Results: An Experienced Trial Lawyer’s Understanding of Brain Injuries in Personal Injury and Sports Injury Cases Takes Care of the Client

Aug 20, 2018 | Ben Boscolo

How does a trial lawyer who understands concussions, head injuries and traumatic brain injuries take care of people who are hurt in car wrecks, falls or sports?

If you have hurt your head in a car accident or crash, a trip or slip and fall or a sports injury, you may be having many problems that you do not connect to your head injury. If you are have injured in any of these ways, a concussion or brain injury can cause any of the following symptoms:

  • Headaches or feeling of pressure in the head
  • Confusion or feeling as if in a fog
  • Memory problems or amnesia about your accident
  • Dizziness or if you see stars when you were hurt
  • Ringing in the ears
  • Nausea or vomiting
  • Slurred speech
  • Sensitivity to light or noise
  • Appearing dazed
  • Problems responding to questions
  • Problems with word finding
  • Irritability
  • Fatigue
  • Depression

Questions about how brain injuries cause these kind of symptoms are answered in this blog.

scale

If you remember one thing, choosing to have your case handled from the beginning by an experienced trial lawyer who understands representing injury victims with head injuries increases your chance of getting justice.

Here are two examples of the results we secured for clients who asked for our help after they suffered a concussion:

Concussion or Traumatic Brain Injury While Playing Soccer

A soccer player reached out to CHASENBOSCOLO to help him deal with the complications of a concussion that occurred as a result of playing soccer. As a result of the player’s choice to hire an experienced trial lawyer who understands traumatic brain injuries, he received almost three quarters of a million dollars in benefits. More importantly, the player will receive all of the medical care he needs for his traumatic brain injury for the rest of his life.

Some people think a brain injury to a professional soccer player does not have much to do with the problems they experience from a concussion in a motor vehicle collision or a fall. Hearing the player’s story will help anyone who has a head injury understand: (1) the symptoms they can have; and (2) how the insurance company will behave.

Our client suffered a concussion when he was elbowed in the head. After the hit, our client experienced immediate symptoms included a loss of consciousness, dizziness and confusion. Over the course of the next two days he was dazed, confused and struggling to participate in the daily activities of life. However, like many folks who suffer traumatic brain injuries, he was in denial. Having grown up in a sports culture that encouraged him to “shake off” minor injuries like hitting his head, he did not think these symptoms prevented him from playing. More importantly, as a person who did not let anything stop him from accomplishing his goals, he was committed to not missing any games.

scoccer

The player was cleared by the team’s orthopedic surgeon, not a doctor who generally takes care of head injuries, to return to play. Based on his desire to play soccer and the opinion of the doctor, the player chose to play in another game two days later. He will regret this decision for the rest of his life. He started the game despite having ongoing symptoms of the concussion two days earlier. During the game, he was hit in the head for a second time. This hit caused a dramatic worsening of his post-concussion symptoms.

Since suffering that concussion, our client never regained full brain function. For about a year, his employer gave him a front office job that simply required him to sit at a desk, use the computer and telephone and talk to people. Even these simple job duties proved to be too great for him. This former elite athlete was not able to answer the phone or use a computer due to the symptoms of his brain injury.

Even worse, his life’s plans were derailed. While playing soccer, he had formed a business running soccer camps and coaching youth soccer players as a way to both supplement his income and to begin planning for his post-career life. Before the injury, he was involved in all of the activities that go into running a business. He marketed the business, entered into contracts, coached players, made personal appearances and participated in the day-to-day operation of the business. Before his concussion, he had no problems balancing the e-mails, phone calls and meetings that were required to build and run his business with the demands of his work as a professional athlete. Multitasking was part of his daily life. After the traumatic brain injury, he tried to keep his business running. Although he could no longer participate in camps or coach kids, he tried to help by making personal appearance and performing administrative work for the business. The player did what he could to market, negotiate contracts and respond to daily e-mails. As time passed, he learned that he could not even do these simple activities that required virtually no physical activity. Looking at the computer screen for an extended period of time worsened his symptoms. Attempting to multitask worsened his symptoms. He had no choice but to give the business to his partner

As a result of these back-to-back concussions, the player is now unable to work in any meaningful way. While he can function as a husband and father for a few hours each day, these back-to-back concussions prevent this former professional athlete from engaging in the simple activities of daily living for more than a few hours at a time. He is now forced to spend most of his time in his home without much noise or light in an effort to prevent the worsening of his post-concussive symptoms.

The player’s health was gone and his ability to care for his family was in danger. He asked us to protect his family. We decided that the best way to do this was to file a workers’ compensation claim.

When we did, his former team denied that he had any ongoing symptoms as a result of the concussions he suffered. The claim was contested from beginning to end. The club contended that the player did not have a traumatic brain injury. The club accused him of exaggeration. The club said he was doing this just to get money. Since there is no test that can prove a person has a traumatic brain injury, the club used that fact to support its argument.

We presented his case to an Administrative Law Judge. To overcome the fact that there were no tests prove there is a brain injury, we presented the testimony of two neurologists and a neuropsychologist who had cared for the player.

While the Judge was considering the case, the club agreed to a settlement that will allow the player to protect himself and his family. The player’s medical expenses, which to date exceed $100,000.00, have all be paid by the workers compensation insurance company. The club will continue to pay for the medical care he needs for the rest of his life. Finally, as a result of our efforts, our client received in excess of $600,000 to make up the wages he lost as a result of the end of his career.

If insurance companies doubt that a highly motivated professional athlete actually suffers from traumatic brain injury, you can be sure that they will doubt all hard-working men and women who suffer with post-concussion symptoms. If you have suffered a head injury while working, talk to a trial lawyer who is knowledgeable about traumatic brain injuries. If you do so, he or she will fight for an outcome that protects you and your family

Concussion or Traumatic Brain in a Car Accident or Motor Vehicle Collision

If you suffer a concussion in a motor vehicle collision, you should talk with a trial lawyer who understands traumatic brain injuries. A lawyer with experience in representing people with head injuries will help you get the results that you deserve.

In 2013, a woman who was a community fixture in a Maryland suburb of the District of Columbia suffered a head injury in a wreck. She was a long-time employee of the community’s school system. At the time she was injured, she co-owned a toy store in the center of town. Prior to the motor vehicle collision, she was in perfect health and had an excellent memory. She was responsible for maintaining her toy store’s inventory. Her former business partner told us that she had a computer-like recall of toys the store had in stock and what each toy cost.

On the day of the injury, the woman was leaving the store’s parking lot. A traffic light controls the exit. The woman stopped at the traffic light and waited until it turned green. She looked to her left, her right and back to her left to be sure that traffic was stopped. When she was sure it was safe, she entered the intersection. A driver coming from her left in the left hand lane of traffic ran the red light and crashed into the driver’s side of the woman’s car. The airbags deployed. The woman was tossed from side to side hitting her head during the collision. She immediately developed a lump on her forehead and had cut on her head. She was dazed but did not lose consciousness.

carcrash

In addition to injuring her head, she suffered injuries to her left shoulder, upper and lower back, and the left leg from the knee down.

At the emergency room, she denied she had lost consciousness. But, she could not remember anything between hearing a boom and realizing that someone was at her door asking her if she was all right. She has absolutely no recollection of the period of time right after the crash.

In the days, weeks and months that followed the collision, she had headaches, dizziness, balance issues and memory loss. Simple things like finding her keys or remembering what toys were out of stock escaped her mind.

Our client is a very tough person. She does not like or trust doctors.

Other than some treatment that was designed to try to improve her balance problems, our client chose not to get much medical care and treatment. When she was still experiencing memory loss, headaches, balance problems and dizziness, we sent her to see a top-notch neurologist. That neurologist determined that our client had a brain injury. He recommended neurological care. Our client chose not to get this care because it would only provide temporary relief and she does not like going to doctors. The neurologist concluded that our client lost 15% of the function of her brain.docotrhart

Our client also was afraid to drive because she thought another irresponsible driver would ignore the traffic safety rules and hit her again. Our client was sure that she was going to be in another crash. Her driving anxiety is so bad that she never drives past the intersection where the collision happened. In order to help her overcome her fear we sent her to see a highly regarded psychiatrist. That doctor determined that our client suffered from depression and anxiety as a result the motor vehicle collision. He recommended psychological care. Our client chose not to get medical care because it would only provide temporary relief and she does not like going to doctors.

The insurance company, as they always do, based its evaluation of the case on the medical care and its costs. Since our client did not like doctors and did not get much medical care, her medical expenses were not very high. In the weeks and months leading up to trial, the insurance company offered only $57,000 for the life-changing traumatic brain injuries that our client suffered.

We decided that the case had to be presented to a jury. The case was tried for two days. The neurologist explained how the traumatic brain injury occurred and a friend, family member and former business partner all testified as to their observations of how the motor vehicle collision changed our client’s life.

After learning about traumatic brain injuries in general and how our client’s life was changed, the jury returned a $500,000 verdict.

This is why it is important to have a trial lawyer who is knowledgeable about traumatic brain injuries handle your personal injury or workers’ compensation case

The Most Important Thing to Remember

The simple truth is that concussions and traumatic brain injury are serious, life-changing injuries. Traumatic brain injuries are common in car wrecks, fall or sports injuries. Traumatic brain injuries are hard to understand and treat. It is very hard to prove that a person has a traumatic brain injury. Insurance companies and their lawyers know how to get their clients off the hook if you suffer a traumatic brain injury in a car wreck, fall or sports injury. If you want the results you deserve, you should talk with a trial lawyer who has actually tried cases involving traumatic brain injury.

CHASENBOSCOLO has more than twenty experienced trial lawyers waiting to help you, and we’re ready to help day or night.


Tort Reform Myths

Aug 09, 2018 | Barry Chasen

$11 billion and $700 million. That’s almost $12 billion. These are the 2016 profits of the following publicly traded property and casualty insurance companies: Travelers, Allstate, USAA, Progressive, Liberty Mutual, Hartford, FM Global, Loews and Fidelity National.[1]

This does not include the twenty-four billion dollar profit that Berkshire-Hathaway, the owner of Geico, earned in 2016.

Nor does it include the 2016 profits of the larger mutual property and casualty companies in the United States: Erie, $210 million; Auto-Owners, $386 million; State Farm, $250 million; Nationwide, $910 million; and even the relative newcomer to TV advertising, Farmer’s, earned $148 million (or $37 million every three months).

And don’t get me started on the health insurance companies. Let’s look at their second quarter of 2017: United Health Group, $2.3 billion; Aetna, $1.2 billion; Anthem, $855 million; Cigna, $813 million; and Humana, $650 million. The top 6 health insurers reported $6 billion in adjusted profits in the second quarter of 2017.

What are the myths?

  • My insurance premiums are rising because of all the tort lawsuits.
  • If we restrict victims’ ability to bring medical malpractice suits, healthcare would improve and its costs would be reduced.
  • Because doctors are afraid of getting sued, they practice “defensive medicine.”
  • Frivolous lawsuits clog the courts.
  • Caps on damages would reign in “out of control” juries from awarding lottery-size sums to plaintiffs, cause malpractice premiums to fall and thereby reverse the doctor shortage caused by doctors fleeing the profession.
  • Punitive damages are awarded too often and are too high.
  • Juries are more likely than judges to award punitive damages.
  • Damage awards are escalating out of control. The tort system has been turned into a lottery system favoring plaintiffs.
  • Juries get caught up in the emotion of trial, ignore the law and find for sympathetic plaintiffs.
  • Tort plaintiffs are using the courts to cripple American businesses.

In an article titled “Malpractice Myths” written by Bob Herbert on June 21, 2004, Mr. Herbert says, “It may be hard to understand why ‘tort reform’ is even on the national agenda at a time when insurance company profits are booming [Barry’s note: just like today], tort filings are declining, only 2% of injured people sue for compensation, punitive damages are rarely awarded, liability costs for businesses are miniscule, medical malpractice insurance and claims are less than 1% of all healthcare costs in America and premium-gouging underwriting practices of the insurance industry have been widely exposed.” These observations are no less true in 2018.

To discuss these issues, I’m going to group the myths in three categories:

  1. Insurance rates go up because of frivolous lawsuits and lottery-sized awards.
  2. Without the worry about medical negligence, healthcare would improve, costs would go down and doctors will not leave the profession.
  3. The third myth involves the assertion that the jury system is broken. There are frivolous lawsuits, run-away juries giving lottery-sized awards, juries are stupid and these awards cripple American business.

Let’s talk about three examples: health insurance, medical malpractice and property and casualty insurance.

