Car and Commercial Truck Accident - Bodily Injury
What are the first things I should I do if I am in a car, truck or other motor vehicle accident?
If you are able, do the following immediately:
1. Get out of your vehicle to solicit help and information from the other driver.
2. Call the police immediately and ensure a report will be made regardless of the extent of damage to the automobile or the injuries to the drivers and passengers.
3. Obtain the name of the other driver(s), passengers and witnesses.
4. Obtain the information of the other driver's insurance information, home address, and phone number(s).
5. Seek medical treatment immediately.
6. Call your insurance company to inform them of your accident. They will provide you with an adjuster assigned to your case and a claim number which can be used for billing of medical expenses. If you are injured in an auto/truck crash, you should have your medical treatment billed to your no-fault automobile insurance rather than your health insurance. If your bills exceed $20,000, then have your medical treatment billed to your health insurance.
7. Contact an attorney to ensure your right to recovery is protected.
What are the possible insurance claims a victim has following an automobile or truck accident?
There are five insurance claims involved in an automobile or truck accident:
1. No-fault medical and wage loss claims.
2. Bodily injury claim.
3. Vehicle repair or replacement claims.
4. Uninsured motorist claims.
5. Underinsured motorist claims.
What is a no-fault claim?
Prior to 1974, people injured in automobile accidents were paid for their medical bills and their wage loss only when their case was resolved, which often took several years. Since many of the automobile crash injury victims were unable to work due to their injuries, the Minnesota Legislature passed the Minnesota No-Fault Act in 1974 in order to provide more timely benefits. [Minnesota Statutes 65B.41-65B.71]
The Act provides that persons suffering injuries "arising out of the maintenance or use of a motor vehicle," regardless of their fault or innocence, could quickly and easily recover "economic loss" benefits from their own insurance company. No-fault insurance provides for payment of up to $20,000 in reasonable and necessary medical expenses and up to $20,000 in wage loss and replacement services. No-fault medical/wage loss benefits coverage is used for passengers, pedestrians, and drivers who are or are not at fault in an accident.
The No-Fault benefits that you are entitled to are listed below:
- Wage loss benefits
- Medical treatment bills
- Replacement services
- Survivor benefits
- Termination of No-Fault benefits
Who will cover my medical expenses after my car accident?
How much money is available from my no fault insurance to cover my medical expenses?
The amount of coverage you have for medical expenses in the event of an automobile crash depends on the amount of coverage you carry through your insurance policy. Minnesota Statues 65B.44 allows up to $20,000 to be paid to you for your no fault medical expenses from you own auto insurance policy as a result of a car accident.
Where can I obtain treatment?
Once you have called in your claim to your own automobile insurance company you will be assigned a no-fault adjuster, and you will be given a claim number that you may use for your treatment at any medical office or hospital. You are not required to use a specific provider or clinic. You will not be using your personal health insurance unless you have no automobile insurance coverage or your No-fault Expenses have been used up or cut off.
What does it mean that No-Fault covers reasonable and necessary medical expenses?
Minnesota law requires that no-fault automobile insurance pay for medical expenses that are reasonable and necessary such as: medical, surgical, x-ray, optical, dental, chiropractic and rehabilitative services, prosthetic devices, prescription drugs, necessary ambulance and all other reasonable transportation expenses incurred in traveling to receive covered medical benefits, hospital, extended care and nursing services. Also included are physical rehabilitation treatment and occupational training. All of the above care and treatment must be for injuries resulting from the motor vehicle accident. [Minnesota Statutes 65B.44]
Can I also be compensated for mileage and parking expenses incurred when I go to my medical treatment?
Minnesota law requires that mileage to and from treatments and parking costs must be reimbursed as "reasonable transportation costs." These are actual costs to claimant and most often are paid at the IRS rate of 53.5 cents per mile (2017), unless you can document higher costs that are reasonable. You are also entitled to reimbursement for the work hours you miss when you have to attend medical, physical therapy or other medically related appointments. The medical treatment must relate to your accident.
What if I need occupational therapy and/or rehabilitation?
You must provide notice to the insurance carrier within sixty days of incurring $1,000 or more of rehabilitation expenses, or the available benefits may be limited to $1,000. In addition, an insurance company may pay for a vocational program only in order to save wage loss payments. If you can no longer work at a heaving lifting job, an insurance company may pay for vocational training or occupational training in order to get the person back working at a different job. It is important for you to see a medical doctor of your choosing as soon after the accident as possible. Although treatment with a Chiropractor is useful and can assist you greatly with healing, especially with soft-tissue back and neck injuries, we have found that insurance companies are more likely to pay fair compensation for a claim if the injured person has also treated with a medical doctor.
Who should be in charge of my medical care?
Always let your medical doctor direct your care. Follow your doctor's orders and ask your doctor's opinion about the need for chiropractic treatment or physical therapy. Return to your doctor periodically during healing so that your doctor is informed about your injuries and will be able to write a letter for you later as to the extent of your injuries. Chiropractic treatment should be balanced with medical treatment. And both forms of treatment should be covered under your no fault insurance.
Will No Fault Insurance cover my lost wages?
NO FAULT INSURANCE WILL COVER LOST WAGES:
You are entitled to up to $20,000 in lost income replacement through your no-fault insurance. [Minnesota Statutes 65B.44] However, no-fault will pay only 85% of your gross income up to a maximum of $500 per week. You may be able to make up any shortfall later on through your bodily injury claim against the at-fault driver.
For example: If you make $200 per week you will receive only 85% of $200 which is $170. This is the maximum your no-fault insurance will pay based on $200 per week. Therefore, you will lose $30 per week. Later on you may be able to sue the at fault driver for this $30 per week shortfall. However, if you make a $1,000 per week, the maximum you will receive is $500 per week.
What do I have to do in order to receive wage loss benefits through no-fault?
