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The Defendant is the Insurance Company -Hiding Behind the At Fault Party

The more I practice law and take cases to trial, the more I am amazed that the general population thinks the case is truly against the Defendant with no insurance since an insurance company is not also named. Guess, what? You can not mention insurance in a trial. You focus on who or what did something wrong and as a result of them doing something wrong what damages have you incurred. Sure the insurance company is paying for that Defendant’s attorney 9 out of 10 times or it could even be your insurance company providing a defense to the other side for harming you, ie uninsured & underinsured coverage. Imagine getting struck by some reckless and careless uninsured drunk or underinsured driver with your whole family in the vehicle only to find out they have no assets, minimal coverage that will never make you whole or no insurance coverage at all. Well guess whose insurance company will provide them a defense against paying you full compensation in trial, stand up and poke holes in your case/life, and sit at the table with the drunk? In some scenarios your hard earned premiums paid to your insurance company is paying for that idiot’s defense against you. The good news is that at least it allows you to recover more than being dependent upon the drunk idiot and their personal coverages or assets.

One of my recent trials in Anderson County, involved a scenario of what happens when you have underinsured (UIM) coverage on your vehicle, along with behind the scenes negotiations. The at fault driver had $50,000/$100,000 in coverage which was a step above minimal coverage in South Carolina. It was a significant t-bone type collision with a litany of diagnostic testing at the ER that same day that all came back normal, thankfully. My client continued to have pains and followed up with orthopedic visits and PT but no definitive injury was diagnosed or could be pointed to with an MRI exam. The client continued to live their life with some modifications and inconveniences and that was the driving force in them wanting to have their day in court. However, the jury never knew we took the guaranteed money from the at fault driver during the mandatory mediation and therefore the client’s own insurance company fought against her and appeared to represent the Defendant during trial. To collect additional monies from her underinsured coverage, we would have to get a verdict over and above $50,000.00. After a hard fought battle stressing the human losses of my client on top of the significant collision and trauma, combated with the defense attorney stressing no actual injury, gaps in treatment, social media photos of my client doing activities that appeared to not limit her in anyway, the unanimous verdict came back at $50,000.00. We had hinted around at $125,000.00 but based on some juror feedback post trial, the female jurors thought my client’s legs were too toned to be that out of shape or without activity. Some of the men on the jury were willing to give the $125,000 but did not fight hard against the other jurors in the deliberation room that lowered the value. How they came to exactly $50,000.00 without knowing all the details outlined above, is amazing and ironic. Normally any verdict above the past medical bills submitted in conservative upstate, South Carolina venues is a win. However, to get that “good” of a verdict and collect nothing further was hard for both my client and myself. The flip side of those thoughts and feelings is in reality we had already collected money and been paid. Like athletic coaching, law can be the same, “What have you done for me lately?”, mentality when it comes to new money on cases or new cases with new facts being judged on past results & past facts.

Regardless of the behind the scenes actions, negotiations, or settlements, if you are a juror the main focus is what evidence and testimony can be presented to you during trial, coupled with the law the judge charges you with. Don’t come back and ask about things you never heard mentioned in trial but know to be true (Yes, there is an accident report from most wrecks but it is no admissible evidence. Yes, there is insurance and we cannot tell you how much, if any, has already been paid). If you saw how thick the books on Evidence and Civil Procedure are in law school you would appreciate that all those facts were able to be presented to you in such a timely and orderly manner. Of course we are fighting to get you more information and testimony during those breaks when you leave the room. Then again, sometimes the Judge, Clerk, court reporter or attorneys are tardy or just telling stories of the “Good ol Days”.

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Saturday, June 17, 1995 & Living the Dream

On Saturday, June 17, 1995, I had just returned from an up & down week at South Carolina’s Palmetto Boys State, sponsored by the American Legion. It was up & down due to the weird things going on with my body that just didn’t seem normal-night sweats, back pains, inability to use the bathroom at times, throwing up after I ate, & being really tired participating in sports activities throughout the week.