Health Insurance

The myth is that doctors who are afraid of being sued practice defensive medicine, thereby performing unnecessary tests, and thereby driving up health insurance costs. Let’s examine the facts: Three states, Texas, Georgia and South Carolina, passed tort reform laws that made it almost impossible to sue doctors or hospitals for emergency room treatment. Why emergency room treatment? The rationale was that ER doctors practice in an environment where information is scarce, the risk is high and technology is readily available. This is a confluence of factors that might lead to practicing “defensive medicine.” A major study, published in the New England Journal of Medicine of 3.8 million ER visits at almost 1,200 hospitals between 1996 and 2012 determined that doctors in the tort reform states, who were virtually immune to suit, ordered just as many MRIs and CT scans as doctors in the control states. Removing the risk of suit did not change behavior.

There is a second fallacy to the argument that tort reform reduces defensive medicine and thereby reduces health insurance costs. The Cleveland Clinic conducted a study, by Michael B. Rothberg, to measure how much defensive medicine exists and what it costs. The conclusion was that defensive medicine was 2.9% of the estimated $2.7 trillion US healthcare total (or $78 million). While not insignificant, that is a very small component of overall healthcare spending.

Medical Negligence

The attack here is two-pronged. The old standby, defensive medicine, is one. The second is that doctors are leaving the profession in droves and that smaller communities cannot get doctors to practice there. We have already debunked the “defensive medicine” argument. The argument for doctors leaving the profession is that frivolous suits clog the courts, so there is a need to make it harder for victims to file malpractice cases, and damage caps will reign in out of control juries who were awarding lottery-size sums to victims.

Let’s address doctors leaving the profession. Despite the claims of the AMA and state medical societies, the number of medical professionals in the United States continues to grow. And when it comes to access problems, the U.S. General Accounting Office finds those claims to be false or wildly exaggerated. Some rural and poor urban areas are underserved. Such areas often have trouble attracting other professionals too. In fact, the Counsel of Graduate Medical Education has opined that the relative shortage of health professionals in rural areas of the US is one of the few constants in any description of the US medical care system over the last half-century or more.

Let’s turn to frivolous lawsuits and out of control juries. Frivolous cases are cases that shouldn’t have been brought at all or that are rarer than most tort reform advocates admit. Studies have documented that the majority of such suits do not result in a payment to the plaintiff. And the contingency fee system helps weed them out. If a lawyer believes that he or she won’t get paid, they will not pursue the case. James Gattuso, then of the conservative Heritage Foundation, argued in an article for The Wall Street Journal titled “Don’t Rush to Condemn Contingency Fees,” that the contingency fee system ensures that injured persons who could not afford legal representation otherwise can obtain access to the legal system and also screen “baseless lawsuits” out of the system. The converse is the bigger problem—genuinely injured patients who can’t get redress because the courthouse doors have been shut to them.

Out of control juries are also a myth. A U.S. Department of Justice study found that the median medical malpractice award in a jury-decided case was $400,000. In bench trials where the judge serves as the trier of fact, the median award was $631,000. And judges are more likely to find in favor of the plaintiff. Plaintiffs win in tort trials 48% of the time. They are more likely to win in a court trial where the decision is made by a judge (57%). Here are the results of judge vs jury in selected types of tort trials:

  • Premises liability: judge 52%; jury 38%
  • Automobile cases: judge 63%; jury 57%
  • Medical malpractice: judge 38%; jury 23%
  • Products liability cases: judge 70%; jury 31%

Dr. David Studdert led a team of 8 from the Harvard School of Mental Health, Brigham and Women’s Hospital and the Harvard Risk Management Foundation in a study of 1,452 medical malpractice lawsuits. Ninety percent of the claims showed evidence of medical injury, which means they were not frivolous. Sixty percent of the cases were from physician wrongdoing. In a quarter of the claims, the patient died. When baseless medical malpractice suits were brought, the courts threw them out. In six cases where no injury could be detected, only token compensation was received. Where an injury resulted in treatment, but evidence of error was not clear, 145 of 515 (or 28%) received compensation. A bigger problem was that 236 cases, where there was evidence of error to patients by doctors, were thrown out of court. In the other 1,050 cases, the researchers found that the cases were decided correctly, with damage awards going to the injured and frivolous cases being dismissed.

Here’s what our nation’s trial judges think about the jury system. A 2000 survey sent to 1,000 trial judges, including every federal trial judge, revealed that:

  1. Judges have a high level of day-to-day confidence in the jury system;
  2. Only 1% of the judges who responded gave the jury system low marks;
  3. Nine out of ten trial judges, who work closely with the jury system, think the system needs only minor tinkering, at best;
  4. Overwhelmingly, state and federal judges have great faith in juries to solve complicated issues and
  5. 90% of the judges responding said jurors show considerable understanding of legal issues involved.

And finally, statistics show that juries are generally conservative and reasonable and their decisions rarely differ from what a judge would decide.

A word about punitive damages. This argument is a non-starter. Punitive damages are very rare. They are only awarded in 3.3% of all tort trials won by plaintiffs. And in 1996, the average punitive damage award was $38,000, not the millions of dollars alleged. Judges were more likely than juries to award punitive damages. Judges in 1996 awarded punitive damages in 8% of all tort trials decided by judges in 1996. As stated earlier, juries awarded punitive damages in only 3% of all tort jury trials decided.

What is really expensive in medical malpractice? It is shoddy medical care. The obsession with tort reform has slowed down patient safety initiatives. Let’s start with anesthesiology. In the 1980s, following many large awards against the specialty, anesthesiologists revamped their procedures, created compulsory monitoring, increased and improved training, limited the hours their specialists could work without rest, redesigned machines and added safety features. Within 10 years, the mortality rate went from 1 in 6,000 to 1 in 200,000. Malpractice insurance rates fell to the lowest of any medical specialty.

But the tort reformer’s success has diminished the need by other specialties to take other self-policing reforms. Continuing along this vein, hospitals are dangerous. In 1999, the Institute of Medicine at the US Academy of Science published a study entitled “To Err is Human.” This study concluded that between 44,000 and 98,000 patients were killed (and many more injured) in hospitals each year because of medical errors. That is more than in car crashes and workplace accidents combined, and does not include deaths in doctors’ offices or clinics. By 2011, a study in HealthAffairs estimated the number of avoidable deaths was probably closer to one million. Then there was the study done by Harvard Medical Practice of 31,000 medical records. The records were reviewed by practicing physicians and nurses, people who would, by and large, be sympathetic to the demands of medical practice. The records went through rounds of review and negligence was only found if two doctors working independently came to the same conclusion. Even with this conservative approach, the study found that doctors were injuring one out of 25 patients. Only 4% of those patients sued.

What is needed is a crackdown on malpractice. When the American Medical Association speaks of a malpractice “crisis”, they are referring not to the people injured or killed by medical errors or the widespread failure to discipline negligent doctors (including many repeat offenders), but rather to the doctors’ increasing malpractice insurance premiums. So, not only are they trying to get off the hook for what they’ve done, but they’re targeting the wrong group as the source of their ills. It’s time for the doctors to blow the whistle on the insurance industry and their exploitive practices, as well as on the members of their profession who violate the maxim, “First, do no harm.”

Let’s call it what it is. This is all about greed! Tort reform leads to additional profit for the insurance industry, which is precisely the reason that the insurance industry is sinking so much money into its unrelenting campaign for reform.

Property and Casualty Rates

The first paragraph in this article presented the obscene profits being generated by health and liability carriers presently.

How do insurance companies profit? Most of the profit comes from investment income. Insurance companies generate revenue in the form of premiums paid. They hold these premiums until they make a payout to or on behalf of the policyholder. Between those two events, the money being held is called the “float.” (Before people had so many options to carry money electronically, American Express made more money from the “float” on travelers checks, the time between purchase and redemption than they did from money generated from use of their credit cards.) So, the “float” is invested. When the market is strong and/or interest rates are high, the companies make a nice return on their investments. In times like these, the insurance companies may even reduce their rates to attract more premium dollars to invest. This scenario is called a “soft” market.

So, what happens when the market declines? Investment income falls. Then insurance companies raise their rates or reduce coverage. This is a “hard market.” The US economy has experienced several of those in the last 40 years. These hard markets occurred in the mid 70s, mid 80s, 2002-2003 and from 2007-2009. These were the markets where insurance rates for doctors skyrocketed. So while the insurance companies and other tort reform proponents argue that litigation, frivolous lawsuits and run-away juries are to blame for insurance premiums going up, these increases are being driven by the insurance companies’ responses to the broader economic cycle. In fact, claims and payouts stayed flat or declined in each of the “crises.” Since insurers target the civil justice system rather than the economic cycle, tort reform solutions failed to reduce insurance rates. And what was the response of the American Insurance Association when presented with this empirical data? “Insurers never promised that tort reform would achieve specific savings.”

So, what is the solution? The insurance industry needs stronger regulation. Stop the insurance industry from price-gouging their policy holders, especially when industry profits rocket upwards. Doctors should re-direct their anger at the insurance industry (How many times have we heard doctors bristle at what they consider to be “health insurers practicing medicine?” Surely, they know who the real enemy is!) and better police their profession to remove the subset of doctors who repeatedly commit malpractice. Or are the doctors, like their legal counterparts, powerless in the face of the massive donations being given to lawmakers, who are so willing to accept the largess so that they can stay in office?

Tort reform is a myth, perpetuated by greed. How can any intelligent person argue in favor of these sham laws that serve to abridge our constitutional rights? These proposed laws are just another attack on the rights of the average American citizen. Who do we want to speak for us, a jury of our peers or large companies earning obscene profits?

[1] Numbers based off the 2016 Annual Reports for these Insurance companies, which were calculated by Barry Chasen to equal a total combined net profit of $11.795B, which was rounded up to an even $12B.


Authorization Denied: When Health Insurance Becomes a Barrier to Treatment

Jul 23, 2018 | Ashley Strandjord

Nestled between the Bronx and Manhattan, the most serene location I’ve ever found in New York City is the Harlem River at 6:00 a.m. Mondays through Saturdays.

The murky water reflected the impending sunrise off its oily sheen. After attaching the riggings to the shell and climbing in, both the stillness and the serenity of the river rippled away.

I rowed for three years in college. The dreaded two-a-days workouts and indoor erg pulls were the only downside to trolling between Yankee Stadium and the Broadway Bridge. At some point during my third year, I began to notice a dull ache in my hip after practice. Nothing some rest (and ice cream) couldn’t fix. As race season ramped up, the pain intensified and was less willing to subside with my self-prescribed therapy à la mode.

I sought treatment with the athletic department’s trainer. “Just ice it and it will go away,” they said. It didn’t. Back to the trainer’s office. “Have you tried heat? It will help.” The pain persisted. I then went to my family practitioner. “Have you tried a course of anti-inflammatories?” Yes, but just like everything else so far, no relief.

In the meantime, race season had ended, finals were approaching and I found I was having trouble walking back from the subway after work. I was given a referral to see an orthopedic surgeon. After performing a few quick tests, my orthopedic surgeon told me we needed an MRI and it was possible I had torn “something” in my hip.

Jumping Through Hoops for Insurance Authorization

The MRI order was promptly denied by my health insurance company. However, they approved an x-ray of my hip. My doctor and I agreed that although the MRI was what he had ordered, I should go ahead and get the x-ray taken.

Results: “Unremarkable.” Back to the doctor so he could inform my insurance company I needed an MRI. Again, it was denied with a note indicating it was “unlikely a 22-year-old female is having difficulty walking.” However, they approved a CT scan with contrast. Not a procedure I’d ever like to repeat, but I got it done (at, of course, the facility my insurance company identified).

Back to my surgeon who said, “We still really need an MRI to see what is going on.” Turns out, the CT scan had been inconclusive. On the plus side, they had injected some lidocaine and I was feeling great! (For a mere two days.)

The MRI was finally approved and done (again at a facility identified and approved of by my insurance company). The results were in. I had “an acetabular labrum tear and possible degenerative changes.” In English, please? I tore a small piece of cartilage near the femoral head and the pelvis, and there were indications of arthritis.

I was then informed the surgery did not come with a guaranteed success story. In fact, it was unclear whether the effects of the surgery would last a few months or the rest of my life. “What about if I want to have kids?” We don’t have the research. “Will I be able to go back to rowing?” Absolutely not. “What about hiking? Walking a strong dog on a leash?” You should be okay. “Dancing? Running? Bicycling?” All of those are fine—but no yoga or Pilates. After this surgery, you will be forever restricted from those activities and anything that isolates the hip muscles and joint. I was 22 and contemplating what my life would look like with a perpetual cloud of uncertain future surgery and/or restrictions.

