It is a sad day in Michigan. Civil justice and our constitutional right to a trial by jury are on the brink of being taken away again by insurance companies and their lobbyists.

The batch of medical malpractice tort “reform” bills currently pending in committee of the Michigan state senate will be devastating if enacted. Taken together, basically these bills end the ability of people negligently injured by a medical mistake to bring a claim for compensation.

The bills create such a huge burden to prove liability that it will almost be impossible to bring most claims.

They grant immunity from doctors in the emergency room and most mistakes that come out of the emergency room. It allows a judge to simply take a case away from a jury and throw it out if he or she believes the physician acted with “reasonable and good faith belief” the physician’s conduct “well founded in medicine” and “in the best interest of the patient”. So much for a person’s right to a trial by jury I guess.

These bills also change the way compensation is granted to victims of medical malpractice. Victims who are actually successful in obtaining compensation will get less money.

But what’s so ridiculous is how unnecessary these bills are. There is no crisis. In fact, due to no less than three rounds of medical malpractice tort reform over the years, according to the State of Michigan Office of Insurance Regulation, the number of medical malpractice lawsuits decreased by 77% decrease between 2000 to 2007. This has only resulted in a modest drop in insurance premiums for doctors. Instead, insurance companies have made out like bandits while everyday people and their families struggle to pay the staggering medical bills and treatment costs for malpractice victims.

 
The Lobbyists:
The insurance companies and their lobbyists are coming out with the usual lines regarding the need for still more medical malpractice “reform.” The most popular line is we are losing much needed doctors due to expensive medical malpractice premiums and defensive medicine. This is just a bald face lie.

A lobbyist for the malpractice bills stated these new laws are needed because there’s a shortage of primary care doctors in Michigan, presumably because of medical malpractice. However, this shortage has nothing to do with medical malpractice premiums and the fear of getting sued. Instead it has everything to do with low reimbursement rates from insurers, Medicare and Medicaid, as well as low pay for family medicine doctors.

If you are a newly minted doctor coming out of medical school with a $100,000 or more in debt, are you going to choose to specialize in family medicine which is one of the lowest paying specialties in the entire field, or would you choose some other specialty with higher pay and a better work-life balance.

The decision is easy.

Take Action:

The fact of the matter is the latest medical malpractice onslaught is an insurance company led push to take advantage of the current political winds. Their CEOs, shareholders and lobbyists understand now is the time to effectively end medical malpractice in the state of Michigan.

But pushing the costs of care due to medical mistake from insurance companies to taxpayers should not be the end game. Insurance companies are there for a reason – to cover losses. It shouldn’t fall on our state’s Medicaid system and taxpayers to foot the bill for medical mistakes.

It’s these basic common sense reasons I ask everyone to contact the State Senator from their district and demand they vote down these unfair and un-American bills. They only benefit insurance companies, their shareholders and lobbyists while screwing victims and Michigan taxpayers.

A major issue I’ve noticed over the past few years in accepting and litigating Michigan dog bite claims and Michigan dog bite attacks is the lack of homeowner’s insurance by many dog owners.

Under Michigan law, a dog owner is statutory liable for a dog bite attack done by their dog. Unless the dog was provoked by the dog bite accident victim, which is rare, the dog owner is liable. These claims are almost always covered under a homeowner’s policy.

However, a funny thing happened during the financial crisis Michigan experienced over the past 10 years. Homeowners stopped paying for homeowner’s insurance. Some stopped because they were already underwater on their home or about to get foreclosed upon.

Others stopped paying because the mortgage servicer only required dwelling insurance or fire loss insurance on the home, not personal liability insurance. Why pay insurance if you don’t have to, right?

However, this financial reality has led to a host of problems in litigating dog bite accidents. Without homeowner’s insurance, the dog owner is left unprotected. There is no insurance company to defend and indemnify (or pay) the claim on the dog owner’s behalf. As a result, the dog own can be sued personally with the results becoming quite unsettling – personal judgments filed in court that attach to the dog owner’s permanent record.

Our firm’s team of Michigan dog bite lawyers has experienced in increase in unprotected dog owners and homeowners at fault for causing personal injury. Although the economy has improved slowly over the past few years, the problem has only gotten worse. I personally wonder if this problem will abate any time soon. In my opinion, probably not. I believe this will be an ongoing issue for years to come.

