Personal Injury Laws

ERISA Plans and subrogation Great-West Life v. Knudson

Medicare: Is a federal health insurance program, governed by federal statute and run byCMS, a federal agency. Federal statute specifies eligibility:

(1) people aged65 and older;

(2) people under65 with particular disabilities;

(3) people withend-stage renal disease, irrespective of age.

IFCA, or the Insurance Fair Conduct Act, became effective in Washington State December 6, 2007. It is designed to provide legal remedies, including punitive damages, for policyholders whose claims have been unreasonably denied or when insurance has violated particular regulations that cover claims settlement practices. IFCA does not apply to health insurance policies. For more information see RCW48.30, entitled Unfair Practices and Frauds.

Doctor Liens against a personal injury case: RCW 60.44.010 limits the total medical liens to 25% of any award. This does not, however, mean you are not required to pay the full amount of medical bills owing. It simply means, at the time of disbursing settlement or award funds, you are entitled to limit the amount of money paid to doctors who have liens against your file.

SPR Rule 98.16W mandates that court approval of every settlement is required when the settlement involves the interest of a minor or one determined to be disabled or incapacitated per statute. The rule establishes the procedure for petitioning the court for approval and subsequent appointment of a guardian ad litem. It also addresses handling and disbursements of the settlement funds.

Mahler

Sherry

Thiringer

In Hamilton v. Farmers Insurance Co., 107 Wn.2d 721 (1987), Hamilton was injured in a motor vehicle accident. His damages exceeded the tortfeasor’s insurance policy limits. Third party offered limits, which the underinsurer, Farmers, attempted to keep Hamilton from accepting on the basis that accepting the tender of limits and thereby releasing the tortfeasor impaired Farmer’s subrogation rights. The court first analyzed the underlying purpose of underinsurance, which is to permit the injured insured to obtain full recovery to the extent possible (within policy limits, of course). The court stated that “[w]hether the injured insured obtains full recovery of the tortfeasor’s liability insurance limits is irrelevant to the determination of under insurance payments….[however] the underinsurer always is allowed to credit the full amount of the tortfeasor’s liability coverage against the insured’s damages.” The court further determined that the underinsurer did not have a right of subrogation, but rather a right of reimbursement that accrues only when a settlement or judgment is obtained in excess of the injured insured’s damages. The underinsurer accepts a premium and assumes the risk that an insured’s damages may exceed a tortfeasor’s insurance coverage. The court rationalized a method for the underinsurer to protect its right of reimbursement. This situation would normally arise when the injured insured’s damages exceeded the tortfeasor’s policy limits and the tortfeasor had sufficient assets for the underinsurer to then pursue. The underinsurer can “succeed to the rights of the insured against the tortfeasor” by paying to the injured insured an amount equal to that of the tentative settlement with third party, and in addition tendering underinsured benefits. In this way, the injured insured receives the benefit of the settlement with the tortfeasor and his underinsurance, and since the tortfeasor has not been released, the underinsurer can attempt to recover from the assets of the tortfeasor.

IFCA

Mothershead

Collateral Source

SPR 98.16W

Medicare

Statute of Limitations: For car accident personal injury cases in the State of Washington, generally the statute of limitations is three years from the date of injury. This means you must file a lawsuit within the three year period. RCW 4.16.080. If you have an Uninsured/Underinsured Motorist Claim (UIM), then the statute of limitations is six years, see RCW 4.16.040.

Claims involving health care goverened by RCW 7.70

Claims against government entities are governed by RCW 4.92.100 which states you must file a standard tort claim form with the risk management division sixty days prior to filing suit.

Stewart-Graves v. Vaughn, 162 Wn.2d 115 (2007) Health care provider must obtain informed consent from a patient prior to medical treatment. Informed consent claim is alternative and independent means of imposing liability, even when treatment may otherwise satisfy the standard of care.

Requirement of informed consent does not apply in an emergency setting. RCW 7.70.050(4), Stewart-Graves, 162 Wn.2d 115 (2007).

A breach in the standard of care may be determined as a matter of law. Keogan v. Holy Family Hospital, 95 Wn.2d 306 (1980).

Virtually every medical malpractice case will require expert medical testimony. Whether expert testimony is required is a question of law. Bauer v. White, 95 Wn.App 663 (1999).

Sometimes it is the standard of care itself that is unreasonable and negligence has been found despite compliance with that standard (and in fact because of it). Helling v. Carey, 83 Wn2d 514 (1974), Keogan v. Holy Family, 95 Wn2d 115 (2007).

A medical expert must be familiar with the standard of care in Washington State. Winkler v. Giddings, 146 Wn.App. 387 (2008). Expert testimony that there is a national standard may be sufficient. Elber v. Larson, 142 Wn.App. 243 (2007).

Insurer IME is protected by the work-product doctrine and may not be admitted by the opposing party. Harris v. Drake, 152 W.2d 480 (2004).

CR 26 (b)(4) exempts from discovery materials prepared in anticipation of litigation or for trial.

A statement made by an insured to an insurer regarding an accident is protected as work product. Heidebrink v. Moriwaki, 104 Wn2d 392 (1985), Kim v. Allstate, 153 Wn.App. 339 (2009).

