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Thursday, September 09, 2010
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| The Plaintiff's Personal Injury Action
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 The Plaintiff’s Personal Injury Action in New York State
KEY BENEFITS
The New York State Bar Association has created the most up-to-date, focused
and comprehensive review of the plaintiff's personal injury practice in a two volume.
This treatise answers the tough questions faced by the plaintiff's personal injury attorney every day - including wrongful death.
New York's most experienced personal injury lawyers and nationally recognized experts,
teach cutting-edge skills from mass torts to medical malpractice to airplane crashes and rail road accidents.
Enhance the substantive knowledge and trial skills plaintiff’s per sonal injury attorney in New York
Learn the basics, including retaining a client through substan tive law of plaintiff’s personal injury, evidence, trial themes, and appeal
Master related issues in personal injury actions, including needs trusts, structured settlements, Medicare and health insur ance subrogation and bankruptcy
The New York State Bar Association has created the most up-to-date, focused and comprehensive review of the plaintiff’s personal injury practice in New York.
The result is 43 chapters in nine topic areas. Written by some of New York’s most experienced personal injury lawyers and nationally recognized experts, they provide cutting-edge skills for the practicing trial lawyer, while also laying out the most current substantive law— from medical malpractice to mass torts.
This treatise also contains a law practice management chapter—a key requirement for today’s overbooked practitioner.
This is a must-have publication for every attorney practicing personal injury law for the plaintiff.
Volume One
Section I — Ethics
Section II — Substantive Law
Section III — Clients with Differing Causes of Action and Needs
Section IV — Starting the Action And Discovery
Volume Two
Section V — Litigating the Personal Injury Action in Different Forums
Section VI — Managing Client Obligations and Settlements
Section VII — Preparing for Trial
Section VIII — Trial
Section IX — Law Practice Management for the Personal Injury Attorney
EDITOR-IN-CHIEF
Patrick J. Higgins, Esq., Powers & Santola, LLP, Albany, NY
AUTHOR OF TWO CHAPTERS J. Michael Hayes, Esq., Buffalo, NY
INFO & PRICING
PN: 4181 | 2008 | 1,734 pages | looseleaf | 2 volumes
NYSBA Members $175 Non-Members $225
Click here for more info and to order
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J. Michael Hayes is the author of Liens vs. Subrogation. This is the book that lawyers use to help them force "lien" holders into recovering their own claims of subrogation. It demonstrates how to speed up resolution, simplify and eliminate hastles and delays caused by Medicare's "Super" Lien, Medicaid as well as other types of "liens" on plaintiffs recoveries. This is an evolving and contentious area of the law that impacts almost all personal injury cases. The goal of the attorney is to both maximize and expedite his client’s recovery while simultaneously protecting himself from claims, sometime years later, of failing to satisfy a “lien”
Practitioners may contact Mr. Hayes or his office to order copies of this work. Read Index...
What is a Lien? A lien is an encumbrance on your claim that must be satisfied or paid out of any recovery you receive .
What is a “Right of Subrogation”? Insurance companies are entitled to recover monies they pay you if those payments were occasioned by someone else’s fault. For example, where you are paid for collision damage to your vehicle by your insurance carrier, they may “step into your shoes” and make a claim against the negligent party for the monies they paid out to you.
Basic No Fault: Generally, there is no right of recovery by the insurer for no fault benefits up to $50,000 paid on your behalf.
Additional Personal Injury Protection: Where no-fault payments are in excess of $50,000 and are made pursuant to additional coverage in your automobile policy which you have to purchase separately, your carrier has an APIP “right of subrogation” as to the amounts paid against the “at fault” driver. This is not a right of action that your attorney should pursue. It could create a conflict of interests.
Workers’ Compensation: Amounts paid by Worker’s Compensation may not constitute a lien. The Workers’ Compensation Law 29(1) is entitled “Subrogation”. The statute “deems” that any litigation by an injured party is first to recoup medical expenses and wages that were paid by the carrier. The rational of Ahlborn (see: Medicaid) may apply and mitigate against this claim constituting a lien. Upon appropriate pleading of the case, the Worker’s Compensation carrier may only have the right to intervene or pursue their own claim independently. There may be no lien here. Generally, Workers’ Compensation paid “in lieu of” no-fault benefits, up to $50,000, does not result in a lien. However, where the Worker’s Compensation carrier is out of State, then that foreign state’s recovery laws may apply and there may not be a set off for the first $50,000. Regardless, that claim still should be for "subrogation".
Health Care Providers: Health care providers have a right of subrogation to recover the amounts they have paid. Some insurance companies are writing policies to say they have a “lien”. Some have provisions that they must be fully repaid before the injured claimant may recover anything for his/her personal injuries. Each private health policy must be reviewed before consent to repayment is made. The right of subrogation by health care providers is permitted only in the Fourth Department (Western New York). The other three Departments do not recognize these rights. The issue is going to the Court of Appeals by leave granted April 14, 2008. However, it seems well recognized that these providers only have a right of subrogation. If there is no claim for medical expenses in the lawsuit, then there should be no “equitable lien” upon resolution and all the settlement go to the client.