1. You must present a doctor's disability slip to your no-fault adjuster (permission to miss work for medical reasons), AND
2. Proof of wage loss must be provided by your employer (your no-fault adjuster will ask you to sign authorizations and will obtain that information directly from your employer). Be sure to pay close attention to your wage rate and if you have qualified for a pay raise since your injury. Since your wage loss will be calculated based on what you were making for a period of time prior to the crash, you will want to pay close attention to the wage rate that your no-fault insurer is using and confirm that it is accurate. If you can document that a new, higher wage rate has gone into effect for you, or that you had a history of accepting all overtime work and overtime work is now available, it could affect the calculation.
Am I able to receive wage loss benefits if I am only able to return to work part-time?
If you are only able to return to your full-time job on a part-time basis, you may be entitled to continue to receive partial benefits if your disability prohibits full-time return to work. If you receive short-term or long-term disability coverage you may still be able to qualify for additional compensation for your wage loss shortfall through no-fault. Depending on the language in your automobile insurance policy, you may be entitled to additional wage loss compensation through your no-fault insurance. Consult your no-fault adjuster or your attorney to determine if you qualify.
If I was receiving unemployment benefits at the time of the accident, but because of the accident I am no longer eligible to receive those benefits, can I receive compensation through no-fault?
You are eligible to receive no-fault wage loss at 100% of your previous unemployment rate, with a maximum benefit of $500 per week.
If I own a small business and have had to hire substitute employees, will I be compensated for this expense?
Costs incurred for substitute employees to perform tasks which are necessary to maintain the income of the injured person and which are normally performed by the injured person, but cannot be performed because of the injury, may be reimbursed up to $500 per week.
Will I get paid for the time I had to miss work because I had to go to a doctor or other accident-related treatment?
You may also be entitled to reimbursement for reasonable travel time and expenses involved in getting to and from the medical treatment. Ask your attorney or your no-fault adjuster. Keep a travel journal in order to track your time and mileage related to your medical treatment.
Will No-fault insurance pay for help around the house if I am so injured that I can't do household tasks?
REPLACEMENT SERVICES OR HOMEMAKER SERVICES:
You can be compensated for hiring someone to complete household tasks if you are not able to complete them as a result of injuries you sustained in an automobile crash.
To qualify for no fault replacement services, the claimant is not required to be a full-time homemaker, nor does she/he need to show out-of-pocket expenditures. You can receive up to $200 per week for replacement services such as housecleaning, child care, yard work and snow removal, even if the homemaker was or is employed outside the home. The person completing these services does not need to be a licensed provider of services. Rather, the provider of replacement services can be your spouse, adult child, another family member or even a friend. [Minnesota Statutes 65B.44]
When will No Fault pay for this Benefit ?
This benefit does not kick in right away, however. This benefit is calculated as follows: There are no replacement benefits paid until eight days after the crash. The benefits start on day EIGHT. These benefits are subject to maximum compensation of $200 per week.
How do I prove up the time spent on doing the activities that I can't do any longer and that I have had to hire someone else to perform?
Be sure to keep close track of your costs for replacement services. Sit down and make a list of activities you performed before the injury and the time involved. Then add to that list the activities you cannot do as a result of the accident and add the name of the person now performing those tasks, and the time involved as well as any cost to you.
What does "reasonable value" of services mean?
If your spouse or someone close to you is now performing replacement services, you may pay them with a check for the "reasonable value" of the services. Give that information to your no-fault adjuster, who will reimburse you. "Reasonable value" would be considered the hourly "going rate" for work described above and in most regions $10.00 to $15.00 per hour is an acceptable "going rate." Ask your adjuster if the going rate is higher than $10.00 per hour.
What kind of financial help can I get if my loved one was killed in a car crash?
If your loved one has died as a result of a crash that was the fault of another driver, you have an immediate right to sue to the at-fault driver and are entitled to no-fault survivor benefits to begin compensating you and your family for your loss.
No-fault coverage provides coverage for funeral expenses:
The Minnesota No-Fault Act provides for up to $5,000 for funeral expense coverage to include such items as casket, burial, flowers and an organist.
No-fault provides wage loss benefits:
No-fault wage loss benefits may provide compensation to your family for the loss of an individual who was an economic provider for your household. If your deceased loved one was an economic provider for your family, your family may receive up to $500 per week for a maximum of $20,000 in survivor's no-fault wage loss benefits. Other contributions of money or economic value (not including services) the surviving dependents would have received from the decedent are also reimbursable to the surviving family members through no-fault benefits. Also included in the category of economic value are the following tangible items: insurance benefits, disability coverage, pension and Keogh plan, proceeds of household business such as crafts or day care, routine household services, and expenses for wages to compensate a replacement worker for running a business.
Can No-fault insurance stop paying me?
YOUR NO FAULT INSURANCE CAN TERMINATE YOUR NO-FAULT BENEFITS:
The following are a number of reasons why your no-fault benefits may be terminated:
1. You have experienced similar complaints and injuries prior to the accident.
2. Your early symptoms are inconsistent with later treatment.
3. The medical records document that your symptoms have greatly improved.
4. You fail to follow medical recommendations for follow-up visits, self-care, exercise, etc.
5. You have long periods where you have not treated with a medical doctor or physical therapist or chiropractor.
6. You have a lack of objective findings. In other words, you have no way to prove the extent of your injuries through your medical records and are relying solely on your own testimony.
7. You go to a doctor for health care unrelated to your accident and the medical records from that visit document that the "affected areas" (those injuries caused by the accident) are normal.
8. You failed to report your injuries immediately after your crash or received no treatment for several weeks or months after the accident.
9. After 9 months to a year, you have experienced no improvement with medical care. If this is the case, the insurer will likely terminate the benefits because they will argue that the treatments are not beneficial or that you have reached "maximum medical improvement."
10. You have had unusual treatment techniques, or unusually expensive or extensive treatment techniques.
11. Your medical professional over-treats you, such as recommending treatments 3-5 times per week.
12. You have not treated for over one year.
Your no-fault insurer can usually cut you off from benefits if you there is a one-year lapse in treatment or disability.
WHEN IS TERMINATION ALLOWED BY LAW?