I went for a second opinion (as you might imagine, not covered by my insurance company) and a review of all the studies performed on my hip. I went to a prestigious hospital in New York City to consult with a doctor that spends the large majority of his time on torn acetabular labrums. It turned out to be an incredible waste of time. I was seen by the doctor’s physician’s assistant, who listened to my description of the pain and its duration. The doctor himself came in for less than four minutes. During that time, he spoke rapid-fire and there was no time for any of my follow-up questions. He told me my MRI images were “far too fuzzy to even interpret,” and, “I’d have to measure your legs if I’m going to do this surgery—it might have to be a total hip replacement, I’m not sure yet,” and, “You’ll have to get new MRIs done at the place I like down on 58th. Go there and have them sent back over to me and we’ll go from there.” And then he was gone. And so was I.

It was time to schedule surgery with my orthopedic surgeon, which my insurance company again denied. My doctor appealed the denial on my behalf, explaining I was an otherwise perfectly healthy 22-year-old who could not walk without pain.

Denied again. My surgeon called to explain the denial. He indicated that often the denials are decided by employees of the insurance company who have little to no medical training or background, but rather follow a set of parameters provided. He again appealed on my behalf, using the multiple studies as support for the surgery. At this point I was tired of the run-around and constantly having to rely on someone else to advocate on my behalf. A short time later, the surgery was finally approved.

Becoming My Own Advocate

I was elated to find out that not only was the surgery approved, but so were 24 visits to a physical therapist after surgery. The physical therapy was to be performed at a location entirely inconvenient to both my home and office locations. I did some research of physical therapy centers closer to my home and office and sought the advice of friends and officemates. I was fortunate enough to work as an administrative assistant in a law firm specializing in medical malpractice at the time—so the advice was well taken. I took that information and called my insurance company myself.

I explained that the location they had identified to attend physical therapy sessions was inconvenient and was not the location where I wanted to seek treatment. I gave them the name of the facility not two miles down the road from my office, which was accessible during my lunch hour and okay with my employer. I expressed my willingness to attend physical therapy (I really wanted to get better and get back to what I was doing) and that I took my healthcare very seriously. I was told a decision would be made but that there were no guarantees and I shouldn’t get my hopes up.

To their credit, the insurance company approved my physical therapy at the location I designated. I got the approval letter in the mail and it seemed like it was all coming together. The surgery was a few days away, and I had the physical therapy all lined up—now all I needed to do was rest, recover, and get back to my daily life. Until I scrutinized the letter—which indicated they had only approved 18 sessions of therapy at that location. I rooted through all my paperwork (and there was a mountain of it) to find the other approval letter that allocated 24 physical therapy sessions. I looked at them. And read them again. Read each one over—placed them side by side and upside-down. One said 24 sessions. The other 18. Apparently, asking to have the same treatment at a different facility resulted in the loss of 6 sessions.

I gave the papers to family members to read to ensure I wasn’t missing anything. I asked the attorneys in the firm to glance over them. Nobody could explain the loss of 6 sessions of physical therapy on the eve of surgery simply by switching locations, and I still had unanswered questions that no one seemed to be able to answer. But I knew someone who could.

A telephone call to my insurance company confirmed they had unilaterally decreased the number of sessions I needed post-surgery. I placed a call to my doctor’s office to let him know what had happened. He agreed the facility I was now going to attend was superior to the one identified by the insurance company, but there appeared to be no rationale as to why they slashed 6 sessions from my treatment. He told me not to worry—we would start with the 18 treatments, and he would prescribe more if I needed them.

The surgery was a success. I awkwardly clunked around on crutches for two weeks until my post-operative visit with the surgeon. He had the biggest smile and asked (with far too much enthusiasm) if I wanted to see the photos from the surgery. No, I did not. Turns out, it wasn’t a question; we were going to review them together. We looked at the tear—which was much worse than previously seen on the MRI. We looked at the femoral head, which had a lot of arthritic bone that was removed during the surgery. We reviewed every detail of the surgery—and I was finally given clearance to attend physical therapy and take a proper shower.

Hitting the Wall

After 18 sessions of lunch-hour physical therapy, the physical therapist and my doctor agreed I needed at least 18 more sessions to ensure proper healing and that the surgical repair would last. They both prescribed 18 more sessions. However, the insurance company had not made its decision regarding the continued treatment before my next scheduled session.

I asked the physical therapy facility if they would be able to provide treatment in the interim. They were willing to help, provide treatment and lend support wherever they could. A few days later, I received an approval letter for continued physical therapy sessions from the insurance company. Six more sessions. One-third of what had been prescribed by treating professionals.

I grumbled and fought with the insurance company, roping in my doctor and the physical therapist. The insurance company wouldn’t budge and refused additional treatments. 24 sessions in total were the most they would cover, and if I wanted to continue I certainly could—paying out of pocket, of course.

I attended my last 6 sessions, keeping in close communication with my surgeon and the physical therapist. I asked if I could have them draft and approve a home exercise program that I could do at home in lieu of paying out-of-pocket for continued visits. They both agreed this was an excellent idea—but if there was any pain I was to return to their care immediately.

Creating the Spark

While all of this was going on, I had been working in a law firm while trying to figure out whether I really wanted to go to law school. I had been working in the same firm for over seven years at that point, and I wanted to make sure that law school was really and truly my dream. Going through this experience only solidified my desire so that I could advocate for others. Along the way I learned how to effectively advocate for myself both in and out of a legal forum, and I am always enthusiastic about using my skill set to the benefit of others.

It’s been over eight years since the surgery. I can live without yoga and Pilates. My husband and I (attempt to) ride a tandem bicycle on occasion. I’ve hiked a portion of the Appalachian Trail while pregnant. I chase after my son on uneven terrain and skillfully dodge dump-trucks in my living room.

It’s no longer the dark waters of the Harlem, but I’ve found serene places all over the DMV—and I can’t wait to find more.

Useful Tips for Those Dealing With Injuries:

  • Be your own advocate.
  • Talk to your doctor and ask questions.
  • Bring a notepad with questions you have and space to write down what the doctor says.
  • Discuss your symptoms with your doctor and ensure you both have a clear understanding of the course of treatment.
  • Ask why your health insurance, or your employer’s workers’ compensation insurance (if you were hurt on the job), is denying treatment recommended by your doctors.
  • Work with your treating providers to find alternatives while you’re waiting on authorization (or if authorization is denied).
  • Be persistent. Sometimes, it will take several “nos” to finally get a “yes.”
  • If insurance is requiring you to go to a provider that doesn’t work for you, see if there are alternatives available. Do the research to find a better location that accepts your insurance.
  • Don’t be afraid to ask your doctor to advocate on your behalf for necessary treatment.

The Life-Changing Impacts of Injuries

Jul 16, 2018 | Kyle Shoemaker

Many people may know someone injured in a traumatic event, such as a motor vehicle collision or a fall. However, many people don’t, or the people they know who’ve been hurt have kept this information private. As personal injury lawyers, it is our job to help others, particularly juries, to understand the real and meaningful ways that an injury disrupts the lives of our clients, particularly when that injury is caused by another’s actions and decisions.

As anyone who commutes in the Baltimore-Washington metro area knows, rear end collisions occur every day. Sometimes, the drivers and passengers involved walk away with no problems. Other times, they are not so lucky. To illustrate the unseen effects of injury, consider this relatively simple example for a car crash involving Gary. (To be clear, Gary is not a real person, he exists only for this example). Gary is 32 years old and works as a welder for a utility company. He is driving work on an ordinary Monday morning when, while waiting at a red light, his car is rear ended. The police are called, the parties exchange information and both vehicles are able to drive away. Gary goes on to work. After all, he doesn’t feel too badly immediately following the crash, and he has bills to pay and a family to support. Since Gary works for a utility company, his work is physical. He has to move and lift heavy tools, move large metal objects, and engage in other physical activity. As the day wear on, what began as tightness in his neck and back became worse.

To an outside observer, neck and/or back pain may not seem like something that is terribly serious. Someone who doesn’t have first hand experience with this sort of traumatic injury may think that a bit of neck or back pain is no big deal. And Gary himself may not know how serious the injury is. The true severity of an injury like Gary’s may not always be apparent in the immediate aftermath of the collision.

So let’s take a look at some of the ways in which Gary’s injuries will impact his life. To begin with the broadest view: he will experience physical pain. Back and neck pain can cause even the most mundane of movements to be painful. What will that pain actually mean to Gary in concrete, real life terms? What will that mean for his relationships, his work, his hobbies, his goals? Let’s break that down in more detail.

How Physical Injuries Effect Family Relationships

Gary is relatively young at 32 years old. He has two young children: a 3-year-old boy and a 4-month-old girl. As any parent can attest, caring for young children requires a tremendous amount of work, even on the good days. Now imagine that Gary has arrived home after a long day of physical work. Even without his injury, he is tired and probably a bit sore. Layer on top of that the pain and stiffness from Gary’s injuries, and all of a sudden playing with or caring for his children is a much more difficult task. No parent wants this kind of interaction turn into a physically painful and difficult experience. A three year old may not understand why Daddy doesn’t want to pick him up when he gets home from work. Imagine how that makes Gary feel when he sees the hurt on his child’s face when he tells them no, Daddy can’t carry you.

But that’s not the only relationship that suffers when someone is injured. These days, many two-parent households are ones where both parents have to work to make ends meet. This means that both parents need to find time to take care of ordinary household chores (anything from major home repairs, to everyday tasks like carrying in groceries) in between work, sleep, and taking care of the children. When one of those parents is dealing with some kind of physical injury, that division of labor can be upset. So an injured person like Gary, who is already trying to get better, may be dealing with the feelings that come along with feeling like he is not doing his part to keep the family operating day to day. Effects such as those described above can stress on a relationship, which might already be strained thanks to the daily grind of working and taking care of young children. This isn’t to imply that Gary’s wife (or the partner of any injured person) wouldn’t be understanding in a situation like this. But even “minor” neck or back injuries can have effects which can persist. When you add the psychological stress brought on by some of the other factors discussed, even the healthiest relationships suffer.

When Injuries Prevent You from Working

How do Gary’s injuries affect his work? As I mentioned, Gary is a welder for a utility company. This means he may be working outdoors. Or maybe he works in confined locations inside power plants. He may find himself bending, crouching, or climbing. Welding is a skilled trade that is in demand in many areas. Welders have the potential to make a decent wage, but the work is physical. If Gary is temporarily placed on a limited or off work status, his family will likely face financial hardship. Only 39% of Americans have enough savings to cover a $1,000 emergency. In the D.C. Metro area, there’s no way $1,000 covers rent or a mortgage; never mind utilities, gas, food… the list goes on and on. If Gary’s off work (or “disability period”) lasts a long time, or if he loses his job entirely, that financial hardship goes up tenfold – putting even more pressure on him and his family.

But that’s not all. Gary, like many Americans, takes a certain sense of pride and identity from his work, and from his ability to provide for his family. When an injury threatens Gary’s ability to go to work and provide for his family, more than just his job is threatened. Part of Gary’s very identity is threatened, and that is something that is impossible to put a price on.

When You Can’t Do the Things that Keep You Sane

Depending on what Gary likes to do for fun, his hobbies or recreational activities could be impacted by his injuries. If Gary enjoys physical activities like cycling, or playing basketball, or bowling with friends, he may not be able to do these things at all, or might find himself dealing with even more pain if he tries. But sports aren’t the only hobbies hampered by injury. Imagine that Gary enjoys working on cars as a way to enjoy his free time. If he has a neck or back injury that causes him pain, the last thing he will want to do after a long day of work is to get under the hood of a car. Further, if Gary is unable to spend times taking part in activities with his friends, those friendships may suffer, all because Gary was in a car crash. Even relatively stationary activities like reading a book can be affected if Gary’s neck or back pain make it difficult to sit in one position for an extended period of time.

Now, one may say that it is pessimistic to assume that all of these things will happen to Gary because he got hurt. But ALL of these things don’t necessarily have to happen to one person for that person’s life to be impacted in unexpected ways due to an unexpected injury. Even if just SOME of these things occur, that is enough to change a person’s routine, or make the challenges of daily life more difficult than they were before the injury.

What About Driving Anxiety?

All of these factors can combine with each other to create a profound psychological impact on an injured person, particularly through feelings of anxiety, fear, isolation, anger, or helplessness. Gary, or any other victim of a motor vehicle collision, may experience fear or anxiety related to driving. This can be crippling to a person who has to drive to meet their daily needs, such as going to work, shuttling children around, or running other routine errands. Additionally, a person who curtails their own driving due to fear or anxiety loses the freedom of mobility that comes with driving. This can cause a person to limit their engagement with other people in their lives and potentially grow isolated. Let us assume that Gary had a rich social life before being involved in his collision. If he doesn’t like to drive to different places and if it hurts to take part in physical hobbies, that social life is going to suffer. Through his diminished ability to perform his job, his inability to participate in the lives of his children, and his loss of ability to travel or do the things that he used to do for fun, Gary is left with a much different daily life than the one he enjoyed before. For a relatively young adult in the prime of his life, the feelings of isolation, the lack of control over one’s situation, and the uncertainty about one’s recovery can be overwhelming and debilitating.

