Information and Insight for Injured Iowans

It can be very difficult to take care of the elderly.   Often they are fragile and have complicated medical needs and equally complicated medications.  Many are prone to falling and susceptible to serious injury or even death if they fall.   In fact, one of the leading reasons many families make the difficult choice to have a loved one place into a nursing home is because the elderly person has started falling coupled with the belief (and sales pitch) that the nursing home will help prevent falls from occurring.    And then when the falls start happening and you ask what can be done - time and time again as my clients tell me – the nursing home response is that they are “restraint free”.  

Baloney.  No nursing home that accepts Medicare (most do) is restraint free – if they accept residents that need some type of restraint then the nursing home is required by law to be  restraint appropriate and inform a Doctor and secure an order for the right restraint.  

No, restraints should not be used willy-nilly or for staff convenience but when they are necessary to meet the needs of the resident they are required.   Keep in mind there is a huge variety of “restraints” that are not the cruel, leather tie-downs you might be imagining.   Basically anything that restricts the movement of a nursing home resident is, in most circumstances, going to be considered a restraint under the law.   This means a comfortable Lazy boy in the reclined position can be a restraint, pushing a locked wheelchair up to a dining table or using a wedge cushion to prevent a resident from sliding out of a chair are restraints…etc.

Our elderly should not be subjected to death by fall because a nursing home refuses to do its job and follow the law.   Restraints should be used sparingly, correctly, and in the least restrictive manner possible but sometimes they need to be used.  Perhaps they would be less necessary if nursing homes were adequately staffed with properly trained workers but until the system changes stand up for your loved ones and require that they be safely seated – even if this requires the creative use of some form of restraint.

Somehow the powers that be in the media find time to dig up the “crazy” lawsuits and imply (or outright announce) how awful  & common such lawsuits are and how they are going to jack up your insurance rates.   Never mind the truth is that such lawsuits are as rare as the dodo bird - they are kicked out of court, settled for peanuts, appealed, and never heard from again but the media doesn’t report this as it’s not as entertaining.   On the whole, Plaintiffs’ verdicts are less common and the amounts awarded are on average lower than ever.     Never mind insurance companies are raking in record profits.

Simultaneous to the media’s so-called reporting of “crazy” cases we are inundated with auto insurance ads about how wonderful your post-accident experience will be and how great you will be taken care of by the insurance company.   This combination of messages fosters a well-designed atmosphere of compliancy.  You think everything is going to be “OK” – if Heaven forbid – you are in an auto accident.   Given the messages put out by the powers that be - it’s somewhat understandable.   But you ought to do a little research, listen to the other side and makes sure what you are being told and sold is accurate  -  before it’s too late.

If you don’t, this myth will likely be shattered only when you or a loved one are in an auto accident.    For example, right now, I’m trying to help a young, hard-working gal who was broadsided by another car.   Our potential client had a green arrow and the other guy ran a red light before he hit her.    Despite this fact,  the very large insurance company’s adjuster told our gal she was 30% at fault and therefore he would only pay her 2/3 the value of her car.    Of course, when I called the adjuster he had yet to talk to any witnesses, he hadn’t contacted the policeman who issued his insured a citation, he hadn’t looked at the intersection, taken any measurements, or done any calculations.   In any other business this would be called “not doing your job”.   Not here though because his job is to pay as little money as possible – apparently this includes the use of jumping to conclusions or just plain ol’ makin’ it up as you go along.

If the public continues to blindly accept the media’s portrayal and the insurance companies’ sales pitch then - without question - the public will continue to realize they have been had – but the realization will come too late – and only one by one after these individuals have had the misfortune to suffer an accident, after they have been taken advantage of by an unscrupulous adjuster, and before they contact one of those lawyers that file “crazy” lawsuits.   You better believe there are folks out there banking on the fact that you will keep eating the spoon-fed message, you won’t do your homework, and by the time you realize there is a problem it will be too late.  

Here in Iowa right now we have a heated gubernatorial race in full swing — and a swingin’ blows and tradin’ barbs they are.  While the strange brew of manipulation and morals common to a heated political race holds some of my interest, disappointment at the misinformation and more so at the public’s willingness to accept the propaganda causes me to typically turn away from politics.  

Now that I’m a tradesman and have been for over 10 years I might have just the beginning of learned wisdom – albeit on a limited topic.  I sue people every day.   I represent people injured by others.  It’s all I do.  I am proud of it.  I am intrigued and interested by it.  I do everything I can to learn it and learn from it.   

Admittedly, I make a living and take care of my family with my trade.  To that extent you can argue I am biased.   I fully disclosed that I would like to continue to make a living suing people - not only because it is a job I have learned how to do with some skill and not only because I enjoy it.  The primary reason why I continue to do what I do is because I am needed. 

I wouldn’t be so narcissistic to claim my job is a calling.  No, it’s much more earthly than that.  We live in a world where “big business” – i.e., the actual corporations and the more dangerous, mostly unexamined, pervasive thought process that has trickled down to our main street, our living rooms (and our jury boxes).   It is this “big business” thought process that has required my continued presence.   Innocent people are taken advantage of every day by this hurried, greedy, sloppy, and uncaring “big business” mentality.   God bless the good politicians for trying to stem the tide at the legislative level but it is at the dinner-table-take-your-kids-to-school-go-to-your-8-to-5-level that I fight this beast of mindset every day.

And here is it is – big business - manifesting itself in the Republican candidate’s announcement that we must put caps on medical malpractice claims.  According to him, your ability to see your family, your ability to walk with your loved ones, your ability to enjoy life is surely worth no more than $250,000 – even if all of these intangible losses are combined in the same unfortunate case.   Nope, it’s clear as day to him, you are worth about $250,000, period – about ½ of what the national Republican governors’ coalition gave to his campaign just this year.   

