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The Pivotal Law Blog

"What is My Personal Injury Claim Worth?"

Posted Thursday, November 12, 2009 by Christopher L. Thayer

This is probably the #1 question I get asked by my personal injury clients. The short answer: “It depends”. But, most clients or prospective clients don’t want to hear that, so I always take some time to explain what factors affect the value of their claim and how insurance adjusters view the process.

In Washington, a person with a personal injury claim, is entitled to recover two broad categories of damages: special damages and general damages. Special damages, also known as economic damages, are damages that are subject to precise calculation, such as medical expenses (must be “reasonable, related and necessary” to treat injuries/symptoms caused by the accident), future medical expenses (confirmed to be required by a healthcare provider), lost income or wages, lost future income (if any due to full or partial disability caused by injuries in the accident), and other costs and expenses that are subject to ready calculation. A good resource on this issue is to look at the Washington Pattern Jury Instructions (WPI). A free link to these can be found here.

alt textGeneral (or sometimes referred to as noneconomic) damages are defined as: “subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.” RCW 4.56.250.

The tough part is how to calculate what constitutes fair compensation for general damages? Again, “that depends”. These days, most insurance companies have software that they rely on to calculate what they think is fair. This software is proprietary, but based on practice and experience, I have a pretty good idea of what data goes into the software at least – we just don’t know how in the world they come up with their calculations. And it is good to remember that the amount of damages an insurance company thinks you are entitled to based on some software program is not dispositive. You always have the right to file a personal injury lawsuit and let a jury or arbitrator decide what is fair. In my experience, several factors come into play in determining what constitutes fair compensation for general damages: nature and severity of injuries, the severity of symptoms (e.g., pain scale ranking of 1-10 is a common measure), the degree to which the injuries and symptoms impacted the client’s life as shown by objective evidence, and the degree to which any of the injuries or symptoms are permanent and may require future medical treatment. There are other considerations, which I don’t want to discuss in this forum, but these are the most significant factors in my experience.

So, what does this mean? Each personal injury case has to be assessed individually. You can’t just plug in numbers and come up with a precised calculation – notwithstanding that is what insurance companies do.

For more information, please contact Christopher Thayer at 206-805-1494.

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Washington Supreme Court throws out medical malpractice law

Posted Thursday, September 17, 2009 by Christopher L. Thayer

alt textThe Washington Supreme Court issued a decision invalidating the requirements of RCW 7.70.150, declaring it unconstitutional. Under RCW 7.70.150, a patient who believed that they might be the victim of medical malpractice as a result of the breach of the standard of care, was required to obtain “Certificate of Merit” from a qualified expert prior to filing suit. Prior to filing a lawsuit it normally impossible to obtain information that is not included in the patient’s medical records, which might help prove a malpractice case. For example, hospital policy and procedure manuals can’t normally be obtained without filing suit. As a result, it is not uncommon to have situations where you suspect that there was medical malpractice but, absent the tools provided by an actual lawsuit to force the production of certain information, patients were kept out of the court room. After this decision, it will be easier for patient who have been the victim of medical malpractice in Washington State to investigate and pursue their claims.

The Seattle Times’ story about this decision can be found here.

And a link to the actual opinion can be found here:

For more information, please contact Christopher Thayer at 206-805-1494.

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How to Search for Disciplinary Actions Against a Doctor or Other Healthcare Provider in Washington

Posted Monday, July 20, 2009 by Christopher L. Thayer

alt textIn Washington State, the Department of Health regulates physicians, pharmacists and certain other healthcare providers. This includes potential disciplinary actions for misconduct. Some of this information is public record and searchable in an online database. Please visit the following link and follow the drop-down menus to search for a doctor or healthcare provider. Just because there has been a finding entered against a healthcare provider does not necessarily mean that they have committed medical malpractice, although it can serve as a red flag and provide helpful information.

Link: Provider Credential Search, Washington Department of Health

For more information, please contact Christopher Thayer at 206-805-1494.

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Comments from the American Medical Association on National Practioner Data Bank

Posted Wednesday, July 8, 2009 by Christopher L. Thayer

alt textI recently discovered this link on the American Medical Association’s (AMA) website and found it interesting.