I vaguely remember explaining to my mother, an ER nurse of a decade or more, my symptoms on the ride home to Prosperity, SC. As soon as I got home, I  remember still being excited to head out on Lake Murray for a day of water skiing, cooking out, and just being on the lake. Back then I was in shape and had pretty hard stomach muscles, so like any dumb teenager, I didnt mind having those muscles tested with a gut shot, or punch. My aunt was at our house that day when we got home en route to the lake and unfortunately for her she was the one that played around with me to provide that gut shot to the stomach…I can never forget that punch. It wasn’t because she really hit me hard or hit me when I wasnt expecting it. It was because when she did playfully hit me, it almost caused me to fall down and start throwing up it hurt so bad.

Twenty-one (21) years ago as I sit here typing this, I can still see the scene:

I was standing right outside the white linoleum kitchen flooring, on the light brown carpeting in front of my mother’s decorative bench that sat under the four pane, mirrored decorative piece hanging above it. I was facing towards the side door that lead to the garage and Aunt Mary Kay was bouncing around playfully like a boxer, but unlike a real boxer, she was wearing a black bathing suit with white highlights, while our kitchen table was to my left. She playfully struck with her left hand and then more sternly with her right hand.  Now I recognize the awkward looks between the parental figures, after seeing my animated reaction to such a light &  playful interaction.

My mother decided to let the rest of the family head on to the lake but maybe my complaints of fatigue should just be checked out real quick at the hospital where she worked, Lexington Medical Center. She drove her gray, Mazda 626 with gray cloth seats on a bright, sunny day towards Columbia and tried to console me that this was no big deal, I was fine. ( I realize now she was really trying to calm herself down-she later revealed to me she thought I had mono.)

When we got to the hospital, we were provided professional courtesies for her many years working in the ER and I went straight back to a private waiting area. A nice phlebotomist, a heavier, set black male, who apparently had won the respect of my mother as a “1 sticker” drew blood for lab work. (I write this narrative for medicinal value so I can help open long vaulted compartments in my psyche, so no wonder I am having some manifestations of those emotions right now as I type, aka crying.).

I didnt realize what was going on at the time but I did recognize my mother’s voice in what seemed to turn from surprise, then to aggressiveness in demanding tests be run again as she talked with her colleagues at a nearby nurses station. The phlebotomist came in again and drew more blood work and did so calm as a cucumber indicating another test needed to be run. Shortly thereafter is the scream I can hardly forget from my mother and then her wailing. I started to get nervous at that point as my mother was a pretty stern lady, that showed emotion when needed but to cry openly in her comfort zone and in front of her colleagues kind of scared me. That was not normal & apparently as time would tell, neither was my blood work. My white blood cell count was over 150,000 with normal ranging from 3,500-10,500.

My private waiting area was quickly transformed as I was asked to go change into a gown all the while not knowing what was going on. That was the part I hated the most looking back. Nobody would tell me what was going on. I was no idiot and at the very least, knew if my lake day was about to be ruined and my mother was screaming, something had to be wrong. Plus,I was the only one getting medical work performed upon.

As I got my own private room at this point, I will ever forget that coy, son of bitch, white haired doctor whose name started with an “M”. He acted like I was interrupting his day, laughed and was joking around. Again, I still had not clue what was going on. He indicated he just had to take a sample real quick. Then he proceeded to take a bone marrow aspiration from me without any anesthesia other than some lidocaine to the skin. That extraction device he screwed into my hip is  probably not nearly as medieval as I remember but I will never forget him stopping in the middle of screwing that device into my hip bone & saying, “Son, you have some strong bones.” Then he proceeded to twist harder into my hip. To this day it is the worst pain I have ever felt in my life.

Fittingly, understandably, and realistically, that is where my memories of today, 21 years ago stop.  I was ultimately diagnosed with Acute lymphocytic leukemia (ALL), and later told of my two week prognosis. I remember snipets of the days and weeks that followed. More importantly, I remember the love and outpouring support from my family, friends, my church, and my community. I will forever be indebted to them all.

God is good, life is good, and we can only make the most with what we are given. I hope you all take advantage of the opportunities and wonders given to you every day. Now you know why I say:

I AM LIVING THE DREAM!

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Tort Reform Results: Higher Insurance Profits, Lower Patient Safety Initiatives & Higher Med Mal Premiums for Doctors

A recent Forbes article written by Steve Cohen entitled, “On Tort Reform, It’s Time to Declare Victory and Withdraw“, debunks the myths set forth many years ago when the catchy phrased initiative first started. Given the many states that have passed those “reforms”, aka insurance company dream goals to make more money, quantitative information is available to actually measure results. Since many of you went along hook line and sinker, let’s see what you have done to yourselves. Drum roll please….