Termination is allowed when the insurer can show that the policy contains a one-year lapse provision and there was a one-year lapse in the treatment or disability. The no-fault insurer must notify you in writing sixty (60) days before the one-year lapse. It is important to have a yearly checkup to monitor your condition.
WHAT IS AN IME?
After providing no-fault benefits for a period of time, the insurer can demand that the injured person attend an IME. This "independent" medical examination is always paid for by the no-fault insurer with the goal of cutting off the injured person's no-fault benefits. By law you are required to attend an IME, if requested.
ARBITRATION IS THE ONLY METHOD FOR CONTESTING A TERMINATION OF NO-FAULT BENEFITS:
If your benefits are terminated, you may have the right to file a claim for arbitration with the American Arbitration Association.
At the time the arbitration is filed, the unpaid benefits must total less than $10,000. Your attorney will assist you with arbitration. If the unpaid amount is over $10,000, your attorney can file a lawsuit against your no-fault insurance company. If your no-fault benefits are cut off, you must use your private health insurance for the payment of your medical bills related to the crash. It remains important that you continue treating your injuries if you are still suffering symptoms in order to prove up your claim for bodily injury against the at-fault driver.
What is no-fault stacking coverage and should I make sure I have it?
If you have more than one automobile we strongly recommend that you purchase "stacking" insurance coverage. You can purchase stacking coverage for a nominal fee, and doing so will double the amount of no-fault coverage you can collect from your insurance in the event of an accident. This is especially beneficial for drivers who do not have medical insurance, because it provides affordable extra protection in the event of severe injury from a major crash. Stacking only applies to your no-fault coverage and does not apply to your liability, uninsured, or underinsured coverage.
What types of crashes are not covered under the no-fault act?
The No-Fault act does NOT cover the following when it comes to vehicle accidents in Minnesota: [Minnesota Statutes 65B.59, 60]
1. Injuries suffered while riding, mounting or alighting from a motorcycle. (Motorcycle owners have to buy specific motorcycle no-fault insurance coverage.) If you own a motorcycle we strongly recommend that you purchase no-fault coverage to ensure that you are protected if you are injured.
2. Intentional injuries (unless the injuries are not intended by the victim).
3. Injuries suffered in the course of an official racing contest.
4. Vehicle owners who are not insured.
There is no requirement that auto insurance companies provide no-fault coverage on motorcycle policies unless you request an additional policy. You need to talk with your insurance agent about adding no-fault coverage to your motorcycle policy if you wish to be covered in Minnesota
What is a bodily injury claim?
This is insurance that requires "fault" to be found. If you are in an accident and it is not your fault, or a loved one has been injured or killed by someone else's careless driving, you have a right to make a claim against that driver's liability insurance. Before you are allowed to make that claim, you must meet one of five thresholds. A bodily injury claim is filed against the insurance company of the driver found to be at fault, or negligent, in the accident or against the at fault driver individually. These claims cover any injured party, including the at-fault driver's passengers, pedestrians, or occupants of another vehicle involved in the crash.
In Minnesota, all drivers must buy liability insurance of at least $30,000 for injuries to one person and $60,000 for injuries to two or more people and $10,000 for property damage. Injured parties can be reimbursed for the expenses incurred from the liability insurance and or the at-fault driver's assets including past and future medical bills and lost wages; permanent injury; and past/future pain and suffering.
Often, bodily injury claims are settled out of court, but other times they are brought before a jury. The experienced personal injury lawyers at Lord + Heinlein have helped thousands of clients get settlements they deserve, and to get their lives back on track.
Do I get any no-fault benefits if a loved one has died in a car/truck crash?
If your loved one has died as a result of a crash that was the fault of another driver, you have an immediate right to sue to the at-fault driver and are entitled to no-fault benefits to begin compensating you and your family for your loss.
No-fault coverage provides coverage for funeral expenses.
The Minnesota No-Fault Act provides for up to $5,000 for funeral expense coverage to include such items as casket, burial, flowers and an organist.
No-fault wage loss benefits may provide compensation to your family for the loss of an individual who was an economic provider for your household.
If your deceased loved one was an economic provider for your family, your family may receive up to $500 per week for a maximum of $20,000 in survivor's no-fault wage loss benefits.
Other contributions of money or economic value (not including services) the surviving dependents would have received from the decedent are also reimbursable to the surviving family members through no-fault benefits. Also included in the category of economic value are the following tangible items: insurance benefits, disability coverage, pension and Keogh plan, proceeds of household business such as crafts or day care, routine household services, and expenses for wages to compensate a replacement worker for running a business.
What are “tort thresholds” and why must my claim reach them before I can sue the at-fault driver?
The Minnesota Legislature created "tort thresholds" when it created the laws for automobile accident claims. To ensure that only serious injuries access the legal system, Minn. Stat. 65B.51 requires that before a victim (or their survivors) can sue the at-fault driver, they must meet one of the following requirements:
1. Over $4,000 in medical expenses; OR
2. Suffered a permanent injury. A permanent injury is one that will continue throughout the victim's life, but it might improve or worsen; OR
3. Suffered from a permanent disfigurement, which injures the victim's appearance to a significant degree; OR
4. Suffered from a disability for more than 60 days. A doctor has to confirm that the victim's injuries have significantly impacted the victim's work, home, or social activities; OR
5. Died as a result of the accident.
What is the value of my bodily injury (“liability”) claim?
How is my personal injury claim valued?
Establishing the value of a personal injury claim is similar to establishing the value of a home for sale. In the real estate business, agents keep track of similar sales in various areas. Lawyers and insurance companies also keep track of similar trial verdicts and settlements that are accessed and compared to the injuries of each client. The value cannot be established on the day of the injury, but rather once the injured person has finished treating and reached "maximum medical improvement."
There are many issues to be considered once the claimant heals such as the total past and future loss of wages, cost of medical expenses, pain and suffering. Most importantly, since the medical record is relied on as proof on injuries and damages, it is important that you treat any injuries that you sustained in the accident immediately, and follow the treatment directives of your medical provider
There are a number of factors that go into determining the value of your case. First, it is important to understand the risks of going to trial vs. settling your claim out of court.