Getting Medical Help

It may go without saying, but injuries like Gary’s will probably require some kind of medical treatment in order to resolve. As alluded to above, neck or back injuries from a car crash can be relatively minor, in the case of “soft tissue” whiplash injuries such as sprains. Or the same kind of crash may result in more serious injuries such as a disc herniation or even a fractured vertebrae. More serious injuries like this could even require surgical treatment if more conservative treatment measures turn out not to be successful. Surgery of any kind is risky even under the best of circumstances. Neuro surgery or orthopedic surgery carries with it risk of side effects, potential for failure, or other complications. Some injured people have good health insurance that can help ease the burden of the cost of surgery and follow up care, but other injured people may face the uncertainty of not knowing how such a bill will be paid. Still others may undergo surgery in an emergency setting and then get stuck with a huge medical bill with no way to pay it. Even assuming that a is successful, a person with a serious injury may never fully recover and may be left dealing with the effects of that injury for a life time.

But Why Do Injured People Need Attorneys?

So why do injured people need attorneys? Well, let’s look back at Gary’s case: The insurance company for the vehicle that ran into him wants to close his claim as quickly and as cheaply as possible. Gary is not in a position to truly understand the real value of his claim and the insurance company knows this. That’s why Gary needs an experienced attorney that’s looking out for him. Obtaining representation when you find yourself in Gary’s position is not about taking advantage of anyone or anything. It is about making sure that the insurance company (which makes a profit by finding a way to not pay a fair claim value) does not take advantage of a person who is in a rough spot. That is why it is so important for someone who’s been injured in a car crash, slip and fall, or some other circumstance caused by another’s carelessness, to contact an experienced and knowledgeable personal injury attorney to determine their rights and see if they need an attorney. Make sure you talk to someone who is looking out for you, and willing to go to bat for you when the insurance company tries to play games.

If you are reading this post and you’re lucky enough to have never been injured as the result of someone else’s negligence, I hope this information can give a bit of insight into what it’s like for someone who has had their life disrupted by circumstances outside of their control. If you have been injured in a car crash, a slip and fall, or as the result of another’s carelessness, I hope this has helped you understand why its important to at least consult with an attorney to help understand your rights and what you’re entitled to.

 


When It Happens In Your Town: What Survivors of Mass Shooting Events Should Know About Their Rights

Jul 10, 2018 | Elizabeth Payne-Maddalena

This post was co-authored by Benjamin Boscolo.

Recently, a mass shooting event happened at the Capital Gazette in Annapolis, Maryland, not far from our Greenbelt office. Five Marylanders and committed journalists lost their lives when a gunman opened fire on the newsroom, and two more were seriously injured. Our hearts go out to the reporters who were simply doing their jobs when the shooter targeted them.  ChasenBoscolo stands with the Capital Gazette, Sun Newspaper Group and the Annapolis community.  

As of the posting of this blog, there have been 168 mass shooting events in the U.S. just this year. Unfortunately, as Americans know all too well, these events can and will happen anywhere. This number will continue to go up as long as lawmakers choose to ignore the root cause of the problem. In the meantime, those who are left behind – survivors and family members of those lost – have a long, arduous road to recovery that goes on long after the cameras leave and the attention of our leaders moves on to the next tragedy.

Many people do not know are their legal rights in the wake of these events. These rights vary from survivors left with physical injuries and mental scars, to the families left behind. Our hope is that this blog helps people understand what their rights are as they try to cope and heal. This isn’t just meant for those impacted by the Gazette shooting, or the Great Mills High School shooting, or the survivors in Parkland; but also the people who’ll be targeted in the inevitable next one.

Red Flags Ignored

When I was in college, back in 2007, I did a research project focused on the psychological mindsets of mass school shooters. One thing I discovered, which still rings true today, is that there are almost always warning signs of the coming violence – warning signs that many people, including people with the power to prevent the attack, knew about. In all of the mass shootings I studied, I learned that for a variety of reasons, these red flags are ignored. When the people in power ignored the warning signs, the result was the shooter being allowed to carry out his plans uninterrupted.

While these institutions or businesses may not have actually pulled the trigger, their choosing to turn a blind eye to the threat make them civilly liable for their negligence. That is what creates the legal right for survivors and family members of victims to bring civil lawsuits in order to be compensated for the damages they suffer as a result of the shooting.

Who has the right to sue?

The law only gives certain people the right to recover in these kinds of situations. Generally, the only people with the right to sue are those survivors directly impacted by the event, and certain surviving family members of those killed in the shooting. For those unfortunate people who were at the place where the shooting occurred, they can only recover if they are in the “Zone of Danger.”

Survivors of the Shooting

People who were actually present when the event occurred rarely walk away unscathed. They either suffer physical injuries from being shot or, more significantly, emotional and mental trauma, such as post-traumatic stress; or both. Survivors have the right to file civil lawsuits for damages to help pay for:

  • Hospital treatment
  • Rehabilitation and medical treatment
  • Psychological counseling and treatment
  • Expenses related to permanent injuries, such as making a home handicap friendly
  • Lost income due to injuries
  • Pain and suffering – both physically and mentally

Anyone with a physical injury has a right to be compensated for these injuries. This includes any mental or emotional distress, trauma, and treatment needed. Survivors have the right to be compensated for the previously mentioned costs and effects of the shooting.

But what about people that only suffered mental distress as a result of the shooting?

This is much more complicated. Generally, D.C., Maryland and Virginia first require that that the person was in the “Zone of Danger”. This means you were there, in the immediate area of the shooting (same room/floor/office) and were actually afraid of being shot.  Whether or not a survivor of a mass shooting is in the zone of danger is a very fact-specific determination.  To make things more challenge there are little differences in the law in Maryland, D.C. and Virginia that make it very hard to really break down the Zone of Danger here.  For example, each state and the District of Columbia have different rules about whether or not a person has to display physical signs or symptoms of their mental trauma to recover.  That’s why it’s absolutely essential for a survivor left behind with mental scars from trauma to talk to an attorney who is experienced with mass shooting cases.

Physical Wounds and Medical Treatment – Who Pays?

For many physically injured mass shooting survivors, the types of injuries they suffer require immediate emergency medical treatment. They’re taken from the scene straight to the hospital, by ambulance, helicopter, or, the backseat of emergency responders’ cars. For those with only minor injuries – broken bones and concussions from trying to escape the gunman – they’ll be quickly released. But survivors who suffer gunshot wounds face a long road to recovery, one that may take months, or even years.

Either way, a trip to the hospital alone costs thousands of dollars, money most Americans simply don’t have. Survivors who needs extensive treatment are faced with tens or even hundreds of thousands of dollars in medical bills.  So who pays for it? And who should pay now?

If you’re lucky enough to have health insurance, you should absolutely use it to cover the bills now. Many people think if they think they use health insurance, they can’t claim those medical bills paid for by their insurance in their cases. That is untrue. You can still claim those medical bills. Ultimately, the negligent party should pay for the medical bills, but in order to protect yourself in the meantime, health insurance can step in and pay for the care needed for recovery.

The Scars of Trauma – Getting Psychological Treatment

Immediately after a mass shooting event, local charities and organizations do a great job offering survivors grief counseling and making sure mental health hotlines are available. But for many, regardless of whether they were physically harmed in the shooting, the mental and emotional aftereffects last far longer than a few weeks – and require more help than what these resources can offer.  Victims deal with everything from survivor’s guilt to flashbacks, nightmares, and panic attacks. Some survivors find that the mental effects can be even more devastating and harder to heal than their physical injuries.

Luckily, grief counselors and crisis hotlines are incredibly helpful for finding mental health providers that specialize in helping trauma survivors. Be sure that whoever you see is experienced in dealing with post-traumatic stress.  It is even better if they’ve helped survivors of mass shooting events before. Either way, getting help as soon as you can is extremely important to help you process and recover from the trauma you’ve endured.

Just like with medical treatment, if you have health insurance, mental health treatment should be covered.

For Those Left Behind – Wrongful Death and Survival Claims

Unfortunately, many mass shooting events result in the loss of innocent lives: children, parents, friends, co-workers, brothers and sisters taken far too soon in an act of violence. Left behind are heartbroken family members and loved ones struggling to fill the holes left in their lives. They’re suddenly planning for funerals, which, according to https://www.parting.com, cost between $7,000 and $10,000. Many victims of mass shootings are young people, meaning they hadn’t financially planned for their deaths, leaving their loved ones shouldering heavy costs. When a parent is killed, the loss of income can devastate a family. This financial loss is magnified by the sudden and violent loss of their loved one and the accompanying public attention.

In these situations, there are two kinds of claims certain family members can bring: wrongful death claims and survival claims.  Let’s briefly explore these together

Wrongful Death claims:

A wrongful death claim is a claim brought by certain family members of the departed person which allows them to be compensated for the loss of their loved one. Only certain family members have the right to bring these kinds of claims. Those who have these right depends on whether or not the victim was married and has children, as well as surviving parents, brothers and sisters.  Finally, the people who have these rights differs between Maryland, Virginia and the District of Columbia. This is another reason it is important for surviving family members to talk to an experienced, knowledgeable attorney.

Wrongful death claims allow the family to be compensated for the following losses:

  • Any medical bills for treatment to the departed person as a result of the shooting
  • Funeral expenses
  • The loss of current and future income the victim would’ve earned
  • Grief, pain and suffering that the family endures from the loss of their loved one, both past, present and in the future.

One particularly tricky part of wrongful death claims is that (generally), the law only allows one claim to be made for all the family members who have the right to bring these claims. That means that everyone who wants to bring a claim, or wants to bring a claim, needs to be part of one action. Maryland requires all of the family members with the right to be a named party in the case, even if they do not want to participate or bring a claim at all. It’s important for close family members to discuss this option together, and keep the lines of communication open. Some families pick one person to be the main point of contact for any discussions with an attorney.

Survival Claims:

The other kind of claim available are survival actions. This is for the actual pain and suffering the deceased victim suffered during and after the shooting but before they pass away. This includes their fear as they realized what was happening, as well as when they realized that they were not going to escape unscathed. If the victim was unfortunate enough to survive after being shot – even if it was for just a few minutes – these claims also allow damages for their pain, anguish and suffering during their last moments.

Unlike wrongful death cases, survival claims are brought on the behalf of the victim’s estate – the legal entity that exists after a person dies. Any compensation is then paid to satisfy any of the victim’s outstanding debts, and then to any people who get to inherit from the estate. Who runs the estate (the “personal representative” or “administrator”) and who gets to inherit depends on a couple of things. First, whether or not the victim had a will. Second, if there was no will, who the law allows to serve as a representative. The family members who can inherit again depends on the law of the state where the mass shooting event occurred and whether or not the victim was married or a parent.

The Challenge of Proving Negligence in Mass Shooting Cases

These cases aren’t easy. There are a lot of weird legal nuances, as well as factual, evidentiary, and societal hurdles that survivors and the families of the victims have to face. We do not want to discourage anyone from exploring their rights, we just want to be completely honest and candid.

We’ve already hinted at some of these problems: proving that the survivor was actually in the zone of danger; overcoming laws limiting the kinds of actions survivor with only psychological injuries can bring; making sure all the right people are named and involved in wrongful death lawsuits. But there are a couple other big issues that we haven’t talked about.

Notice

Ok, so, as we mentioned above, these cases center around the ignored red flags around the shooter and his behavior before the shooting occurred. This brings up an obvious point: we not only have to prove that these red flags existed, we also have to prove that the entity we think is responsible knew about these red flags. Then we need to prove that the responsible entity chose to ignore the red flags, allowing the shooter to take his plans and turn them into a tragic reality.

We also have to prove that the responsible entity that knew about the red flags had a legal responsibility to protect the people who were eventually targeted. Not a moral responsibility, but a legal one. This is a very fact-specific determination (like so many other things in these cases) and is something an experienced attorney can definitely help you figure out.

Suing the Shooter Directly

There’s a very obvious party we haven’t talked about yet: the shooter. After all, he’s the one who pulled the trigger, he’s the one who chose to take the lives of innocent people.  Why aren’t we going after him?

The very simple reason is that these cases – meaning civil cases – only allow us to get our clients monetary damages. That’s the way the law works. Period. So, when there’s no money available to get – these cases are just simply not worth our clients’ time. It is not worthwhile for them to go through years of litigation (yes, we do mean years) to get nothing but a piece of paper in the end saying they won. There’s no question of who was in the right or the wrong here: we all know the shooter did something unspeakably evil.

So when we sue a shooter, unless they were a multi-millionaire, there’s nothing for our clients to collect. Homeowner’s insurance doesn’t cover these cases. Their contracts specifically deny coverage for intentional crimes like this.  That’s why we’re not talking about suing the shooter themselves: because we don’t want to force survivors and grieving family members to go through all this for nothing in the end.