Breedlove v. Stout, 104 Wn.App. 67 (2001) After finishing his shift at work, the defendant left work premises. He soon remembered that he forgot a work-related manual, turned around, and was in the process of returning to work when he caused a collision. The injured party sued not only the defendant, but the defendant's employer under the doctrine of respondeat superior. The court held that under the going and coming rule, the defendant was not acting within the scope of employment when he returned to work to retrieve the forgotten manual, as it was undertaken without the knowledge or control of the employer. The employer was therefore not vicariously liable for the accident.

Am. States Ins. v. Bolin, 122 Wn.App. 717 (2004) Plaintiff was a passenger on a snowmobile in an area of Alaska where snowmobiles are the only means of transportation. Plaintiff was injured while riding and the owner of the snowmobile had no liability insurance. Plaintiff made a claim under the UM portion of his auto policy, which Am. States declined on the basis of an exclusion for vehicle operated on rails or crawler treads. The court held that a snowmobile is not a motor vehicle under Washington la, and the contract's exclusion did not conflict with Washington's UM statute requiring liability insurance also provide UM benefits.

Mothershead v. Adams, 32 Wn.App. 325 (1982) Generally, a party may not obtain the opinions, or present the opinions at trial, of an expert retained for consultation by the opposing party when the opposing party has decided not to call the expert at trial. This is the rule even when the expert has conducted an IME and the report was provided to opposing counsel.

A written good faith request for mediation may toll the statute of limitations for one year. RCW 7.70.110, see also, Morris v. Swedish Health Services, 148 Wn.App. 771 (2009), Breuer v. Presta, 148 Wn.App. 470 (2009).

Waples v. Yi, 169 Wn.2d 152 (2010) held unconstitutional statutory requirement to provide defendant with 90 day notice of intent to commence action prior to filing lawsuit.

Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325 (1991) Service of summons and complaint on one defendant, in cases of multiple defendants, within 90 days of filing the complaint tolls the SOL with respect to the remaining unserved defendants.

Putnam v. Wenatchee Valley Medical Center, 166 Wn.2d 974 (2009) Held statute requiring plaintiff to file a certificate of merit unconstitutional as an undue burden on access to the courts and violation of the separation of powers.

The Emergency Medical Treatment and Active Labor Act (EMTALA) 42 USC s1395dd requires hospitals to provide screening and emergency care under defined situations. The goal of the statute is to minimize affects of having no insurance in emergency care.

Ciminski

Hayes

WPI 30.18 Pre-existing injury that is dormant

If before the car accident you had a condition that was not causing pain or disability; and because of the accident the pre-existing condition was lighted up or made active, then you should consider the lighting up and any other injuries that were proximately caused by the car accident, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition.

If the pre-existing condition would have natually progressed into the condition, then there may be no recovery.

If there is no evidence that a pre-existing bodily condition was causing pain or disability before the occurrence, then the defendant is liable for the lighting up of that condition as well as other damages proximately caused to the person in that condition. There is no prior pain or disability to segregate. Bennett v. Messick, 76 Wn.2d 474, 457 P.2d 609 (1969); Greenwood v. Olympic, Inc., 51 Wn.2d 18, 315 P.2d 295 (1957); Reeder v. Sears, Roebuck & Co., 41 Wn.2d 550, 250 P.2d 518(1952).

WPI 30.17 Aggravation of Pre-Existing Condition

If you find that:

(1) before this occurrence the plaintiff had a pre-existing condition that was causing pain or disability, and

(2) because of this occurrence the condition or the pain or the disability was aggravated, then you should consider the degree to which the condition or the pain or disability was aggravated by this occurrence.

However, you should not consider any condition or disability that may have existed prior to this occurrence, or from which the plaintiff may now be suffering, that was not caused or contributed to by this occurrence.

WPI

That cancellation on Chambers seems odd. I pulled thestatute and have Sandra calling to ensure compliance. I couldn’tremember where you told me to email website stuff. Sorry J

Winters - The court held that when a UM carrier claims an offset for personal injury protection (PIP) benefits paid on behalf of an insured bringing an underinsured motorist claim, the insurance company must pay a pro rata share of the insured’s legal expenses.

Hamm - In an uninsured motorist claim, the court reasoned that the settlement money should be treated as coming from the tortfeasor; i.e., settlement should be similar to the net recovery that would be received if the tortfeasor had been insured. When offsetting for PIP benefits paid, the carrier must pay its pro rata share of legal fees.

RCW 48.18.291 Statute establishes mandatory procedures when insurer cancels private automobile insurance: With limited exceptions, 20 days written notice of cancellation.

WAC Chapter 284-30 Trade practices THE UNFAIR CLAIMS SETTLEMENT PRACTICES REGULATION

WAC 284-30-395 Standards for prompt, fair and equitable settlements applicable to automobile personal injury protection insurance.

WAC 284-30-330 Specific Unfair trade practices defined.

(4) Refusing to pay claims without conducting a reasonable investigation.

(6) Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. In particular, this includes an obligation to promptly pay property damage claims to innocent third parties in clear liability situations. If two or more insurers share liability, they should arrange to make appropriate payment, leaving to themselves the burden of apportioning liability.