Should I settle or go to trial?
Once your case is ready for settlement or litigation, you can proceed to resolve your case through a settlement or, if settlement is unsuccessful, through trial. The attorney may choose to send a letter to the defendant and/or the insurance adjuster making a demand for a payment of a particular amount of money to resolve the claim. If negotiations for settlement prove unsuccessful, the attorney and the client will discuss the client's options and will make a decision to either accept the final offer or put the case into suit and go to trial.
How does my attorney start my lawsuit?
Litigation begins when the attorney serves a summons and complaint on the defendant. Then, the defendant will answer. Once the discovery phase of the case is completed, your case will likely proceed to mediation and at that time have another opportunity to settle the case before trial begins. If mediation is not successful, we proceed to trial.
What are the factors that should be evaluated to help decide whether or not to take my case to trial?
1. How would a jury decide?
The insurance companies win the majority of personal injury trials in Minnesota. Juries tend to find for the defendant between 55-60% of the time. So, in deciding whether to go to trial, it is important to be familiar with the strengths and weaknesses of your case not only from a legal perspective, but from the perspective of the average juror as well.
2. How much insurance coverage is available?
In almost all cases, you can recover only up to the amount of the liability coverage carried by the person who caused your injury. If you go to trial and the jury awards you, for example, $50,000 but the defendant has only $30,000 in liability coverage, you can only recover the $30,000 that is available on that policy. An injured party can successfully sue for the defendant's assets only if the defendant has assets other than a home (primary residence). And, even if you are able to obtain a judgment against the at-fault defendant's personal assets, collecting on that judgment also poses its own set of difficulties since the court will not do that for you.
In the above example, you may also make a claim for underinsured benefits on your own policy to cover the $20,000 shortfall.
3. How strong are your legal arguments for liability/negligence:
Your attorney will be able to educate you on the strength of the legal arguments for your case. One of the way to determine the strength of your case is to answer the questions that a jury my answer at the end of the trial. After the trial is completed the jury is brought into the jury room where they are given the following series of questions to answer:
4. Was the defendant negligent (at fault for the accident)?
Being a member of society requires that we all act, drive, and maintain our vehicle in a responsible way. The jury must consider whether the defendant (at fault driver) breached his/her duty of acting responsibly to his/her fellow citizens. Driving through a red light is clearly a breach of that duty, hence negligence. A questionable case is when a driver rear-ends the car in front of him/her because the driver in front of them made a very sudden stop. It would appear that that driver had no choice.
5. Was the plaintiff (you) in any way at fault or partially responsible for the accident?
This concept is known as comparative fault. In Minnesota, a jury is asked to determine percentages of fault. For example, if they determine that the plaintiff has some degree of fault such as 15% and Defendant has 85%, the Judge is then required to deduct the 15% of Plaintiff's fault from the total award. However, if the jury attributes the plaintiff with 51% or more of the fault, the plaintiff loses the entire case and must pay the defendant's costs and expenses of having to go to trial.
6. Was the defendant's negligence what caused harm to plaintiff (you)?
The jury must then decide whether the defendant's negligence (driving through a red light and hitting your vehicle) was the cause of plaintiff's injuries such as a broken arm.
7. What is the severity of the damage sustained by the plaintiff (you)?:
1. Past and future medical treatment costs; the jury must consider past medical treatment expenses and if a doctor can document that you will need future medical treatment and can prove the cost of that treatment, those costs will be considered as part of your damages.
2. Past and future pain and suffering; pain and suffering is a subjective consideration of the injured person's claim that a jury will address.
3. Past and future lost wages; if you have missed a lot of time from work as a direct result of the injury, the loss of wages, both in the past and in the future will be considered in the value of your claim.
4) Trial is a very lengthy process and can be very stressful for some plaintiffs and their families.. If you take your case to trial you will need to go through the long and arduous process of litigation. You will need to have your deposition testimony taken before trial, and, at trial, you will need to testify on the witness stand. The defendant will do everything they can to discredit you and your testimony, which can be very difficult and stressful.
Are there laws in Minnesota that discourage plaintiffs from going to trial?
There can be a number of adverse consequences for plaintiffs that choose not to settle their case and take it to trial instead, even if they "win" at trial. The Minnesota legislature has devised several ways to prevent a plaintiff from bringing a frivolous lawsuit. These series of laws are known as tort reform laws. Plaintiffs in Minnesota have some of the most severe consequences of any state if they lose at trial and these tort reform laws act as effective deterrents to bringing unworthy claims.
The following are rules that must be considered before deciding to go to trial:
• Collateral Source Rule:
Minnesota law requires the Judge to deduct from the jury verdict award all of the collateral source payments (all other sources of benefits that have been contributed to your care as a result of this accident). Collateral source payments consist of the following:
1. All no-fault benefits received;
2. All contributions made by your health or dental insurance to pay for your medical care;
3. Worker's compensation payments your received for your injuries if the incident occurred at work;
4. Disability payments not directly purchased by you. 5..Your health insurance has a right of subrogation (to be reimbursed for the money they paid for your care).:
If your health insurer has covered any of your medical expenses as a result of this accident, the law allows them to be reimbursed in full unless they fall into an exception. The exception is found in Minn. Stat. 62A.095, Subd. 2(1), which provides that a subrogated medical provider cannot receive reimbursement until the covered person has received "full recovery." If you have received 'full recovery' by law, such reimbursement must be paid out of your share of the recovery.
• Rule 68 Offer of Judgment:
Sometimes the plaintiff can lose at trial even if he/she wins at trial. By law, before trial begins, the defendants can make a formal written Offer of Judgment (final settlement offer) to the plaintiff, pursuant to Civil Procedure Rule 68 in order to settle the case. The plaintiff can refuse to accept the Offer Of Judgment and choose to go to trial. However, in order to win her/his case, the plaintiff must net a total award (after comparative fault and collateral source deductions mentioned above) greater than that Offer of Judgment to win their case.