The other reason is that when an entity picks to ignore a red flag, they are responsible. They made a choice, and then decided for some reason not to warn anyone, not to do anything to try to stop the shooter, limit the risk he prevented, or add extra security or safety to keep people safe. They didn’t pull the trigger, but their silence makes them complicit.

Immunity

One of the most important things to remember is that depending on the situation and where the shooting took place, there may be laws in place that shield those at fault from civil liability. This is called “immunity”, and who has immunity depends on what state the shooting occurred in. This is a very fact-specific determination, and is why it’s important for survivors and family members to talk to experienced lawyers who know what to look for.

One group of companies that families and survivors often believe should be held responsible are gun manufacturers. Unfortunately, Congress passed a law giving gun manufacturers total immunity from civil lawsuits, meaning these companies are legally shielded from responsibility. The only way that will change is if the law itself is changed.

If you have been the victim of or lost a family member to a mass shooting, it is important for you to contact a trial lawyer who is experienced in handling cases arising out of mass shootings. No matter what, we hope this blog has helped you get a better idea of what rights you have, legally, as you begin the long process of picking up the pieces left behind.


Contributory Negligence and Slip and Fall Cases: Why Your Fall May be Your Fault

Jun 25, 2018 | Shari C. Boscolo

According to the National Safety Council, falls are one of the leading causes of unintentional injuries in the United States, resulting in approximately 8.9 visits to the hospital every year. Oftentimes, these injuries occur because a landowner did not warn of a dangerous condition on his/her property or created a dangerous hazard on his/her property. Under Maryland, D.C. and Virginia law, anyone who owns or maintains any type of property is legally responsible for ensuring that the property is safe for the public. If they fail to do that, they may be responsible for any injuries that occur as the result of a fall on their property.

Although landowners bear responsibility for keeping their properties safe, our three jurisdictions still adhere to an archaic defense called contributory negligence. If an injured person is found to have contributed to the incident in any way, they cannot recover compensation for their injuries. The law does not allow an apportionment of fault; any contribution, no matter how slight, can completely bar an injured person’s right to recover damages.

How Contributory Negligence is Used in Slip and Fall Cases

Contributory negligence is argued in many ways. For instance, if an injured person is not looking where they are going, or if they have on some clothing that might impede their mobility, or if they are distracted in any way, this could form the basis for arguing that they contributed to their own injures and so are not allowed to recover compensation. Ignoring a warning sign or walking through an area which is not open to the public can also provide the basis for this defense.

Slip and fall injuries often occur in grocery stores. It is not unusual for produce and liquids to be left on the floors after being spilled or dropped by other patrons at the store. These spills, which are oftentimes left on the floor for long periods of time, create dangerous conditions for customers who could slip on this debris and become seriously injured. If a claim is made, the insurance company will argue that the customer was contributorily negligent by not watching where he or she was walking. Or, if there is a warning sign present, and the customer slips near that sign, the insurance company will again argue that the customer is wholly at fault. Once again, under our law, any fault at all on the part of the injured party precludes any recovery.

Oftentimes, when an injured person falls, the insurance company will put blame on the injured person by arguing that their choice of clothing made them contributorily negligent. For instance, they will argue a person contributed to their own injuries by wearing high-heeled shoes or that their floppy hat impeded their eyesight. Or, the insurance company may argue that the injured person was carrying lots of packages and that their decision to do this, while walking at the same time, caused the injury. Texting while walking or using the phone in any manner while in a public place subjects the injured person to an argument by the insurance company that they are responsible for their own injuries.

Any consumption of alcohol could bar recovery of a claim. It is very common for falls to occur at social gatherings. A person or an entity hosting a social event has a duty to all of the guests to ensure that the property is safe and free from any defects. If the host knows of a problem that you do not know about, the host has the obligation to warn you of the problem. For instance, if there is a staircase in the home that is missing a railing or has a loose step, the host must warn you of that problem so that you are not hurt. However, if you had been drinking at the party, and you fall down this dangerous staircase, your claim could be barred by your own negligence. It doesn’t matter how dangerous this staircase is; your decision to consume alcohol may become an issue in resolving your claim.

Many injuries occur on private property, perhaps in a neighbor’s yard, in their pool or around the house. Common sense suggests that if your neighbor creates a hazard, such as leaving a hose strewn across the lawn or allowing ice to accumulate on the sidewalk, that your neighbor would be responsible for the injuries that their carelessness creates. However, you too are responsible for your own choices when you visit your neighbor’s home. When you fail to “see what there is to be seen,” or when you choose to cross over the icy part of the sidewalk, the insurance company may decide that your conduct gives them the ability to withhold any settlement of your case.

How You Can Help Change the Law

For many years, lawyers who represent injured people have been lobbying their state legislatures and bringing cases before our states’ highest courts in an attempt to nullify the defense of contributory negligence. Our jurisdictions make up three of the five states that continue to completely bar recovery to injured people if they are at fault at all. Maryland’s highest court has recently ruled that any change in Maryland’s contributory negligence law must be enacted solely through the legislature, which has the ability to pass a bill to preclude this defense. For Marylanders, this means lobbying your elected officials in Annapolis is an effective way to change this dated and harmful defense.

A vast majority of the states adhere to a doctrine called “comparative fault.” This generally means that if the injured person is partially at fault, the jury may reduce the amount of damages by the percentage of the injured person’s own fault. For instance, if a jury finds that the injured person is 10% at fault, the verdict would be reduced by that amount. This system apportions fault among the parties and generally results in fairer verdicts.

Unfortunately, slip and fall incidents are likely to occur. Parking lots are slippery, stores are not maintained and repairs are not made in a timely manner. It is difficult in everyday life to fully insulate yourself from the poor choices made by others. Protection against injury and against a claim of contributory negligence requires some diligence and a constant awareness of your surroundings.

What should I do if I’m injured in a slip and fall?

If you are injured in a store, or a home, or a parking lot or any premises, it is important to take pictures of the area where you fell, to document the clothing you were wearing, to write down the names and addresses of all witnesses and to obtain a copy of any incident report that is made. It is also important to write down the exact details of how you fell and what caused you to fall. For more information about what kinds of information and evidence you should collect after being hurt in a slip and fall, take a look at my colleague Patrick Stewart’s blog post.

Do not speak to the insurance company about your case. It is prudent to retain an attorney early on in these types of cases so that you and your attorney can review your own actions. When you retain an attorney, make sure to disclose every detail of your fall; particularly what you saw, what you heard and how you acted.

Slip and fall accidents can result in serious and permanent injuries. Remember, if you fall, the insurance company and their lawyers are always looking for ways to make your fall your fault.


Protecting the Shield: Where the NFL Got Authority to Suspend Ezekiel Elliott and Why It Took So Long

Jun 18, 2018 | Alexander Rogosa

On August 11, 2017, the National Football League (NFL) and NFL Commissioner Roger Goodell issued a six-game suspension to star running back Ezekiel Elliott, concluding their investigation into his alleged domestic violence. On November 9, 2017, Ezekiel Elliott began serving that suspension in Week 10 of the NFL’s season. Whether you follow football or not, it was nearly impossible to ignore the news coverage of this drawn-out dispute, but how we got from point A to point B still has many people scratching their heads. To understand this whole case, it’s necessary to back up a few years and compare it with other recent legal battles the NFL has fought with its players. I’ll guide you through what happened, why it matters and what it means for the future.

The Case Against Elliott

While the three-month dispute over Elliott’s suspension felt interminable to many, his case actually began back in July 2016, and the foundations of the legal suit trace back still further. It was on July 17, 2016, that Ezekiel Elliott first reportedly had an altercation with his then girlfriend, Tiffany Thompson, and there were subsequently two more instances over the next week that the NFL investigated.[1] While a police report was filed in Columbus, Ohio, on July 22, 2016, the Columbus City Attorney’s office ultimately determined not to prosecute the matter.[2] The NFL conducted its own investigation of the case, led by former assistant district attorney Kia Roberts, which they released concurrently with the publication of their penalty on August 11, 2017.[3] This investigation and Elliott’s six-game suspension were issued by the NFL under the terms of its updated Personal Conduct Policy that the NFL announced on December 10, 2014. This policy change was a reaction to two similar scandals the NFL confronted that year, and the policy established new case review procedures, harsher penalties for violations and community resources meant to prevent such situations.

How is the NFL able to regulate player conduct?

The authority of the NFL to discipline players comes first and foremost from the collective bargaining agreement (CBA) that the league and its players negotiate every few years. In addition to disciplinary procedures, this agreement regulates issues such as player wages, hours, working conditions and a myriad of other issues pursuant to the National Labor Relations Act.[4] The most recent NFL collective bargaining agreement went into effect in 2011 upon the resolution of an NFL lockout, and will last through the 2020 season. Article 46 of the collective bargaining agreement between the NFL and the National Football Players Association (NFLPA), which governs personal conduct, does not include a “just cause” provision for penalties imposed by the commissioner.[5] The absence of a “just cause” provision means that the NFL is not entirely bound by the standards of industrial due process as they relate to “double discipline” and “disparate treatment,” but the league must still be fair and consistent in its disciplinary decisions.[6] Legal challenges to the league’s discipline by individual players or by the NFLPA must demonstrate that the punisher abused their discretion in reaching a penalty that was arbitrary and capricious. [7] The events of the past few years should make the disciplinary powers of the commissioner a more contentious topic in the next round of negotiations than it ever was before.

Commissioner Goodell announced the first iteration of the Personal Conduct Policy in April of 2007, with the support of then NFLPA head, Gene Upshaw, as part of a sweeping move to resuscitate the League’s image following a series of high-profile player arrests. When issuing the first two punishments to Pacman Jones and Chris Henry, Goodell explained “your conduct has brought embarrassment and ridicule upon yourself, your club and the N.F.L., and has damaged the reputation of players throughout the League … You have engaged in conduct detrimental to the N.F.L. and failed to live up to the standards expected of N.F.L. players.” The Commissioner’s statements illuminate the league’s goal of protecting its brand image, which is instructive for how the court of public opinion can influence their assessment of penalties.

The Cases That Came Before Elliott’s

Since 2007, the NFL has issued numerous suspensions pursuant to its Personal Conduct Policy, with the two main precursors to Ezekiel Elliott’s case being those of Ray Rice and Adrian Peterson in 2014. While many also analogized the situation to Tom Brady’s protracted legal battle with the NFL during 2015 and 2016, the uniqueness of that case’s facts do not provide as much insight as the similar offenses of Rice for domestic violence and Peterson for child abuse. For those who recall those suspensions and the litigation that followed, one key difference likely jumps out: both Ray Rice and Adrian Peterson won their court appeals of the NFL suspensions. Why did they succeed where Elliott failed? Well, the NFL learned something from those missteps, addressing some in their new 2014 policy, and others as Elliott’s case unfolded.

Ray Rice

On February 15, 2014, Ray Rice hit his then fiancée, Janay, in the elevator of an Atlantic City hotel.[8] Ray Rice was subsequently indicted, and under the 2007 Personal Conduct Policy, the NFL needed to wait until all criminal investigations were resolved before issuing any discipline. [9] That is no longer the case. The NFL now conducts more thorough investigations of their own and can react to situations as quickly or as slowly as it pleases, irrespective of criminal cases.[10] When the NFL and Commissioner Goodell first assessed Ray Rice’s case, they issued a two-game suspension. At the time, that matched the harshest penalties ever imposed upon a first-time domestic violence offender.[11] Some expected a harsher penalty and were disappointed by the league’s response, but that outcry grew tenfold when a second video of the blow itself came to light on September 8, 2014. [12] Commissioner Goodell suspended Ray Rice indefinitely in response, claiming that the video displayed a “starkly different sequence of events” from what Rice stated at their June 16, 2014, meeting.[13] When the case reached Judge Jones, she felt that an indefinite suspension for Rice was unlikely to qualify as an abuse of discretion, if that was the initial discipline issued.[14] She came to that conclusion despite evidence that a domestic violence situation never resulted in more than a two game suspension before. However, the indefinite suspension was not the only issue up for review, but also the Commissioner’s determination to increase his initial punishment. Judge Jones ruled that “Rice did not mislead the Commissioner and because there were no new facts on which the Commissioner could base his increased suspension, [she] found that the imposition of the indefinite suspension was arbitrary.”[15] In future cases, such as Elliott’s, the NFL would spend significantly more time and money investigating matters before levying a penalty. The league would also err on the side of harsher penalties from this point on, since they maintained authority to reduce penalties if they chose, but now had a limit on their ability to increase penalties.