Well, the ER immunity bill has finally arrived within the smoke filled chambers of the Michigan State Senate. Many attorneys thought this bill would arrive last fall, but it has come none the less.

The bill, as expected, is a catastrophe. Basically it says that no doctor or “licensed health professional” can be sued for malpractice for treatment derived from an emergency room located in a hospital, an obstretical unit, radiology department or cardiac catheterization lab unless the plaintiff can prove by clear and convincing evidence the doctor’s actions were grossly negligent.

Proving gross negligence by clear and convincing evidence based on current Michigan law is next to impossible. The injured person will have to prove the doctor acted with willful and wanton disregard for the patient, and will have to do so with clear and convincing evidence, a much higher standard that the preponderance of the evidence standard used is almost all personal injury cases.

This bill will basically eliminate all Michigan medical malpractice cases that go through the ER. It will eliminate malpractice cases that move from the ER to other clinics within a hospital, such as the radiology department.

And that’s exactly the point. The 4 co-sponsors, all very conservative state senators, want to take away access to justice for injured persons and their families to protect their favorite constituency, insurance companies.

The usual arguments will be made by proponents of the bill. It will prevent the outflow of doctors leaving the state (not true, in fact the number of doctors in Michigan is at an all-time high). It will get rid of defensive medicine (like this is a terrible thing). It will create jobs and make Michigan economically competitive (don’t understand that one).

But this is all junk. I was talking to a nurse this morning. She ran the nursing unit for a major hospital in northern Michigan for many years. Very well respected. She told me many ob/gyns are leaving hospitals in northern Michigan. Why? It isn’t because of tort reform and too many medical malpractice claims. It’s because too many patients are on Medicare and Medicaid and the reimbursement rates are so low the hospitals and doctors can’t make any money for provided treatment. For example, Medicaid will pay an ob/gyn for pre-natal treatment, but reimburse little if anything for actual delivery of a baby.

But you’ll never hear that from the media or proponents of the bill. Instead you’ll hear the usual outcry. This is all very unfortunate and self-serving, especially when you consider this bill would already be third or fourth round of Michigan medical malpractice tort reform.

What’s also astounding is who ends up paying for the bill. I mean it’s not like mistakes and negligence in a hospital setting will cease if this bill ever passes. Injuries will still occur. Instead families will look to the state government or federal government for payment, especially those families with poor private health insurance plans or none at all.

That means you and I, the American taxpayer, gets stuck with the bill, while the insurance companies continue to charge outrageous premiums to doctors and collect record profits.

I’m hoping this bill never sees the light of day. It’s a pure give-away to insurance companies. Doctors won’t get protected and it will only pass the buck on to an already financially stressed government.

The following blog post is another addition to my ongoing Michigan Car Accident Attorneys No-Fault Law Practice Tip section.  This particular post is about Survivor’s Benefits, which is found under MCL 500.3108.

When a person dies in a car accident, the deceased’s dependents are entitled to certain no-fault benefits.  The benefits are actually quite extensive and are called Survivor’s Loss Benefits.  Under the law, survivor’s loss benefits include the payment of medical expenses, replacement services, and the payment for what’s called “contributions of tangible things of economic value.”

Like all Michigan no-fault claims, the decedent’s medical bills and hospital bills are to be paid by the car insurance company responsible for paying Michigan no-fault benefits.  That is a basic benefit under the Michigan no-fault law.

Another basic benefit are wage loss benefits.  However, in a Survivor’s Loss Benefit situation things are a little different.  When a person is injured in a car accident, he or she is entitled to lost wage benefits from the applicable auto insurance carrier responsible for paying no-fault benefits.  Typically, lost wages are 85% of  the gross wages you were earning at your job at the time of the accident.  However, in a survivor’s loss claim, the dependents of the deceased are entitled to more than just 85% of the deceased lost wages.  They are entitled to what’s called “contributions of tangible things of economic value”.  This term, which is found directly in the no-fault law, allows dependent to obtain other earnings the decedent left behind, including insurance benefits, disability coverage, annuity income or lost fringe benefits.

Another benefit is a funeral and burial expense benefit.  This benefit provides for the payment of funeral and burial expenses of not less than $1,750 or more than $5,000, depending on the policyholder’s coverage.

Still another benefit is the payment of replacement services.   Replacement services in a Survivor’s Loss Benefit claim act exactly the same way as in a no-fault claim involving injury rather than death – in this case the dependent who is performing the household chores and other ordinary services is entitled to receive the $20.00 per day maximum for up to three years from the date of the death.

