is ultimately within the discretion of the court, which need not approve an exam by a doctor who is a hand-picked defense advocate.  Though some judges seem not to understand this point, the law does not provide for an adversarial medical examination by a hand-picked defense advocate.  There is nothing in the Code to authorize the defendant to require the court to select, or the plaintiff to submit to examination by, a physician who is a handpicked and reliable advocate for the defense.

The burden is on the party seeking the exam to show "good cause."  A critical factor in determining whether to grant a motion for examination are the ability of the movant to obtain the desired information by other means and the timeliness of the motion and the events leading up to it.

We have had some success in blocking or neutralizing defense medical exams.  When we have blocked use of notoriously biased defense medical examiners, or successfully insisted on videotaping the exams, we have found that the insurance companies do not proceed with exams by neutral doctors or with the biased doctors being videotaped.