Adrian Peterson

On November 4, 2014, Adrian Peterson pled no contest to a misdemeanor assault charge for excessively disciplining his four-year-old son by beating him with a stick.[16] In response to public outcry over this example of child abuse, on the heels of Ray Rice’s domestic violence scandal, Commissioner Goodell chose to suspend Adrian Peterson for the remainder of the NFL season.[17] The length of Peterson’s suspension, while longer than previous suspensions for similar cases, was not the basis of 2014’s second high-profile grievance that the NFL Players Association filed against the league. The union argued this case on behalf of Adrian Peterson because he supposedly reached an agreement with the league that stipulated he could return to playing once his legal case concluded if he accepted placement upon the NFL Commissioner’s Exempt List during the interim.[18] Peterson played the first game of the 2014 NFL season prior to his indictment and the Minnesota Vikings originally announced that he would return for the third game of the season after his release on bond from Montgomery County.[19] The announcement created a whirlwind of disapproval, coming from as high as the governor of Minnesota and U.S. Senators, while numerous corporate sponsors pulled their support.[20] The League helped the Vikings quickly reverse course by negotiating Peterson’s placement on the Commissioner’s Exempt List, giving him full payment but precluding him from playing while his case resolved.[21] Judge Doty concluded, “the Court finds no valid basis to distinguish this case from the Rice matter,” and overturned the suspension, deeming it was another example of the league changing its initial decision about how they would discipline a player.[22] After a second straight defeat, the League needed to change tactics to put themselves on safer footing.

How the NFL Adapted After the Rice and Peterson Cases

The NFL would no longer be in the business of cutting deals with organizations or players. They still expected full cooperation from players during investigations but now made no offers in return. In fact, since the cases of Ray Rice and Adrian Peterson, the league has rarely tipped its hand about potential punishments until the date it is officially announced. This is likely how we arrived at the Cowboys owner, Jerry Jones, telling reporters on July 23, 2017, that domestic violence would not be an issue with the NFL’s yearlong investigation and that he did not expect Elliott to receive any suspension. This was barely two weeks before the Commissioner issued the six-game suspension.

During public outcry about Ray Rice’s second video, Commissioner Goodell sent a letter to the NFL Owners on July 15, 2014, writing that he “didn’t get it right” and was changing the Personal Conduct Policy from one that contained no minimum suspension for first time domestic abusers to a presumptive six-game suspension.[23] The updated Personal Conduct Policy with this specification went into effect on December 10, 2014, after a vote of approval by the thirty-two teams. The suspension Goodell mentioned for first time offenders was the same amount levied against Ezekiel Elliott in 2017.

What Happened in Ezekiel Elliott’s Case

Elliott appealed his suspension first within the NFL and, pursuant to the conduct policy, it was heard by Commissioner Goodell’s designee, Harold Henderson, on August 29, 2017.[24] In years past, a suspension appeal often meant a reduced sentence and that everyone would move forward, but after two high-profile losses, the League needed to show it meant business. Its revised policy put the League on stronger footing to hold its ground. The appeal hearings lasted two and a half days, and with the regular season only ten days away, Elliott filed a petition in the Eastern District of Texas to vacate the pending decision.[25] The argument against the suspension was predominantly that the suspension and arbitration processes were unfair because the review was incomplete after certain pieces of evidence and potential witnesses were barred from consideration. The NFL relied upon the broad disciplinary powers provided to it in the collective bargaining agreement, and the later drafted Personal Conduct Policy, to review whichever evidence it deemed relevant and asserted that those requirements were met during this process.[26] Elliott also filed his first motion for a temporary restraining order of the suspension.

A temporary restraining order (TRO) in this case provided for an emergency hearing to prevent the suspension from going into effect. To secure that ruling, Elliott needed to demonstrate that he would suffer immediate, irreparable injury unless the order was issued. In Elliott’s case, the potential for irreparable harm was always pretty clear with the season so close to starting. Waiting for the court to schedule a full hearing on the merits would mean that Elliott was forced to miss games and effectively serve part of his suspension before the court ruled on its legality. While appealing in the Eastern District of Texas, the NFL’s arbitrator, Harold Henderson, issued his ruling on September 5, 2017, that the six-game suspension would stand, and the NFL filed in the Southern District of New York, where the arbitration was held, to get an order affirming its decision.[27] The Texas judge granted Elliott the TRO on September 8, 2015, and the NFL appealed to the U.S. 5th Circuit Court on the grounds that Elliott filed this case prematurely because he opposed the arbitrator’s decision before finding out what it was.[28] On October 12, 2017, the 5th Circuit agreed with the NFL, rescinded the TRO, and ordered the District Court in Texas to dismiss the claim, which temporarily reinstated the suspension.[29]

On October 16, 2017, Elliott filed in the Southern District of New York to get another TRO issued, while in the meantime he was unable to practice or have contact with coaches.[30] The Court held a hearing the following day and the judge granted a TRO, thereby allowing Elliott to play in the next 2 games because the TRO was effective for fourteen days, as most are. On October 30, 2017, Elliott had another hearing before the Southern District to determine whether they would issue the one-time extension of their TRO for his case, but this request was denied.[31] Extensions to a TRO are given out sparingly since they are intended to be a short-term stopgap before a more developed review of the case takes place through a petition for a preliminary injunction. A preliminary injunction, unlike a TRO, can stay in place up until a case gets to trial, but it carries an additional burden to the petitioner. Along with showing irreparable harm, petitioners must demonstrate it is more likely than not that they will win the case at trial to receive a permanent injunction.

Elliott applied for such a preliminary injunction with the U.S. 2nd Circuit Court of Appeals and on November 3, 2017, they issued an administrative stay postponing the suspension yet again until they could conduct a hearing on his request.[32] On November 9, 2017, the 2nd Circuit denied his motion for a preliminary injunction, leaving him with few legal options to avoid serving the six-game suspension.[33] Why did they reject his request? While the irreparable harm analysis still cut in Elliott’s favor, the Court supported the NFL’s position that it had broad authority over what evidence to consider in levying suspensions and what the appropriate severity should be.[34] After the ruling by the 2nd Circuit’s three judge panel, Elliott had exhausted his guaranteed appeals under the law and only had two immediate options. He could appeal en banc to the 2nd Circuit and have all of its judges sit and rehear the request, or he could appeal directly to the U.S. Supreme Court. Neither court was obligated to accept his request to consider the issues, so on November 15, 2017, Elliott announced that he would give up his fight against the suspension and serve the remaining games.[35]

What This Means for Future Cases

Elliott’s acceptance of the suspension occurred at the same stage of the case as when Tom Brady elected to discontinue his appeal. After a couple losses seemingly chipped away its authority, the NFL had won two high-profile cases in a row—that is, if you consider it winning to have a multi-year process drag a prominent league star through extensive legal proceedings for them to eventually miss a quarter or more of your sports season. Ultimately though, these battles were as much for the future of League discipline as they were for the individual cases. The League needed the courts to reassert its broad authority under the CBA and its Personal Conduct Policy to hopefully ensure smoother disciplinary resolutions in the future. After getting that affirmation, the NFL Players’ Association will likely strike back through their negotiations on the next CBA, which must be ratified for the 2020-2021 season, rather than continued challenges in court. With a number of contentious issues set for this next negotiation, including revised profit sharing, the right of players to protest, concussion concerns, and guaranteed contracts, the Personal Conduct Policy and player discipline may become another issue pushing the league towards a work stoppage. However, both sides seem to desire a smoother resolution to future disciplinary disputes like Ezekiel Elliott’s, so perhaps that serves as a bridge or a bargaining chip to weigh against the NFL’s many other labor issues.


[1] See John Breech Lead NFL Investigator In Ezekiel Elliott Case Reportedly Recommended No Suspension, CBSSports.com, (September 1, 2017), https://www.cbssports.com/nfl/news/lead-nfl-investigator-in-ezekiel-elliott-case-reportedly-recommended-no-suspension/

[2] Id.

[3] Id.

[4] See 29 U.S.C. § 159(a).

[5] See NFL CBA 2011-2020, Art. 46 §1(a) available at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.

[6] Ray Rice, Tr., 164:25-165:6 (Goodell); Ray Rice, Tr., 385:2-386:13 (Birch); see also Bounty, 16 Final Decision 4 (Dec. 11, 2012); Ray Rice, Exhibit 33.

[7] Id.

[8] In the Matter of Ray Rice, Decision, 1 (Nov. 28, 2014).

[9] See National Football League, 2008 Personal Conduct Policy 1-3 (2007), available at http://www.prostaronline.com/draftee/personal_conduct_policy.pdf.

[10] NFL Communications, Key Elements of New Personal Conduct Policy, NFLcommunications.com, (Dec. 10, 2014), https://nfllabor.files.wordpress.com/2014/12/12-10-14-key-elements.pdf.

[11] See In the Matter of Ray Rice, Decision, 2 (Nov. 28, 2014).

[12] See id.

[13] Id.

[14] See Ray Rice, Decision, 15.

[15] Id. at 18.

[16] Id.

[17] Id.

[18] See id.

[19] Molly Bloom, Adrian Peterson’s Suspension: What You Need To Know, MPRNews.org, (Nov. 18, 2014, 10:33pm), http://www.mprnews.org/story/2014/11/18/adrian-peterson.

[20] Id.

[21] Id.

[22] NFLPA v. NFL Management Council, CASE 0:14-cv-04990-DSD-JSM, 13, (USDC Dist. Minn. 2015).

[23] Ray Rice, Exhibit 42; Ray Rice Tr. 204:3-21.

[24] See Kate Hairopoulos Ezekiel Elliott Timeline: The Suspension, The Appeal, And Where The Cowboys RB Stands Now, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/09/ezekiel-elliott-timeline-suspension-appeal-cowboys-rb-stands-now

[25] Id.

[26] See Kate Hairopoulos Ezekiel Elliott Timeline: The Suspension, The Appeal, And Where The Cowboys RB Stands Now, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/09/ezekiel-elliott-timeline-suspension-appeal-cowboys-rb-stands-now

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] See Jeanna Thomas Ezekiel Elliott Suspension Back On Effective Immediately With 2nd Circuit’s Latest Ruling, SBNation.com, (November 9, 2017), https://www.sbnation.com/2017/11/9/16603064/ezekiel-elliott-6-game-suspension-domestic-violence-appeal

[35] See Kate Hairopoulos Why Ezekiel Elliott Withdrew Appeal Of Six Game Suspension; What’s Next For The Cowboys RB, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/15/ezekiel-elliott-withdrawing-appeal-six-game-suspension-according-report


Crash Victims Matter: Understanding the Role of Law Enforcement After a Collision

Jun 11, 2018 | Melody Haynes

Victims matter. You may have heard or seen a version of this statement many times, given the apparent unrest and violent eruptions in many communities throughout the nation. Some may feel that this phrase (or a variation thereof) is probably a little overused and not always uttered with clarity or sincerity. However, that does not diminish its truth: victims do matter. Many of you, or at least people you know, have had the most unfortunate experience of being immobilized and victimized by a random stranger’s inept driving and recklessness. You do not have to feel powerless as you sit in shock, and maybe in pain, on the side of the road. Ponder this advice and let it embolden you and your loved ones if, or more likely when, you are put in that horrible predicament.

After being victimized by a car crash, what you do thereafter also matters. You can increase the capacity for physical and emotional healing, as well as reasonable compensation for this potentially life-changing event, notwithstanding the miserable harms and losses. The answer to how this can be accomplished may surprise you: so long as you are able to safely do so, get the police involved. If this seems underwhelming from previous police encounters, let us explore exactly how you can obtain useful information that can be decisive in future negotiations and/or litigation, if necessary.

Most will probably concede that in personal or critical injury and fatal crashes, the resources and investigation tactics employed by law enforcement officers are indispensable. However, even in collisions where there is no obvious trauma, only minor apparent property damage, in the event of a hit-and-run or in other roadside public disturbances, law enforcement officers can still render invaluable assistance and make additional determinations about commencing investigations that can prove vital as you are attempting to recover from the wreckage.

A responding law enforcement officer can help identify non-obvious safety hazards or additional threats to your personal safety. Witness identification, evidence preservation, traffic restoration, and property protection are further benefits of police involvement.

Regardless of the magnitude of the crash, Law enforcement officers have a duty to respond when called. Even in the event of no visible injury and when no official report will be issued, an officer can assist the involved parties with exchanging information. People can seem unapproachable or intimidating, especially when emotions are high after a collision. If it is safe, remain in your car and wait for the authorities to respond to facilitate the exchange. Parties should exchange driver’s licenses, vehicle registration, and insurance information. The responding officer should run a record check of all licenses and vehicle registrations, even when they appear to be valid. This can protect you against fraud. If the information presented cannot be verified or if additional issues or violations exist, the officer should issue applicable citations or supplemental reports.