For example, if the plaintiff wins at trial but the jury award, after the deductions for comparative fault and the other collateral sources, results in an amount less than the Offer of Judgment made to the plaintiff, the plaintiff will collect nothing and, in fact, be forced to pay to the defendant all of his/her costs and expenses to try the case.
Would you please give me an example of winning at trial but losing because of a Rule 68 Offer Of Judgment?
1. $10,000 Offer of Judgment (Made by Defendant Prior To Trial)Would you please give me an example of an Offer of Judgment?:
$9,500 Jury Award. The jury award is $500 less than Offer of Judgment. As a consequence, according to the rule, the plaintiff has lost the trial and will have to pay defendant's costs and expenses.
What do I owe if I lose at trial?
When plaintiffs lose at trial they must pay all the defendant's costs and expenses (case expenses). When plaintiffs lose a personal injury case against an insured defendant, the insurance companies routinely obtain such a judgment against the plaintiff for the insurance company's costs and expenses of the case regardless of the plaintiff's financial situation. In addition, if the plaintiff loses at trial, he/she, depending on the agreement with their attorney, may also have to pay their own case costs/expenses incurred during the litigation. Case expenses and costs go up drastically once the decision is made to go trial. For instance, you will need to retain an expert to testify on your behalf, which often costs as much as $3,000 or more.
How can I decide whether to settle or go to trial?
Below are some sample calculations to illustrate a plaintiff's take home award with settlement vs. trial:
Needless to say, going to trial with these severe consequences for losing should make all plaintiffs carefully consider the advantages of settlement. The following sample calculations have been put together to show the difference between what a plaintiff can expect to get at trial versus what he/she may take home in the case of settlement.
Assume the following facts:
1. Liability insurance limit (defendant's total insurance coverage) is $30,000.
2. Liability insurance adjuster has offered $15,000 to settle your case.
3. Plaintiff (you) will be found 5% of fault by a jury.
4. Plaintiff (you) has been paid some collateral sources, as follows:. Collateral Sources have been paid such as the following:.
1. Health insurance paid – $1,200
2. Work Comp/Disability payments paid – $ 1,000
3. No-fault benefits paid – $ 5,000
4. Total Collateral Sources paid- $ 7,200
5. Consider the amount of the case expenses that are owing
1. Case expenses before trial starts – $ 800 and after trial they are $5,000
6. Imagine that if you go to trial you will obtain a jury verdict o $30,000.
7. What are the approximate deductions that will be taken from my jury verdict award?
1. 5% Comparative Fault – $1,500
2. All Collateral Sources Deducted – $7,200
3. Attorney's Fees of 1/3 of the $30,000 verdict -$10,000
4. Case Expenses -$5,000
5. Total Deductions – $23,700
6. THE NET AWARD TO PLAINTIFF (YOU) IS $6,300
8. What are the deductions that will be taken if I accept a settlement offer of $15,000?
1. Attorney's Fees of 1/3 of the settlement of $15,000 – $5,000
2. Health Insurance To Be Paid Back (Subrogation) – $1,200
3. Worker's Comp Payments – $1,000
4. Case Expenses -$800
5. Total Deductions – $8,000
6. THE NET TO PLAINTIFF (YOU) IS: $7,000
In the case of settlement, plaintiff does not have to deduct any collateral sources or percentage of fault from the settlement. However, health insurance payments and worker's comp payments must still be reimbursed so they are deducted anyway. Plaintiff receives a net award almost as much as he/she would at trial without the risks and without the 5% deduction of comparative fault or the deduction for no-fault benefits of $5,000.
While there are circumstances where trial is appropriate, it is important to fully understand the reality of the risks associated with trial in order to best weigh whether or not it is the best course of action for you, your family and the outcome of your claim. Your attorney will explain these risks in greater detail as they relate to your specific case.
Will I be able to be compensated if the at-fault driver has no or a very low amount of auto insurance?
If an uninsured driver injures you, your own insurance provides coverage for your bodily injury damages (such as pain and suffering and permanent injury) through the uninsured motorist coverage portion of your own automobile insurance policy. Similarly, if the at-fault driver's insurance policy does not provide adequate coverage to compensate you adequately for your injuries, you can be compensated through your own underinsured motorist coverage to make up the shortfall.
The required minimum amount of uninsured and underinsured motorist coverage you must have under Minnesota law is $25,000 per person and $50,000 per crash, but we strongly recommend you buy at least $100,000 to $300,000, if not more, in uninsured motorist insurance. Increasing this coverage is relatively inexpensive and it ensures that you and your family are protected if an uninsured motorist injures you.
Car and Commercial Truck Accident - Automobile Damage
After an accident, who pays for repairs to my vehicle?
Who pays for what in a car accident in Minnesota?
Who pays for your automobile damage after an accident in Minnesota depends on the type of coverage you have and who was at fault in the crash.
1. If you have collision coverage in your automobile insurance policy, your insurance company may pay the entire bill minus your deductible. If the crash was not your fault, your insurer will seek repayment from the at-fault driver's insurer. The at-fault driver's insurer should also reimburse you for payment of your deductible.
2. If the other driver is at fault, his or her insurance company must pay for your vehicle damage promptly, including any deductible, even if you don't carry collision insurance.
3. If you have collision coverage and you were partially at fault, each insurance company must pay a fair percentage equaling each driver's fault.
If my automobile is repairable what obligation does the insurance company have to make repairs?
According to Minnesota Statute 72A.201 subdivision 6, if the insured (you) is NOT an automobile dealer, the insurer must assume the following:
1. Pay all costs for the satisfactory repair of the motor vehicle;
2. Satisfactory repair includes repair of both obvious and hidden damage as caused by the crash;
3. Include reasonable towing costs; and
Offer a cash settlement sufficient to pay for satisfactory repair of the vehicle.
How is the value of my car determined?