  • FALSE: ER doctors had a fear of malpractice lawsuits and thus ordered unnecessary care causing wasteful healthcare spending and costing us all. With tort reform in place, ER doctors have notstopped ordering unnecessary care and raising healthcare costs.

This Forbes article sites an investigating in The New England Journal of Medicine entitled, “The Effect of Malpractice Reform on Emergency Department Care” which determined:

BACKGROUND

Many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending. Emergency physicians practice in an information-poor, resource-rich environment that may lend itself to costly defensive practice. Three states, Texas (in 2003), Georgia (in 2005), and South Carolina (in 2005), enacted legislation that changed the malpractice standard for emergency care to gross negligence. We investigated whether these substantial reforms changed practice

RESULTS

For eight of the nine state–outcome combinations tested, no policy-attributable reduction in the intensity of care was detected. We found no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina.

Mr. Cohen goes on to write that:

This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent. 

  • FALSE: Medical malpractice premiums will be lower for doctors with reform in place as insurance companies will pass along the savings. HAH! As a lawyerworking against insurance companies,we all knew this was a scam but it was still shocking how many people believed it.

 

While insurance premiums haven’t gone down, their price increases in tort reform states have gone up a little slower than in non-reform states – the lag is between 6% and 13%.  That hasn’t constrained the insurance industry from showing record profits.   Average returns for malpractice carriers hover around 15.6%, far better than the 12.5% for the property/casualty segment. And the malpractice insurers’ loss ratio – the percentage of claims to premiums — is a remarkably low 61.1%.

 

In 1999 the Institute of Medicine at the U.S. National Academy of Sciences published its seminal study,”To Err is Human”,  which concluded that between 44,000 and 98,000 patients are killed (and many more injured) in hospitals each year due to medical errors. That number – which is more than automobile and workplace accidents combined – doesn’t include deaths in doctors’ offices or clinics – such as the one where Joan Rivers recently died.  By 2011, a study in “HealthAffairs”  estimated the number of avoidable deaths was probably closer to one million.

It’s unfortunate that so many Americans were duped by the evil insurance companies but there is still hope for change. Remind your legislative representatives that these myths have been debunked and tort reform is never a good idea.

The judicial system is in place for a reason and that is to allow a jury of your peers to hear the facts and evidence presented by our rules and make the most informed decision.

Trammell & Mills Law Firm, LLC does not handle medical malpractice cases but we know several good law firms in the area that do, if you need assistance. However, we can not stand to see Americans constantly steam rolled by insurance propaganda. Start educating yourselves on the facts, not on the fluff and feel good.

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Lawyers Fight for America’s Founding Principles

GUEST POST by J. Calhoun Watson of Sowell Gray 

The Fourth of July is a good time to remember our nation’s dedication to the rule of law and to celebrate this principle that sets us apart from many other countries.

Two hundred thirty-eight years ago, the Declaration of Independence charged the king of England with depriving the colonists of their right to a trial by jury. Because America’s founders believed serving on a jury and testifying in court were essential responsibilities of being a citizen, they were willing to wage war to stand up for this right.

Throughout history, lawyers have fought to uphold the rule of law in our nation’s most defining moments: drafting the Declaration of Independence and the Constitution, crafting the Emancipation Proclamation and ending the Civil War, creating the New Deal to pull America out of the Great Depression and supporting the Civil Rights movement.

Still today, the rule of law is essential to our freedoms. The rule of law describes a system based on fair, publicized, easily understood and stable laws enforced by knowledgeable judges. Although Americans often take these rights and privileges for granted, we must always remember that our liberties, rights and way of life would be in great jeopardy without the rule of law. In many parts of the world, these rights are just a dream.

There always will be people who do not agree with a judge’s ruling and who criticize the lawyers who defend the accused. The fact is that under the American judicial system, anyone charged with a crime is innocent until proven guilty: It is the defense attorney’s job to ensure his or her client has a fair trial, the prosecutor’s responsibility to present evidence to the court on behalf of the state, and the judge’s responsibility to rule based on the facts presented. This system is the very cornerstone of our founders’ vision. As Americans, we should share the same passion and commitment today as our founders 238 years ago.