Why do we need this protection from ourselves?  Have I failed to recognize that our society has suddenly become so generous and empathetic that we cannot be fair and balanced?  Well, that’s not even the issue because if we had to talk about that we would see the truth wouldn’t we?  This legislation is simply unnecessary.  

No, the flip side of this coin is not the flip side at all.    The reason we need this limit is because apparently there are pregnant women in Iowa’s rural counties that are reduced to delivering their children in barns, backseats, etc.   I haven’t met any yet but they are allegedly there…never mind that Iowa is sliced and diced into 99 counties and in some of those counties – God forbid – you even have to drive 25 miles to get to a Wal Mart let alone a competent physician.    

On the real flip side, I have met children that have no use of their arm because some overworked, under-trained, and overzealous delivery doctor yanked so hard during the delivering process that the child’s nerves were ripped and destroyed.  Sad to say, I’ve met more than one child with a doctor-caused brachial plexus injury and they keep coming to our door   (Interestingly enough a couple generations ago, when some women were actually delivering at home in Iowa, this injury wasn’t seen.)

The truth of the matter is that medical malpractice cases in Iowa are tough.  Our firm turns down far more than we take.  I can live with that.  The truth of the matter is that the vast majority of malpractice cases are worth far less than $250,000 in the jury’s mind and verdict without any top-heavy help from the government.  I can live with that too.   The truth of the matter is that every balanced, unbiased study illuminates that the so-called medical malpractice crisis is a farce – merely more big business propaganda that has made some pretty good profits for insurance companies.    

Whoa, wait a second — the truth is something the Republican candidate cannot live with — but he’s pretty sure you can live with his misleading, misguided call for caps because you’ve been primed to take it. Years of insurance industry mistruths have you ready, willing and able to accept legislation that will take away your rights, your ability to recover fair compensation if you or your loved ones get hurt – you need to be protected from yourself.  Certainly not what our Constitution or founding fathers had in mind but the Constitution and self-governance are as far from your mind as about 8^th grade – the last time anyone scared you with the truth that we are supposed to operate with actual free will.

I’m not nearly as upset by this proposed legislation because it might impact my own business as you might think.   I am upset that almost every client I work with comes to me saying:  “I’m not the suing type, I never thought this would happen to me…”  In return, out of my learned respect for the “suing-type”, I ask every one of these clients “how many folks do you actually know that received several hundred thousand dollars for some fake injury or junk lawsuit?”   I have yet to meet a single person that personally knows of such a plaintiff.   They do not exist in the hoards or masses claimed by the politicians and insurance industry.  

Now ask these same folks: “How many people do you know, including yourself that has been hurt by the negligence of others?  Was that lost limb, life or joy worth less than $250,000?   Would you do it all again for $250,000?” 

Well, get ready — because if you let big business and insurance know that they can limit their losses to the tune of $250,000 and more importantly further ingrain the idea that such limits are necessary – more and more folks are gonna get injured and more and more folks are gonna come here asking the same questions but my answer is going to be different: “I cannot help you. It costs too much and the risk is too great to justify the potential benefit.”   Even before you have the chance to share your experience, seek fair justice, the battle will be lost and the insurance industry will have won.   

These caps aren’t designed to reasonably limit awards.  They are designed to foster unwarranted fears and keep you from even trying.  For just one moment, stop accepting what you are being sold, from them, from me, and actually exercise your freedom to study this issue.  After taking a look at the facts I hope you will find that what I have shared is a truth.  It’s one I know not because I want to keep suing people but because I have to.     

I read an obituary the other day; another biker down – at age 36.  The related article detailing the accident made it clear that the motorcycle had the right-of-way and once again a car negligently invaded the biker’s space and now a young, family man is dead. 

We all hear the argument (and it’s getting louder and louder as the insurance industry revs up for another mandatory helmet law crusade):  “motorcycles are dangerous”.    This mantra is really the insurance industry’s crafty way of saying:  “they asked for it”.   You better believe they try to sell this to the juries.  They are smart and do so with subtle, careful words built upon prejudice and propaganda against bikers.   

You have to admit, if a bike goes down the question isn’t:  “are they hurt?”  - rather, the question is “how bad are they hurt?”   But this does not mean that bikers are huge risk takers or that they are assuming and accepting the risk of bad drivers that might be out and about at the same time.   A biker’s choice to cruise the road is not an invitation to run them off of that road.    Most bikers I know and represent simply want to go from Point A to Point B safely and with the freedom and enjoyment only a motorcycle can deliver.  They follow the rules of the road getting there.  If cars and trucks were respectful of other all vehicle’s right-of-way (including motorcycles) so many tragedies could be avoided.    

Some folks drive cars without airbags.  I’ve seen some cars that are held together with coat hangers and a prayer. There are other cars that weigh only as much as a full dressed hog…yet, nobody argues that because these drivers are in vehicles that are more likely to result in harm to the passengers, in the event of an accident, that “they asked for it”.

I just settled a case in which a tractor trailer turned left in front of my biker client.   His head hit the last set of trailer wheels.  He died instantly upon impact but the loss will remain forever.  He was simply going to work – been riding bikes for 20 years. We’ll never know if he would have survived or in what condition if he had been in a car.   But this “what-if” shouldn’t matter.  What matters is that he did nothing wrong and his surviving family deserves fair compensation without any discount just because he was on a motorcycle.

So, if you find yourself adopting the insurance industry mantra, and repeating: “motorcycles are dangerous”  please take a moment to remind yourself – often it’s not the bike, it’s the other vehicles on the road that are dangerous.