In addition to verifying the identity and possibly charging the person who hit you, an officer can generate a report that objectively documents the date, time, location of the incident and comprehensive information regarding the cars and parties involved. In most cases, the weather, lighting and roadway conditions will be noted along with collision diagrams and pictures. Officers can obtain statements from the parties and examine the vehicles, assigning fault and registering contributing factors such as evidence of speeding, broken brake lights and missing signals. This can protect you against future false allegations that may attempt to shift any fault to you.

In every case in which a law enforcement officer responds to an incident, a Complaint Control Number (CCN) or case reference number will be assigned. Interested parties can then follow up with the local police station or barracks to acquire or make any related reports.

While the officer is running reports and gathering information, take a few moments to catch your breath. After a crash, your body may be in a bit of shock. Try to listen to your body; if something does not feel right, do not ignore it. Do not feel shamed about requesting medical attention when an injury may not be completely obvious. You may find that most law enforcement officers define “personal injury” as an injury that is observable or evident or for which a person is transported by ambulance. Police may totally discount only complaints of pain or discomfort without the request for hospital transport. Your health and safety are precious. Let a medical professional expertly assess any trauma. Even if you do not believe you need to be transported to a hospital, try not to needlessly move about the scene. Your body may have a delayed reaction to the impact as adrenaline can mask injury symptoms. Make sure you do not ignore any dizziness or pains. Get the treatment you need right away. Having a professional diagnose your injuries and correlate them with the motor vehicle collision can not only get you started on the path to physical recovery sooner, but it can also strengthen your credibility and secure the records needed for any future claims. Additionally, feelings of anxiety after a car crash can also be an unfortunate common occurrence. There are many ways you can work through those feelings with professional care, personal attention and time. Do not be afraid to explore your resources.

Take the opportunity to ask the responding officer questions. You may need to follow up by making your own report at the station. If new information is uncovered after a collision, a law enforcement officer will not likely have to produce a new or updated report. However, this is something that you can accomplish to preserve the record and chronicle all relevant happenings.

Hit-and-Run Cases

If you are ever the unfortunate victim of a hit-and-run, be sure to alert your local law enforcement agency right away. An officer will not be dispatched to investigate crashes that occurred on, or were discovered on, a previous date. When you delay in contacting law enforcement, you effectively diminish the chances of obtaining valuable evidence, rendering police investigation essentially moot. Again, when police arrive to investigate after a crash has occurred, and the scene has been stabilized as much as possible, their examination of the facts determines what happens next and whether an official report or additional resources are needed. To effectively develop investigative leads, the timing has to be just right to identify and interview potential witnesses and drivers, make observations of other vehicles near the scene close to the time of the occurrence, recover physical evidence that can properly be identified as being left contemporaneously to the incident and register as many details as possible while they are still fresh in your memory.

Law enforcement officers handling a hit-and-run can be expected to make all efforts to identify the striking vehicle and the vehicle’s driver. When the description of a suspect or suspect’s vehicle is available, it will likely be broadcasted from the scene. If the victim is able to record a tag or partial tag number that allows police to identify an owner, a report should document the subsequent contact with that person and record any explanations or relevant statements offered. Most law enforcement officers will have the authority to make a full custody arrest of a hit-and-run suspect, although other permissible procedures can include the issuance of citations or application for a warrant.

For a hit-and-run that has occurred on an earlier date, you may still file a report, but will need to contact your local law enforcement agency to determine the correct forms and processes.

Additional Situations That Factor Into Police Reports

As suggested before, Law enforcement officers are not required to generate an official report for every collision. In a single- or multi-vehicle property damage crash where the vehicles may or may not be disabled but are not on public property, an official report may be optional. Crashes on public roadways not resulting in disabling damage to any vehicle or not causing an impediment to the roadway may also not yield an official report. Nevertheless, you can still expect officers to follow proper procedure by ascertaining the possession and validity of drivers’ licenses, checking vehicle registrations and VIN plates against registration documents and plates and determining the wanted status of drivers or vehicles. In the event of a discrepancy, it should also be expected that the officer will then issue an official report.

Law enforcement officers are not totally infallible and the reports they generate may occasionally contain mistakes, mischaracterizations or important omissions. Law enforcement officers are primarily tasked with public safety concerns, civil infractions and criminal violations, and they may appear reluctant to get involved in determining civil liability. Try not to fret, as you can overcome these challenges as well. If an officer fails to attribute fault to the person who hit you, many times there is other evidence of contributing factors or even partial statements that can identify the negligent party. Insurance companies will often conduct their own investigation into what happened, especially if you are contesting what has been recorded. The evidence your insurance company uncovers can be sufficient to corroborate your recitation of the occurrence.

More often than not, reports of Law enforcement officers may be deemed inadmissible hearsay in civil proceedings. Accordingly, photographs of property damage and the scene of the crash, as well as repair estimates, medical records and testimony, can fortify your case. Notwithstanding any police error, with the assistance of competent counsel, you can attain a settlement or judgment that adequately endeavors to compensate you for all that has been lost.

In many cases, the law does not require you to contact the police. However, even when you do not make the call yourself, someone else does and an officer may arrive at the scene of your collision. The law enforcement officer has responded to ascertain if medical attention is required, to conduct an investigation into the occurrence and to prevent further disruption to the public or traffic. Naturally, one of the first things a responding officer will do is make contact with the drivers and attempt to discover what actually took place. There is no law that requires motorists to answer every question posed by an officer. However, being nonresponsive or rude is not appropriate either and will not prove helpful. For the most part, if an officer asks for your license, registration, and insurance information, you should comply with this request. If you fail to comply, you may then be issued citations or may be arrested.

When you are the regrettable victim of a car collision, there should be nothing to fear in dialoguing with the responding officer, especially if the other driver is quite obviously at fault and you have not done anything wrong. However, if for whatever reason you do not wish to speak with an officer, try to be polite and advise them that you do not feel comfortable answering any additional questions or that you would like the opportunity to first consult with an attorney. If an officer is generating a report, any statements you make can be recorded or noted as part of the investigation. What you say is important, and you should be afforded the opportunity to collect your thoughts or reserve your right to make an official report at a later time.

In conclusion, when someone else makes the decision to talk on his or her cellphone, run a red light or reach down for a coffee and crash into you, you have been victimized. Take time to assess your body and check on any passengers. If you can safely make a call, reach out to law enforcement. Regardless of how major or minor you feel the collision is, the assistance, verifications, evidence preservation, traffic restoration and reports that an officer can provide can empower you, changing you from a victim to a survivor, and from a survivor to a vanquisher.


Returning to Work After an On-the-Job Injury

Jun 04, 2018 | Casey Duchesne

After a major injury while at work, the last thing you may be thinking about is getting back to work. Between medical care, household bills and pain from your injury, the idea of returning to life as normal may seem like a dream. Many of our clients come to us with no knowledge of the workers’ compensation system, which was originally meant to be a “user-friendly” system that an injured worker could navigate without the assistance of a lawyer. Many injured workers quickly find out it is anything but, and that’s when they come to us for help. The goal of any workers’ compensation attorney is to help their client navigate the system and to help them eventually return their life to normalcy.

I have the privilege of working with some fantastic, seasoned attorneys here at ChasenBoscolo who are able to explain the complexities of the law, comprehend and analyze medical records and make sophisticated legal arguments on a daily basis. While all this is crucial to our mission of taking care of our clients, sometimes the best advice is the simplest. Through our experience handling workers’ compensation cases throughout D.C., Maryland and Virginia, we have found that there are certain universal truths to dealing with the workers’ compensation system. One of the basic rules of getting through your workers compensation case is, “When your Doctor tells you to go back to work, try.”

Why should I try to go back to work?

For many people, returning to work after an injury can be scary idea. Will I get hurt again? Will I be able to do my job like I used to? Will my employer treat me differently? While the barriers, both physical and mental, of returning to work can be high, we have found that there is a great value in attempting (and hopefully succeeding in) returning to work.

The first reason for this is a practical one: workers’ comp only pays you 2/3rd of your average weekly wage. In the world of workers’ comp, you will hear a lot about “AWW” and “Comp Rate.” Your comp rate is determined by taking 2/3rd of your average weekly wage. This is the amount that will be paid to you while you are temporarily and totally incapacitated from work. While this amount is tax free, it presents a financial burden to many clients, as it is typically less than most clients take home. Also, depending on your employer’s policies, you are often missing out on other benefits, such as contributions to retirement plans, health insurance and many other benefits. We understand the financial burden that a workplace injury can place on our clients.

The second reason is more of an emotional one. For many, like all of us here at ChasenBoscolo, our workdays are not just a source of a paycheck. Work can be a calling, a mission, a way for us to help and care for others. Without the ability to contribute to the world, one’s self-worth can often suffer.

Work can also be a place for social connections. Missing out on work for months at a time can be isolating. Returning to work allows injured workers to be around supportive co-workers and remain in touch with their workplace friends.

What if my doctor says I can work, but puts restrictions on what I can do?

One of the most crucial points in any workers’ comp case is when an injured worker has been cleared by their doctor to return to some sort of work. This is often called “light duty,” or returning to work with restrictions—a doctor can write a list of temporary or permanent restrictions outlining what physical restrictions an injured worker may have when they return to work. Under Virginia Code § 65.2-502, an injured employee who has been returned to work in some capacity is entitled to temporary partial disability benefits. When you return to work but are making less than you were pre-injury, either because your employer has found a new temporary job for you or because you are working fewer hours, your employer will be responsible for the temporary partial benefits. In order to prove eligibility for temporary partial disability benefits, an injured worker has to show that they have restrictions on what they can do at work and that they are earning less than they were at the time of their injury. There are also other responsibilities that the Virginia Workers’ Compensation Commission places upon an injured worker in this situation, and if you find yourself in this position, you should consult with an experienced workers’ compensation attorney to explain these.

Sometimes, after a workplace injury, your employer could offer you work within your restrictions, often called selective employment. Here, the burden is on the employee to attempt to do the work offered within the treating doctor’s recommendations. Under Virginia Code § 65.2-510, if an employer offers an injured worker selective employment, that is, employment within the restrictions, and the employee refuses, they will not be entitled to wage loss benefits. This is another reason why, when given the chance to return to work, in this case for your prior employer, it is best to do so.

An injured worker who has been cleared by their doctor to return to a partial work capacity and is making less money than they were pre-injury, either because of reduced hours or because their employer does not have a light duty position for them to return to, is obligated to “market” their remaining work capacity. What this means, in layman’s terms, is to look for another job.

While the requirements of marketing that will satisfy the Virginia Workers’ Compensation Commission are best addressed in their own, separate blog post, the marketing requirement shows the importance that the Commission places on attempting to return to work.

An entire cottage industry of vendors has developed to help insurance companies lower their costs and return injured workers to gainful employment sooner. One is a specific type of physical therapy called work hardening or work conditioning. The goal of either of these programs is to condition the body to return to a full day of work, prevent future injury and assist individuals in getting back to work. Oftentimes, these programs simulate the activities that an injured worker will perform at work and are meant to help the injured worker have an easier, as well as a faster, transition back to work. Injured workers should attempt to participate in these programs to the extent that they are in agreement with what their doctors are ordering.

One of the most difficult conversations workers’ compensation attorneys have with their clients is about the things that workers’ comp cannot do for them. The list is large, but one of the toughest is the inability to hold your job. Workers’ compensation, unlike FMLA leave, does not mandate that your employer hold your job for you. This varies from employer to employer, but it is always best that employees keep open the lines of communication between themselves and their employer while they are out on medical leave. By returning to work quickly, or at least demonstrating to your employer a willingness to attempt to return, many injured workers increase their chances of their job being there once they are cleared to return to work.

When an injured worker is under an “open award,” but they have been cleared by a doctor to return to “full duty” work, the employer will most likely file to terminate their benefits based on the worker’s ability to return to work. The test here is if the injured worker is able to return to their pre-injury job. When a Commissioner is examining the injured worker’s capabilities, they will look beyond the medical records. Meekins v. Legends Group/Heritage Golf Club, 77 O.W.C., holds that a bona fide attempt to return to work is better evidence than a medical opinion of the employee’s ability to do so. If an offer of selective employment is made to an injured worker within their restrictions, the burden is on the worker to show that they were justified in refusing the work. If an injured worker has actually tried to return to that work and experienced too much difficulty, the Commission will give great deference to that credible testimony.

In Sky Chefs v. Rogers, a truck driver was injured while working for Sky Chefs, which prepared and delivered food to airplanes. Sky Chefs, Inc., v. Rogers, 222 Va. 800. The insurer eventually filed an application alleging that Mr. Rogers could return to his regular employment, therefore cutting off his workers’ compensation benefits. Mr. Rogers eventually returned to work, but while at work, he was in pain, and eventually fell. Even in the face of difficult medical testimony against the claimant, the Commission found that he was unable to perform his work duties, based on his credible testimony about his return to work. “The commissioner found that Rogers ‘functional inability to continue to perform his food handling duties (associated with his persistent symptoms of periodic numbness, pain and swelling) casts doubt upon the employer’s assertion that the claimant was able to return to his former employment in the date in question.”