Contrary to popular belief, your car is not valued at the "Blue Book" rate. Blue Book rates are used mainly for auto dealers and banks to determine "retail value" and "loan value" which are inflated for purposes of profit. Insurance companies evaluate your vehicle based on the "market value" rate, which means "what the average consumer would pay for the same vehicle." Your vehicle is rated based on the following:
4. Condition (excellent, good, fair, or poor)
What if my vehicle is a total loss?
If your vehicle is "totaled" this means one of two things:
1. The cost of repairs exceeds the value of the vehicle; or
2. The vehicle is demolished beyond repair and the only option is to replace it.
Under these circumstances the insurance company will make you an offer for your vehicle. Once you have accepted their offer, you will need to do the following:
1. Sign the title over to the insurance company and deliver it to them.
2. If there is a bank loan, the bank will inform you of the final payoff and you will need to pay it.
Turn in the rental vehicle. (You can usually get a couple of days to get your affairs in order, but you cannot procrastinate, or you will be responsible for any additional charges on a rental vehicle.)
What happens if my car is totaled and I owe more on my car loan than the insurance company will pay me?
Unfortunately, vehicles depreciate very quickly and you may not always get what you believe your vehicle is worth. It is sometimes difficult to negotiate with the insurer for a higher settlement for your vehicle. Occasionally, you end up "upside down" concerning your vehicle, which means your loan exceeds what the vehicle is worth.
You then owe the bank the difference, despite the fact that your vehicle is totaled. In that situation most banks are usually willing to work with you on the remaining balance. You can protect yourself from this by carrying GAP insurance on your vehicle.
What steps must the insurance company take in covering the cost of my totaled vehicle?
According to Minnesota Statute 72A.201 subdivision 6, if your vehicle is sufficiently damaged in a car crash in Minnesota, and if the automobile insurance policy provides for the adjustment and settlement of an automobile "total loss" on the basis of actual cash value or replacement with "like kind" and quality, then the insurance company must offer a comparable and available replacement automobile or a cash settlement based upon the actual cost of purchase of a comparable automobile.
If a comparable automobile is not available in the local market area, the insurance company must obtain one or two or more quotations obtained from two or more qualified sources located within the local market area. The insured (you) should be provided the information contained in all price quotes prior to settlement.
If I put a lot of money into repairing the vehicle before the accident, will I get reimbursement?
You will not be reimbursed for "normal" maintenance. For example, if you had recently replaced the brakes, that would probably just be considered "normal" maintenance. However, if you paid for a repair or modification that significantly improved the value of the automobile, it may be reimbursable to you. You must provide documentation for any modification you have made. For example, if you had recently replaced the engine or transmission or tires, you must provide the insurer with the receipts for the parts and labor. Without that documentation, there is no way to substantiate that your vehicle was repaired at a cost to you.
Will the at-fault driver’s insurance company pay my deductible for property damage to my vehicle?
If your own insurance company pays for the repair of your vehicle, you will be responsible for paying your deductible up front. The negligent party's insurance company should eventually reimburse you for your out-of-pocket deductible.
If my automobile is considered a total loss, will I be reimbursed for any of the fees I have paid the state for the ownership of my car?
Yes. According to Minnesota Statute 72A.201 subdivision 6, the insurance company that pays for the loss must also pay the following:
1. All applicable taxes;
2. Licenses fees, at least pro-rata, for the unexpired term of the replaced automobile's license;
Other fees paid incident to the transfer or evidence of ownership of the automobile, at no cost to the insured other than the deductible amount as provided in the policy.
What if some of my personal property was damaged in the crash?
Unless you or the at fault driver have personal property protection in your insurance policy, you will not be reimbursed for personal objects damaged inside your car as a result of the crash.
Will I get a rental car while mine is being repaired?
If you carry rental coverage on your own insurance policy, your rental expenses will be covered. If you do not carry rental coverage, you are entitled to a rental car from the other driver's automobile insurance, assuming they have insurance and were at fault in the accident. Most insurance companies deal directly with the rental agency so you need not worry about paying "up front" fees for your car rental after an accident.
Under some circumstances, you will have to pay for the rental vehicle and then seek reimbursement from the other person's liability carrier. Again, this is determined by who is at fault. Once your vehicle is repaired, the rental vehicle must be turned back into the rental agency immediately or you will be responsible for any additional charges.
If my car is considered a total loss, will I be reimbursed for any of the fees I have paid the state for the ownership of my car?
Yes. According to Minnesota Statute 72A.201 subdivision 6 the insurance company that pays for the loss must also pay the following:
1. All applicable taxes.
2. Licenses fees-at least pro-rata for the unexpired term of the replaced automobile's license.
3. Other fees paid incident to the transfer or evidence of ownership of the automobile, at no cost to the insured other than the deductible amount as provided in the policy.
What if the insurance company refuses to pay me for the damage to my automobile?
The State of Minnesota has established several rules for insurance companies to follow when it comes to dealing with automobile and truck insurance payments.
If you feel that an insurance company is dealing you with unfairly, you should contact an attorney.
What if my car is damaged, but no one was harmed?
Minnesota law does not require comprehensive insurance and collision insurance coverage. If you have comprehensive insurance, you may be covered for auto damage that results from incidents other than typical accidents. For example, you may be able to recover from your insurance company in the event your car is stolen, vandalized, damaged in a flood or fire, or by animals. Coverage is limited by the terms of your insurance contract with the insurance company. Your lender/financing company often requires this type of insurance if you have a loan or a lease on your motor vehicle.
If your vehicle was damaged in a car accident and no one was injured, you may be able to have the damage covered by the at-fault driver's insurance policy. Often you do not need an attorney to assist you with a property damage claim where there is no personal injury present.
What are my legal rights if I am injured by a drunk driver"
What legal rights do I have against a drunk driver who injured me in a crash?