Last, like wage loss and replacement services, survivor’s loss benefits are payable for three years from the date of the accident. In addition, there is a maximum survivor’s loss benefit that a dependent can receive in one month.

I attended a very informative seminar yesterday that was put on by the Michigan Association for Justice, the umbrella organization for the Michigan plaintiff’s bar.

The presenters at the seminar talked about a host of issues Michigan personal injury lawyers face when taking on premises liability claims.

First let me explain what I mean by premises law. Premises law refers to accidents and injuries that take place due to the active negligence of a person or from an unreasonably dangerous condition found on a premises, such as a store or apartment complex.

Michigan is not an easy state to bring a premises law action. The landowner can assert a slew of defenses to escape liability, many of which are not available in other states. One such defense is the open and obvious defense. Under the open and obvious defense, a landowner is not responsible for an incident that took place on his or her premises if the danger was open and obvious to a reasonable person upon casual inspection. At the outset, this seems reasonable. People probably should not be able to file a lawsuit against somebody else if they tripped and fell over something that was right in front of them and there to be seen.

However, the open and obvious defense in Michigan has been twisted and contorted to include situations and circumstances that were never intended to be “open and obvious” in the way the framers of the doctrine meant when they first introduced it in the 1960s.

Instead, in Michigan our state’s conservative appellate courts have asserted that just about anything is open and obvious, and therefore not the responsibility of the landowner – from black ice to water covered holes to seemingly safe porches and balconies.

The premises law seminar provided guidance for Michigan personal injury lawyers to combat this insidious defense. Instruction included making sure witnesses are investigated and deposed, proper experts are retained and correct allegations are alleged when the lawsuit is first filed.

In addition, speakers and attendees discussed new case law that has come down over the last several years that affect premises law, from notice issues to the open and obvious defense.

Another speaker discussed Michigan dog bite attacks and dog negligence. This speaker provided very informative methods for conducting discovery and ensuring your dog bite case is strong both at a pre-lawsuit stage and then again after the lawsuit has been filed.

I am was very fortunate to be a part of the MAJs premises law seminar. I look forward to utilizing and implementing some of the new tidbits I learned into my own practice.

Well, it looks like it may finally happen. The Michigan State Senate passed SB 291 and sent the bill to the Governor’s desk where it is expected he will sign this law which abolishes the motorcycle helmet law.

Currently under Michigan law, persons operating or occupying a motorcycle are required to wear a crash helmet. This is smart public policy. Motorcycle accidents can result in catastrophic injury, including traumatic brain injury, horrible bone fractures and death. Motorcycle accidents routinely cause some of the most horrific injuries found on Michigan roadways.

Crash helmets have been proven time and again to prevent or lessen serious injury from a motorcycle accident. This in turn not only saves accident victims, their family members and friends the pain and agony of going through such an event, but it also lessens the burden on our already cash-strapped health care system by reducing the need for medical treatment and long-term care.

The new bill will eliminate the requirement to wear a crash helmet, so long as you are over 21 years old and have carry a minimum of $20,000 in no-fault PIP coverage. This amount of coverage is wildly insufficient to cover many motorcycle accident injuries, especially now that many drivers will not be using a protective helmet.

I’m afraid that instead the cost will be passed on to the taxpayers, as you and I will be forced to pay for the medical treatment not covered by this small insurance coverage. But that’s the current state of affairs. Freedom is provided on the one hand (no helmet law), while taken away on the other.

As a follow up to my recent post regarding this early spring weather and motorcycling, I wanted to write about Michigan motorcycle accidents and their relationship to Michigan no-fault benefits.

Here is a quick run down. As the Michigan No-Fault Law states, an insurer must pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. However, no-fault benefits are available to motorcycle accident victims too even though motorcycles are not motor vehicles under the law. Basically, so long as the motorcycle is involved in an accident with a motor vehicle, the operator or the passenger of the motorcycle is entitled to no-fault benefits.

The benefits available under the Michigan No-Fault Law are extensive. They include such things as the payment of all medical expenses, loss wages, replacement services and attendant care.

The rule is pretty clear. If a person on a motorcycle is involved in an accident that does not involve a motor vehicle, that person is not entitled to no-fault benefits under the law. The classic example is a motorcyclist swerving to avoid something on the road, losing control, and sustaining an injury. That person is not entitled to no-fault benefits.  However, if a motor vehicle was involved in some way to cause an accident, no-fault benefits are available to the injured persons on the bike.