Another reason it is important to try to return to work is for the possibility of job and career advancement, including any pay raises. While you can receive wage loss benefits for up to 500 weeks in workers’ comp, the rate at which you will be paid is “locked” to when you get injured (with the exception of small cost of living increases). If you work in a field with regular pay raises annually, or different levels of compensation, your workers’ comp payments will not reflect that. By not working, you are missing the opportunity to grow in your career and make more money.

An example of where the commission looked favorably on an injured worker who returned to work is the Starbucks Coffee Co. v. Shy case. Here, Ms. Shy was out of work, but returned for a brief period of 12 hours. Her employer attempted to terminate her benefits, but the Commission found that the employer did not meet their burden of demonstrating that the injured worker could return to her work duties. The burden is on the employer to demonstrate that the injured worker is capable of returning to work, and as this case shows, they cannot meet this burden by simply saying that the injured worker worked for a brief period of time.

There have been times when the Commission has looked harshly upon injured workers who they believe could return to work and haven’t. This can have the effect of termination of benefits. In Webb v. Eastern Airlines, the court found an injured flight attendant did not properly attempt to return to work. Here, the company’s written policy was that an injured employee must be cleared by the company’s doctor. She did not have this clearance, but there was no evidence that she attempted to get this clearance: “there is no evidence that she attempted to return to work or comply with Eastern’s policy.” The Commission seems to be saying that the injured worker didn’t even try to get back to work, and because of this, her benefits were terminated.

What if I don’t think I’m ready to go back to work?

One of the most frequent questions that we get as workers’ compensation attorneys is from injured workers who do not feel either mentally or physically able to return to work, but who have been cleared by their treating doctor, to return. In order for your medical providers to return you to work, it is crucial that they understand the physical requirements of your job. It is not enough to tell your doctor your job title or that you lift things. Describe in as much detail as you can what your day-to-day job duties are, and how many times per day you are expected to perform them. A doctor may be returning you to work without a full understanding of the requirements of your job, and therefore, returning you too early or before you are able to perform your job tasks. It is also crucial that you communicate all your restrictions to your employer.

One of the best moments for any workers’ compensation attorney is when a client can successfully return to work. While we understand that this goal is not always achievable, we hope to be able to help as many people as possible get there successfully.


Easy Rider: Contributory Negligence & The Motor Vehicle Collision Recovery Act of 2016

May 21, 2018 | Cameron Thompson

Picture this: it’s a sunny Monday morning in January. You wake up in your tiny Adams Morgan apartment, ready to start a new week after a busy holiday season. You need to get the morning briefing printed and on your boss’s desk, so you rush to throw on your clothes, snag a quick Greek yogurt on your way out the door and book it to the bike-share at 15th and Euclid. You hop on your mighty steed and pedal south, mentally going over the bills on the floor today and thinking about whether you will be able to make it to Franklin Hall for trivia tonight. As you come up on the intersection of 15th and U, you see you have a yellow light and pedal faster, quickly glancing at your phone to check the traffic ahead. As you cross the intersection, you are suddenly thrown from your bike by the crunching impact of a car plowing into you as it makes a left onto 15th. The last thing you hear before you black out is the siren of the ambulance on its way.

You wake up in the hospital a few hours later, IV drips hooked up to your arm. The doctor tells you that you were very lucky, as the impact with the car and the pavement didn’t seriously injure your head or neck, though your helmet was cracked in half. You did, however, sustain several broken ribs, a shattered femur and a concussion. You spend the next several days recuperating in the hospital, racking up medical bills and trying to keep abreast of the work coming in from your oh-so-helpful bosses. When you finally get out, you are told that your right leg will never be the same and that the medical bills aren’t quite covered by your insurance. You check the police report and learn that the driver of the other vehicle was cited for reckless driving. Frustrated, you find the number for driver’s insurance company and call them, only to have your claim denied. You seek out legal representation but discover that no lawyer in town will take your case. Has the world gone mad?

What the heck is contributory negligence?

You, my poor unfortunate soul, are the victim of a legal doctrine known as contributory negligence. Contributory negligence, or “contrib” as it is known in some legal circles, is an old and extremely harsh rule that once applied to all negligence claims in the District of Columbia. It is normally raised as a defense to a negligence claim and states that a person is barred from recovery if there is evidence that the plaintiff’s negligence was a substantial factor in causing the injury, even if the defendant was also negligent, so long as the plaintiff’s negligence contributed in some degree to the injury.[1] The burden rests on the defendant to prove the plaintiff’s contributory negligence, which must be done by a preponderance of the evidence (more likely than not).[2] Attorneys generally refer to this as the “1% rule”: if you, as the plaintiff, are found to have contributed even 1% to your injury, then you will be unable to recover any compensation whatsoever.[3] This doctrine frequently results in extremely harsh results for plaintiffs, particularly in the case of automobile collisions with pedestrians, cyclists and other unprotected victims.

Such collisions are not an uncommon occurrence. In 2014 alone there were 844 crashes involving people riding bicycles in the District of Columbia, with 669 of those involving injuries.[4] Many of those injured will receive little to no compensation to cover medical bills, lost wages and damages to their property. The system fails them at every level, and the contributory negligence rule is a big part of that failure.

Just Thank the British

Contributory negligence is an old doctrine with its origins, like the majority of American jurisprudence, in British common law. The doctrine was first used in the 1809 case of Butterfield v. Forrester.[5] In that case, the defendant Forrester placed a wooden pole against the road next to his house as he was repairing it. Butterfield, the plaintiff, was riding quickly down the road at around 8 p.m. and, in the twilight, did not see the pole. He struck the pole squarely and was thrown from his horse, resulting in significant injuries. At the trial, the judge instructed the jury that if someone riding with reasonable care could have avoided the pole, and if the jury found that Butterfield didn’t use reasonable care, the verdict should be for Forrester.[6] The jury found that Butterfield had not used reasonable care, and thus the doctrine of contributory negligence was born.

American law imported the contributory negligence rule along with the rest of British common law, and the majority of states in the country adhered to this doctrine for many years. However, in 1908 the U.S. Congress chose the alternative doctrine of comparative negligence when it enacted the Federal Employer’s Liability Act.[7] Comparative negligence generally requires a much greater amount of negligence on the part of the plaintiff to permit a bar on recovery. State legislative and judiciary bodies soon began to follow suit, with all but four states adopting some form of comparative negligence by the early 1990s. Unfortunately for those of us in the DMV, the five remaining holdouts are Maryland, Virginia, North Carolina, Alabama and the District of Columbia, which have all stubbornly maintained pure contributory negligence rules since the 1800s.

Last Clear Chance: A Very Small Shield Against Contributory Negligence’s Sword

The District of Columbia, unlike several of the other recalcitrant jurisdictions on this list, adds another wrinkle into the mess: the “last clear chance” doctrine. According to this doctrine, there exist certain circumstances where a plaintiff, who would otherwise be barred from recovering by contributory negligence, may recover damages.[8] In order for the doctrine to apply, the plaintiff must have been in a position of danger caused both by the defendant and the plaintiff, and the plaintiff is oblivious of the danger, or is unable to extract themselves from it.[9] While in this position, if the defendant was aware (or should have been aware) of the plaintiff’s danger and inability to rescue themselves, and the defendant fails to exercise reasonable care in avoiding injury to the plaintiff, then the plaintiff may recover despite having been contributorily negligent.[10] While this doctrine does provide a way to avoid some of the the harsh results of contributory negligence, it is a very narrow doctrine that can be difficult to apply practically in a case. 

Fisher v. Latney, a recent case from the D.C. Court of Appeals, provides a clear picture of just how narrow this doctrine can be.[11] In that case, the plaintiff was driving on a three-lane road in the far-right lane.[12] The plaintiff proceeded to change lanes from the right lane to the left lane, merging into the lane in front of the defendant’s vehicle.[13] The left bumper of the plaintiff’s vehicle collided with the front of the defendant’s vehicle and, as a result of that collision, the plaintiff was injured.[14] At trial, the plaintiff acknowledged that there was evidence that he was contributorily negligent, but asked the judge to permit the jury to find that the defendant was liable under the last clear chance doctrine.[15] The judge refused and, on appeal, the Court of Appeals upheld his decision. It explained that its reasoning in the case was twofold: first, there was no evidence that the Plaintiff was unable to save himself from the danger that he had put himself in by changing lanes suddenly; and, second, there was no evidence that the defendant was in a position to save the plaintiff, as the plaintiff’s lane change was sudden and unexpected.[16] It is reasoning like this that prevents reliance on the last clear chance doctrine from being a viable option for D.C. plaintiffs, as it doesn’t take much for a court to determine that a Defendant had no opportunity to avoid the crash and save the plaintiff.

A New Hope for Carless Washingtonians

Fortunately for those of use who ride, walk, or suffer through the endless stream of maintenance closures, mismanagement and track fires that are the D.C. Metro, the District of Columbia city government has heard the cries of the carless masses and made a significant change. On November 26, 2016, Mayor Muriel Bowser signed into law the unanimously-approved Motor Vehicle Collision Recovery Act of 2016. The Act carves out a broad exception to the rule of contributory negligence in cases involving a motor vehicle and pedestrians, bicyclists or any other non-motorized users (like skateboarders, Segway-riding tourists or people who still think hoverboards are cool[17]). This exception allows a plaintiff utilizing any non-motorized method of transportation to recover a portion of the total verdict in a case, even if they are found to have been contributorily negligent, so long as they are found to be 50% or less at fault in a collision with a motor vehicle.[18] The portion of the verdict recoverable will be equal to the amount by which the defendant is found to have been at fault in the case, so long as the plaintiff is 50% or less at fault.

So, for example, if a jury finds that an injured bicyclist was 10% negligent in an accident, that bicyclist would recover 90% of the verdict. If the bicyclist were found to be 51% at fault, however, the bicyclist would be found to be contributorily negligent and would recover nothing. This new law thus changes the way contributory negligence can be used, confining its applicability to situations where a plaintiff’s negligence is greater than the aggregated total amount of negligence of the defendant(s). It is also worth noting that the bill expressly preserved the last clear chance doctrine, allowing a contributorily negligent plaintiff to still recover if the defendant was in a position to observe the plaintiff’s danger and had the opportunity to avoid the harm. As such, the District now provides greater protections to pedestrian and bicyclist plaintiffs than Maryland or the Commonwealth of Virginia.

Let us take the case of our hapless Hill staffer from the beginning of this article as an example of this in action. In his case, the fact that he failed to remain aware of his surroundings while passing through the intersection on a yellow light and, more importantly, that he was actively looking at his phone when he was stuck, would raise significant contributory negligence concerns in the minds of any attorney considering their case. This would result in said staffer not receiving the just compensation that he would otherwise be owed and finding himself buried in medical bills. But, under the Motor Vehicle Collision Recovery Act, that same injured staffer (who, remember, was NOT faulted by the police for the crash, while the driver was charged with reckless driving) would likely have a strong case and be able to recover the compensation he is owed.

It’s Time to Update the Law

The District’s decision to make this change to the law has brought it in line with the majority of the country and does much to provide much needed protections to those in the District who are most at-risk for serious injury in a car crash: namely, those who are not protected from injury by a car. While this is a significant step in the right direction for the District, we should also encourage this city and the surrounding states to move forward from harsh, old standards and place all negligence cases under the modern rule of comparative negligence, just like the 46 other states in the U.S. Until then, the District’s many bikers, metro-riders, and pedestrians may travel with the assurance that, if they are struck by a motor vehicle in D.C., they have the best legal protection in the DMV.


[1] Sinai v. Polinger Co., 498 A.2d 520 (D.C. 1985)

[2] Aetna Casualty & Surety Co. v. Carter, 549 A.2d 1117

(D.C. 1988).

[3] Gen. Elevator Co. v. D.C., 481 A.2d 116, 119 (D.C. 1984)

[4] See DDOT Traffic Safety Statistics Report for the District of Columbia(https://ddot.dc.gov/sites/default/files/dc/sites/ddot/publication/attachments/2012-2014%20Annual%20DC%20Crash%20Analysis%20Report.pdf)

[5] Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809)

[6] Id.

[7] The Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. (1908).

[8] Andrews v. Wilkins, 934 F.2d 1267 (D.C. Cir. 1991).

[9] Id.

[10] Id.

[11] Fisher v. Latney, 146 A.3d 88 (D.C. 2016)

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] They are not.

[18] See DC Code § 50-2204.52.