The National Practitioner’s Data Bank (NPDB) is a national database that is maintained for all physicians licensed in the U.S. It requires physicians, dentists and certain other healthcare practitioners to report any settlement payments or verdicts on medical malpractice claims. Claims reported on this database can have adverse effects on a physician’s licensure and can affect malpractice insurance premiums. An unintended result of this database is that it often poses an obstacle to settling modest legitimate medical malpractice cases: because the healthcare provider doesn’t want the payment reported to the NPDB. This is further complicated by the fact that many insurance policies for physicians have a “consent to settle” provision, which provides that the insured physician has to consent (agree) to any proposed settlement. It is not uncommon to have the physician’s attorney and insurance adjuster recommending settlement, but the physician will refuse because they want to avoid getting reported on this database. This is just one more challenge you face when trying to pursue a medical malpractice action. Rather telling is this header on the AMA’s site, which states:

How to evade a report to the NPDB or ensure that the information in the report is accurate

My question: How many patients know that their doctor is being advised by the AMA on how to “evade” reporting medical malpractice claims? Food for thought.

For more information, please contact Christopher Thayer at 206-805-1494.

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What You Can Do If You Receive an NSF Check

Posted Sunday, June 21, 2009 by Christopher L. Thayer

alt textDuring these difficult economic times you may be facing some unique challenges in your business as many companies and individuals suffer through a downturn in business. Many businesses are experiencing an increase in the number or volume of checks that are being returned “N.S.F.” (insufficient funds) or “bounced” by their customers. This post is to provide you with one small tool to help you collect on these accounts and to (hopefully) increase the likelihood that you will get paid. If you follow these procedures, it will provide you with additional leverage in the effort to collect on outstanding accounts receivable.

If you receive payment by check and that check is returned for insufficient funds, here are the issues to consider and the steps to follow to protect your rights:

  1. The check must not be the subject of a “justifiable stop payment order”. An example of a “justifiable stop payment order” would be where the person or business who signed the check has contacted their bank and asked that the check not be honored because of a dispute about he amount owing. If the drawer has a “justifiable” reason for placing a stop order on the check, then the following provisions do not apply. If you have any questions about this issue, please feel free to give me a call before sending out a notice.
  2. Execute a Notice of Dishonor form to be mailed to the drawer’s last known address. Mail two copies of this form to the drawor (person who wrote/signed check): one by regular mail and one by certified mail (return receipt requested). The statute does not require certified mail but I believe this is a good idea and can lay to rest any notice issues that might be raised by the drawer in the event of a subsequent collection. The contents of the form is proscribed by statute, which you can find here:http://apps.leg.wa.gov/RCW/default.aspx?cite=62A.3-520.
  3. Retain the original check for your records – until payment is made or the dispute is resolve. If a lawsuit is required, you may need to submit the original check into evidence.
  4. If the check is paid within 15 days of the date the Notice of Dishonor is mailed (postmarked), you are entitle to recover the face amount of the check, plus a “reasonable handling fee”, which is usually deemed to be $20.00.
  5. If the check is not paid within 15 days of the date the Notice of Dishonor is sent (post marked date), then you will be entitled to recover the following relief: 12% interest on the face amount of the check from the date of dishonor until paid, a “reasonable handling fee” (again, about $20.00 is typical), plus “collection costs” of up to $40.00 or the face amount of the check, whichever is less.
  6. If, after expiration of the 15 day period payment has not been made, you have the right to commence a lawsuit. In the event of such suit, you are entitled to recover all of the damages above. In addition, you will be entitled to an award of reasonable attorneys’ fees, court costs (filing fee and service of process), plus three times the face value of the check or $300.00 (whichever is less).
  7. This procedure is most useful in situations where you do not have a contractual relationship with the person or business who is writing the check to you. If you have a contract, which includes a provision for an award of attorneys’ fees and collection costs in the event of a default in payment, this procedure may not be all that helpful as the contract will give you the leverage you need. However, even where you do have a contract with the client or customer, it is an easy procedure to follow and getting an official “Notice of Dishonor” form sometimes helps prompt payment.

This procedure must be followed precisely in order to be effective. If you have any questions on how to pursue a claim on a dishonored check in Washington, feel free to contact me.

This post is being provided for information purposes only and should not be construed under any circumstances as legal advice. It does not create an attorney client relationship. If you have a situation that warrants legal advice, you should contact a local experienced attorney to review your circumstances.

For more information, please contact Christopher Thayer at 206-805-1494.

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DISCLAIMER: This blog is not legal advice. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice under any circumstances, nor should it be construed as creating an attorney-client relationship. The information on this blog is a general statement of the law and may not be up to date, accurate or applicable to your specific circumstances. Prior success in litigation is not an indication of future results; each case is unique and past results cannot predict future outcomes.

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