In some cases, the system our founders envisioned is not fully accessible. I am very proud that S.C. lawyers are dedicated to advancing justice and ensuring that the civil legal system is available to all our citizens. Many lawyers choose this profession because they believe in the American legal system and want to make a difference in the lives of those they represent. It is important that we stand up for everyone’s access to the privileges of our system.

Thanks to many lawyers serving as volunteers, the S.C. Bar offers programs to provide legal representation and advice to those who cannot easily access or afford it. We sponsor free legal clinics and Ask-A-Lawyer phone banks and web chats. We also help provide wills to first-response personnel and Habitat for Humanity homeownerseducate at-risk high school students on criminal law and the consequences of their choices; educate the public about adoption and foster care; and teach students about civic responsibility. For information, please visit scbar.org or call (803) 799-6653.

As we spend time this weekend with family and friends and give thanks for this beautiful nation, let us honor one of the defining principles of this nation’s founding — celebrating our legal rights, access to a fair and balanced justice system and the commitment of this state and nation to upholding the rule of law for all citizens.

Printed July 3, 2014 in “The State” as:

Watson: Lawyers fight for America’s founding principles

ABOUT THE AUTHOR:

Cal, a native of Bamberg, South Carolina, is a graduate of Wofford College and the University of South Carolina School of Law. He is also President of the South Carolina Bar and the former President of Historic Columbia.

E cwatson@sowellgray.com

P (803) 231-7839

F (803) 231-7889

 

Admissions

South Carolina Bar

U.S. District Court for the District of South Carolina

U.S. Court of Appeals for the Fourth Circuit

Education

Wofford College, B.A., summa cum laude, 1984

– Phi Beta Kappa

– President of the Student Body

University of South Carolina School of Law, J.D., cum laude, 1987

– Order of the Coif

– Order of Wig and Robe

– Student Works Editor of the South Carolina Law Review

– Legal Writing Instructor, 1986-1987

Associations

International Association of Defense Counsel (Technology Chair, 2010-2012), Business Litigation, Professional Liability, and Trial Tactics Committees and Social Media Task Force (Chair)

Richland County Bar Association

American Bar Association

John Belton O’Neall Inn of Court (President, 2010-2011)

South Carolina Defense Trial Attorneys’ Association

Defense Research Institute

Certified South Carolina Circuit Court Mediator

Judicial Clerkships

Honorable Robert F. Chapman, Judge, United States Court of Appeals for the Fourth Circuit

Offices

Fellow, American Bar Foundation

Fellow, Litigation Counsel of America

President, South Carolina Bar (2014-2015), President-Elect (2013-2014), Treasurer (2012-2013), Secretary (2011-2012)

President, John Belton O’Neall Inn of Court (2010-2011)

South Carolina Bar Board of Governors (1997-2000, 2009-present)

South Carolina Bar House of Delegates (1997-present)

Access to Justice Commission (2006-present)

President, South Carolina Bar Foundation (2006-2007)

Editorial Board of South Carolina Lawyer Magazine (2000-2007)

President, Young Lawyers Division of the South Carolina Bar (1997-1998)

Honors & Awards

Best Lawyers in America (Woodward/White, 2008-2014), Commercial Litigation

Best Lawyers in America (Woodward/White, 2008-2014), Professional Malpractice Law, Defendants

Best Lawyers in America (Woodward/White, 2010-2014),  Bet-the-Company Litigation

South Carolina “Super Lawyer” Business Litigation (2008-2014)

South Carolina “Super Lawyer” Professional Liability Defense (2010-2012)

Chambers U.S.A. America’s Leading Lawyers for Business (2009-2014)

Selected as a Top Rated Lawyer in Commercial Litigation by Litigation Special Report (2012)

Recipient, Innovative Leadership Award, Historic Columbia (2010)

Recipient, Compleat Lawyer Award Silver Medallion, USC Law School Alumni Association (2001)

Community Involvement

President, Historic Columbia Foundation (2007-2009)

President, Wofford College National Alumni Association (2000)

Wofford College Parents Advisory Council (2012-2013)

AC Flora PTSO (Co-President, 2011-2012)

 

 

 

Read more here: http://www.thestate.com/2014/07/03/3544531/watson-lawyers-fight-for-americas.html?sp=/99/168#storylink=cpy

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