Medicaid: Medicaid is only a right of subrogation. So holds the June, 2006 US Supreme Court case ADHD v Alborn. Provided the injured party does not recover medical expenses paid by another provider, such as Medicaid, there is no lien! The entire recovery may go to your client.
Medicare: The federal enabling statute literally provides that Medicare is a right of subrogation. It is not a lien. If the claimant recovers and collects Medicare’s money, then an “equitable lien” is created. In the absence of that factor, no money should have to be repaid to Medicare out of the personal injury settlement or verdict.
Solutions / Approaches: Each case and settlement must be considered and approached carefully and knowledgeably. The attorney for the injured claimant should never represent both the health care provider, Medicaid, Medicare or Workers' Compensation and the personal injury client at the same time. Where coverage is limited, there may be a conflict and joint representation would be an ethical violation. In instances of inadequate insurance coverage, at the time the action between the injured party and the “at fault” party is settled, subrogation claims may not be resolved at the same time. In such instances it is imperative that Releases include a reservation of the rights of subrogation for the insurer.
List Price: $175.00
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| NEW YORK MOTOR VEHICLE ACCIDENTS
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New York Motor Vehicle Accidents
by Gary B. Pillersdorf, John Scarzafava and J. Michael Hayes
Efficient Settlements in NY Auto Accident Claims
In today’s tough settlement climate, it is important to employ every effective tactic for increasing auto settlements and verdicts.
Now you can buy a whole book full of settlement-enhancing tools and techniques – including how to maximize damages. New York Motor Vehicle Accidents shows you how to get the most for your auto clients:
- The best investigatory tool an auto accident lawyer can use. Section 1.190
- Why you should use a modified hospital authorization form. Section 1.250
- Profitability rules of thumb for small cases. Section 4.20
- Your best bet for a lead witness. Section 11.10
- What to look for in emergency room records and hospital bills. Section 12.11
- Statements to always include on your authorizations. Section 14.70
- When to name a non-owner driver as an individual defendant. Section 20.10
- Combating the powerful seat belt defense. Section 3.230
- The best types of "moaner and groaner" witnesses. Section 22.186
- Using "pulling power" to emphasize an important exhibit. Section 22.242.10
- Cross-examining defense doctors. Section 22.271.11
- How to reduce settlement liens. Section 22.32.10
New York Motor Vehicle Accidents has page after page of sample reports and tips for efficiently acquiring them. Admissibility is discussed, complete with citations and usual outcome. The authors cover: police accident reports, emergency room and hospital admission records, ambulance call records, AIS Squad records and photos, vehicle ownership information from the DMV, prior criminal records, drivers' operating records.
The book also offers guidance through difficult situations, including:
- Proving loss of income for self-employed plaintiffs
- Artfully disclosing unreported income
- Handling pre-existing conditions
- Representing illegal alien plaintiffs
- Workers' compensation
- Creative coverage avenues to supplement low policy limits
- Bad faith letters to uncooperative adjusters
- How to combat common defenses
New York Motor Vehicle Accidents is loaded with more than 115 checklists, motions, document requests, letters, charts, discovery questions and more, all of which are also included on the free CD-ROM. These are the same expertly-drafted forms that the authors have used to win their six and seven figure settlements and verdicts. Use them to lift your performance level, trim case processing time, and delegate more to your assistants. Some examples are:
- Basic write-up kit includes retainer agreement, notice of intention to make claim (MVAIC or UM carrier, notice of claim against a municipality, no-fault form, restrictive authorizations (hospital, medical, work record), and MV104 accident reporting form. Section 1.230
- Pattern jury instructions to determine the elements to be proved. All the relevant instructions (PJ1 2.75-88) are included and discussed. Chapters 3 & 5
- Auto liability checklist will speed the investigation process. Attach one to every new file. Section 10.60
- Investment cost estimation charts predict hours, disbursements, and trial preparation fees by stage of litigation to help you assess profitability. Section 720
- Checklist for investigating the defendant's expert. Both common and little-used sources are provided for this crucial task. Section 16.20
- Plaintiff's combined discovery demands. Discoverability, case authority, and objections to defendant's demands are included in the accompanying discussion. Section 16.150
- Deposition question checklists. Specific to type of case and party, these artfully drafted questions showcase the authors' expertise. Section 18.120
As motor vehicle cases grow more sophisticated, the cost to bring them has increased. Simultaneously, insurers and juries have toughened their stances against plaintiffs. The authors of this book have decades of auto litigation experience, and they have already been through most of the difficulties you will come across. In New York Motor Vehicle Accidents, they share what those decades have taught them. Focusing on the day-to-day practice of automobile cases, the authors offer tools, practice tips, and forms to make your auto practice more efficient.
Updated annually. ISBN 1-58012-050-4. Book Price: $99.00
Click here for more info and to order
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