1. You have a right to collect from the driver's insurance.
2. You have a right to collect from the driver.
3. If the driver was at a bar, you have a right to collect from the bar in a Dram Shop suit.
4. You may have a right to collect from your own insurance for underinsured or uninsured benefits
5. You have the right to collect No-Fault benefits for up to $20,000 in lost wages, and $20,000 in medical expenses.
6. You have the right to have your automobile/truck repaired or replaced.
7. If the drunk driver's BAC is over 10%, you have a right to make a motion for punitive damages at the end of the trial.
Can I bring a dram shop claim against a bar or restaurant so they can be held liable for damages caused by an intoxicated patron?
Yes. This is called a Dram Shop Claim. Under Minn. Stat. § 304A.801, a liquor establishment (usually a bar, restaurant, or liquor store) can be held liable for injuries stemming from the intoxication of the drunk driver, if the sale was illegal.
Generally, illegal sales include:
1. Sales to a minor.
2. Sales to an obviously intoxicated person.
3. Sales made during a prohibited time of day/day of the week.
More information on Dram Shop claims can be found here.
What things must be proven in court when bringing a Dram Shop Claim?
The Dram Shop statute requires:
1. The sale "contributed" to the driver's intoxication and the intoxication is a direct cause of the victim's injuries or damages. These can include medical bills, lost wages, property damage, and pain and suffering. Additionally, the surviving family of a victim who passes away as a result of the accident can also sue for loss of support.
3. A Wrongful Death claim may be made by the victim's survivors directly against the drunk driver. If the survivors make a Dram Shop claim, the survivors must each bring it individually.
4. A claim for punitive damages may be pursued against the drunk driver. If the drunk driver's blood alcohol level tests above .08, you have a right to make a motion before a judge to add a claim for punitive damages pursuant to Minn. Stat 169A.76.
Who has the right to sue the bar that over-served the drunk driver who seriously injured or killed another person?
The following persons can file a lawsuit against the bar that over served the intoxicated person who caused the crash.:
Any dependents can recover for loss of means of support, property loss and pecuniary loss. Any dependents include the following: a spouse, child, parent, guardian, employer, or other person, injured in property or means of support.
Will the dependents be punished by the fact that the intoxicated person was partly at fault for their own injury?
No. Comparative fault will not be charged against the family of the allegedly intoxicated person.
Does the person who is injured by their own intoxication have a right to sue the establishment?
The law does not allow the intoxicated person to sue the bar for causing their injury, no matter what. If he/she dies as a result of the intoxication, their estate cannot sue, but the family members as dependents can sue. Minn. Stat. 340A.801. subd. 1.
Can I punish the drunk driver who caused our crash and the resulting injuries and death?
Is there a way I can have the drunk driver punished for driving drunk and hurting or killing someone else?
A claim for punitive damages may be pursued against the drunk driver. If the drunk driver's blood alcohol level tests above .08, you have a right to make a motion before a judge to add a claim for punitive damages pursuant to Minn. Stat 169A.76.
What are punitive damages?
Punitive damages are designed to punish or deter a person who has acted in a willful or indifferent manner towards the rights and safety of another. Juries decide how much to award for punitive damages, after they have found a defendant liable. This type of award is not limited, it can be as big or as small as a jury thinks it should be, and it comes directly out of the drunk driver's pocket which may act as a deterrent to future drunk driving.
Is Drunk Driving still a problem in Minnesota?
In 2015 there were 95 fatalities in Minnesota from alcohol-related crashes, accounting for approximately 30% of all automobile fatalities that year. Historically, accidents involving alcohol cause more serious injuries. Recent figures show that 12 percent of moderate injuries and almost 36 percent of severe injuries from automobile accidents in Minnesota were the result of an alcohol-related crash. There were more than 25,000 impaired driving incidents in Minnesota in 2015. Although drunk driving rates are on the slow decline since they began to track them in 1982, drunk driving is still a problem in Minnesota.
What Is Social Host liability?
Under Minnesota social host liability laws, adults who serve or provide alcohol to minors can be held liable if the minor person who was provided alcohol kills or injures another person. Minnesota does allow a civil cause of action against a social host who provides alcohol to those who are under 21.. Priscilla Lord was part of the Robert Wood Johnson sponsored study group that wrote the Social Host laws. She helped to lobby the legislature that resulted in the passage of the Social Host law. in 2000.
Why Is Social Host liability important?
The most common sources of alcohol are the young person's own home or from persons over the age of 21 who purchase alcohol for them. Social host liability may deter parents and other adults from hosting underage parties and purchasing/providing alcohol for underage youth. The law protects minors from injuring themselves and others because of their illegal consumption of alcohol. This bill has given parents the courage to say "no" to facilitating underage consumption of alcohol.
Who can I sue if I am in a snowmobile or ATV crash?
There are a number of parties that may be at fault if you are injured in a snowmobile or ATV crash. However, in order to bring any type of lawsuit, most times you must have been injured in a collision with another driver. There are very few circumstances where you would be able to bring a lawsuit against someone else for your damages if you were in a single person crash. You should consult with an attorney right away if you feel your injuries may have been the fault of another.
How is my claim affected by Recreational Immunity?
Recreational Immunity is a type of governmental immunity that protects government entities from liability if you become injured while engaging in a recreational activity on government lands. Snowmobiling on public trails would be considered one such recreational activity. Many private amusement or sporting parks (such as ski hills) will also have a recreational immunity clause that you agree to upon your purchase of a ticket or admission into their park.
Am I required to wear a helmet while operating or riding on a motorcycle in Minnesota?
No, but it is a very good idea to protect yourself by wearing a helmet as well as protective gear while riding on a motorcycle.
If I was injured while operating a motorcycle,are my injuries covered by my no-fault insurance?
Injuries suffered while riding, mounting or alighting from a motorcycle are usually not covered by your automobile no-fault insurance coverage. Motorcycle owners have to buy specific motorcycle no-fault insurance coverage. If you own a motorcycle we strongly recommend that you purchase no-fault coverage to ensure that you are protected if you are injured.
Dog Bite Injury
What should I do immediately following an animal attack?