So what does involved with a motor vehicle mean. Well multiple Michigan cases have held that involved does not mean the motorcycle had to have actual physical contact with a motor vehicle. As long as there was a sufficient connection between the motorcycle and the motor vehicle causing the accident, no-fault benefits can be obtained by the persons hurt on the motorcycle.

Now, like anything in life, there are caveats. First, if the person injured on the bike is the owner or registrant of the bike, that person must have PLPD on the bike in order to receive no-fault benefits. So if the motorcycle is uninsured, and the owner or registrant was on the bike when the accident happened, that person is out of luck.

Second, motorcyclists can purchase an optional form of motorcycle PIP coverage. The amounts are sold in increments of $5,000. So there is still a way to receive no-fault PIP benefits even if you are injured on a motorcycle but no motor vehicle was involved. However, this type of insurance coverage is usually expensive.

I hope this post helps in your understanding of Michigan motorcycle accidents and their relationship to Michigan no-fault benefits. Our Michigan motorcycle accident attorneys have handled hundreds of motorcycle accident cases over the years. Just give us a call at 1-800-LEE-FREE if you have any questions.

A recent case again highlights the difficulty in obtaining compensation in Michigan construction accident cases. In Shawl v. Spence Brothers, the Michigan Court of Appeals upheld the trial judge’s ruling dismissing the plaintiff’s personal injury lawsuit against Spence Brothers, who was the general contractor at the site plaintiff worked.

In this case, James Shawl was a journeyman painter. He was hired as a subcontractor by the defendant, Spence Brothers, to complete a painting renovation at the Saginaw County Event Center. While at the job site, Mr. Shawl was standing next to his ladder reviewing his work when a temporary electrical panel that had been placed by a gang box fell towards him. The three screws protruding from the electrical panel punctured his lower back.

The trial judge dismissed the lawsuit against the general contractor, holding Mr. Shawl failed to present all the elements needed to be successful in a Michigan construction accident claim. Mr. Shawl appealed this ruling but the Court of Appeals affirmed the lower court’s ruling, again stating Mr. Shawl had no case.

In making its decision, the court relied upon something called the “common work area doctrine.” Under Michigan law, general contractors and property owners are liable for the negligence of their employees or independent contractors if (1) the general contractor or property owner failed to take reasonable steps within its supervisor and coordinating authority (2) to guard against readily observable and avoidable dangers (3) that created a high degree of risk to a significant number of workmen (4) in a common work area. All four elements must be met by the plaintiff to be successful. In this case, the Michigan Court of Appeals found the electrical panel did not create a high degree of risk. In addition, it found a significant number of workers were not exposed to the danger. Therefore, because two of four elements were not met, Mr. Shawl had no case.

In making its ruling, the Court made some startling and brash conclusions. First, it stated that because there was no evidence the electrical panel could have electrocuted somebody or some similar type of danger associated with the panel, there was no high degree of risk. This conclusion by the Court ignores what the law says and what happened in this factual scenario. Just because the plaintiff was not electrocuted doesn’t mean there was not a high degree of risk. Electrical panels can injure workers in numerous ways. Just because one is not actually electrocuted by an electrical box does not make it not dangerous. By looking only at the intended function of the electrical panel, the Court ignored all other possible hazards. This is not what the law requires when analyzing if a high degree of risk existed in a Michigan construction accident case.

In addition, it is clear there were dangers associated with the panel because three separate screws were sticking out, thereby causing the injury to the plaintiff in the first place. The makeshift electrical panel, which was attached to a loose 4 x 4 piece of plywood, certainly posed a degree of risk. Whether that degree of risk was a high degree of risk should have been answered by a jury, not the trial judge, which is what the plaintiff in this case was demanding.

As for the number of workmen, in the past the Michigan Court of Appeals has arbitrarily determined that four workers does not constitute a significant number of workmen. I’m not sure why such a bright line number is required. The law only says a “significant number of workmen.” It does not provide a set number that must be met. Further, each situation is different. Some Michigan work sites have dozens of workers while others only demand a few. In my opinion, each individual situation must be considered in light of the underlying job being completed. If a job only requires 10 workers, one could argue three or four workers are significant – after all – that is 30-40% of the workers at a given site. In addition, some independent contractors complete work during a time when other workers are not on duty. Why should they be unable to seek compensation for someone else’s negligence simply because their injury happened to take place during “off peak hours” or when most other contractors or employees were off the clock?

Now, I’m not saying the plaintiff in this case should have been successful. He testified he was unsure exactly how the electrical panel fell and some of his story was speculative. However, the judges in this ruling made blanket conclusions that ignore the realities of a construction site. Instead they relied upon bright line tests not found in the law that make it almost impossible for individual workers, such as Mr. Shawl, to be successful in obtaining compensation for their injuries.

The weather outside is unseasonably warm. In fact, I can’t remember a more mild winter here in Michigan. This warm weather has continued in to March. The high temperature today was over 70 degrees and it looks like the weather this weekend will feel more like mid-May instead of mid-March.

This warm weather means the unofficial start to motorcycle season. Unlike many other locations, Michigan’s cold weather doesn’t allow motorcyclists to enjoy the open roads and clean air all year long. Instead, motorcyclists must wait for the warm sun to melt the snow and allow for a safe and enjoyable riding experience. However, unfortunately with the warm weather comes the possibility for motorcycle accidents on Michigan roadways.

Before hitting the roads, Michigan motorcycle accident attorneys suggest all Michigan motorcyclists think about the following this season to ensure a pleasurable and safe riding experience:

1. Wear A Helmet – As the law still requires, make sure you wear your helmet while riding a bike. Despite the passage of a bill to repeal the motorcycle helmet law last fall in the state legislature, the Michigan helmet law is still on the books. Riding without a helmet is illegal and greatly increases the chance for catastrophic injury if a motorcycle accident were to occur. Numerous studies have demonstrated the use of helmets both decreases the chance of fatalities and serious personal injury in a motorcycle accident.

2. Ride With a Partner – I know many riders enjoy riding the open roads solo, but this can be a recipe for disaster. If a motorcycle accident were to take place, having a trusted fellow rider with you can mean the difference between life and death.

3. Ride during the day or make sure the lights on your bike are fully operational – I cannot stress this enough. I cannot tell you the number of motorcycle accidents our law firm handles each year involving night time accidents. Most of these accidents involve a motor vehicle-motorcycle accident collision where the person operating the car or truck simply did not see the motorcyclist until it was too late. If you choose to ride at night, make sure your bike is illuminated and can be seen in all directions.

4. Don’t Speed – I know there is the “need for speed.” Especially while on the open road. But operating your bike at high speeds is extremely dangerous and another major reason for catastrophic motorcycle accident injuries. In fact, it may be most prevalent cause for motorcycle accidents our firm handles.

These are just suggestions and there are many other precautions one should take before hitting the open road on their motorcycle. Michigan motorcycle accident attorneys wishes all riders a wonderful riding season, but urge everyone to ride safe and to ride smart.

This is the latest section in our Michigan car accident attorneys’ No-Fault Practice Tip series. This particular post deals with replacement services, sometimes known as household replacement services. Replacement services is a no-fault benefit that a person involved in a car accident, truck accident or even a motorcycle accident can receive. The benefit is found in MCL 500.3107(1)(c) of the Michigan No-Fault Law and includes work around the house that must be replaced had the injured person not gotten hurt in the car or truck accident. Replacement services often include basic household chores such as laundry, dishes, changing linens, making beds, cleaning and vacuuming.

The benefit is paid by the auto insurance company responsible for paying applicable no-fault benefits.

The person who completes the replacement services for the injured person is called a chore provider. Anybody can act as a chore provider, including family members or friends. The most a chore provider can earn is $20.00 per day. Unfortunately for chore providers, who can spend hours every day completing basic household chores, this amount has not increased in decades. There is no cost of living adjustment tied to the benefit.

Many Michigan car accident victims or truck accident victims don’t understand this benefit is available to them. Not surprisingly, many auto insurance adjusters don’t explain to their customers that they are entitled to it after getting injured in an accident. Instead, many accident victims are forced to let the household chores go, pay somebody out of their own pocket do to the chores, or worse yet complete the household chores themselves thus risking further injury.

It is important to remember this does not have to happen. The Michigan car insurance company responsible for paying Michigan no-fault benefits must pay for replacement services. They may require some proof of the work being completed, but as long as this proof is presented to the Michigan auto insurance company, under the law the car accident victim must receive payment within 30 days.