1. Identify, and if possible, isolate the dog/animal. If the animal has ID tags, record the information on the tags.
2. Get the name and contact information for the animal's owner, and any witnesses.
3. Note the location where the attack occurred.
4. Try to determine if the animal has been vaccinated against rabies and other diseases in order to evaluate your risks.
5. Evaluate and clean the wound.
6. If the bite is deep or will not stop bleeding, go immediately to the emergency room for treatment. Seek medical treatment immediately.
7. Following treatment, call Animal Control and the police (911) in the city where you live to report the event.
8. Photograph all injuries, torn or bloody clothing, or other possible evidence.
9. Do not sign anything, offer any apologies, or provide information to insurance companies, adjusters, witnesses or the animal's owner until you have talked to an attorney.
Can I get immediate coverage for the cost of my medical treatment, missed work, and other expenses?
Unlike with no-fault coverage in an automobile crash, there is rarely money available right away to help with expenses. Sometimes there is a medical payment provision available to provide some coverage of expenses upfront through the animal owner's homeowner's or renter's insurance policy.
To obtain full compensation a claim needs to be filed with the animal owner's homeowner's insurance policy or rental insurance policy. These claims can take months, sometimes years, to fully resolve. Therefore, you will likely need to use your own health insurance coverage to treat your injuries.
Who will compensate me for my damages?
Since dogs and other animals are considered property, you will look to the animal owner for compensation. You may be able to bring either or both of the following types of claims for compensation:
STRICT LIABILITY CLAIM: Under Minn. Stat. § 347.22, dog owners are liable for the injuries caused by their dog. This is a strict liability statute, which means that the dog owner is always liable unless the victim provoked the dog, or the victim was somewhere they should not lawfully be.
NEGLIGENCE CLAIM: For dogs and other types of animals, there is also a negligence claim against the owner. An owner who fails to exercise reasonable care in controlling their animal is negligent, and liable for injuries the animal causes. For some cases, punitive damages are also available.
If you are successful, the owner, or the owner's homeowner's or rental insurance, will provide payment for your damages.
Will I be compensated for the damage to or loss of my own animal?
If the attack occurred while you were walking your own dog, for example, and your dog was severely or critically injured, you may be able to obtain compensation for your animal's injuries. Since animals or pets are considered property, you would seek compensation through the attacking animal owner's homeowner's or rental insurance, to compensate you for the damage to your animal.
What will happen to the dog or animal that attacked me?
The local animal control authorities will make this determination. The animal may be taken in for observation or testing. If there is no proof of rabies vaccination provided by the animal owners, the animal may need to be euthanized and autopsied to determine if it was rabid. If the animal has attacked before, it is very possible that it will be deemed a dangerous dog, which may result in a requirement that the animal always be muzzled, or it may be euthanized.
Professional License Defense
I have received a letter from my licensing board and was wondering if you would explain how the process works?
Your Licensing Board is an Administrative Body and Investigations Against Your License are Governed by Administrative Law Rules:
Administrative law differs greatly from civil law or criminal law. Unlike with criminal or civil matters, which are decided by a judge or jury, administrative matters are decided by an administrative body. In the case of allegations against a licensed professional, that administrative body is your licensing board. Administrative bodies are granted such great deference by the legislature because they are considered the experts with regarding to whether or not an individual's practice poses any sort of risk to the public. As is elaborated on below, this means that your board will ultimately determine how your matter will be resolved, whether through dismissal, some sort of discipline against your license, suspension, or revocation.
Do I Have a Right to Due Process?
Since your professional license is considered your property, your right to due process enumerated in the United States Constitution protects you: your license cannot be arbitrarily taken away from you without a hearing. An administrative process has been outlined by the Minnesota Legislature that empowers your licensing Board to protect the public from unsafe practitioners, while also protecting your right to due process.
Must I Cooperate with My Licensing Board?
Failure to cooperate with your licensing Board in the event of an investigation will likely result in your license being suspended or revoked indefinitely. You must provide a response to their questions and provide your full cooperation.
Do I have to Respond to the Board Allegations?
It is important to provide an appropriate and timely response to any written Allegations that have been served against you by your Board. You should consult an attorney before providing any response to your Board.
What is the Complaint Review Committee?
If you are called to a hearing or conference before the Minnesota Board of nursing or any other Board, it will be before a complaint review committee. Most licensing boards in Minnesota follow similar or same procedures. These committees vary in their make-up from Board to Board, but are generally composed of one or more members of the larger Board, an investigative Board staff member, and the Assistant Attorney General who is appointed to advise and represent your Board
Is the Complaint Review Committee' decision about my case the end of the process?
The committee will recommend their decision about your case to the full Licensing Board in one of the following ways:
1) complete dismissal of the allegations;
2) discipline be issued against your license;
3) suspension over your practice;
4) revocation of your license.
In most cases the full Board will almost certainly approve the committee's recommendation.
How does the licensing board finalize my case?
If the complaint review committee recommends discipline against your license, which could include a period of suspension, you will most likely be presented with a Proposed Stipulation and Consent Order to sign. The Stipulation will outline the facts and the terms of the discipline against your license. It is very important to talk with an experienced professional licensed attorney about the Stipulation because once you sign a Stipulation and Consent Order with your Board the document will become available to the public and it can never be removed.
What are the typical types of Discipline imposed on a licensed professional?:
If the committee determines discipline is appropriate, some types of discipline that may be recommended include: imposition of a fine, completion of additional education, requirement of ongoing supervision over your practice, limitation on the scope of your practice, or participation in the Health Professionals Services Program (HPSP).
What is a Contested Case Proceeding?
If you are unable to reach a settlement agreement with your licensing Board, you have the option to go beyond the Board review process and pursue a Contested Case proceeding before an Administrative Law Judge. This process is much like a trial where you will have the opportunity to testify, and present evidence and call witnesses to testify on your behalf. It is important to recognize that, while you may obtain a favorable advisory opinion from the Administrative Law Judge, your licensing Board can override the Administrative Judge's decision and may still make the final determination as to how your case will be resolved.
Would my case ever go up to the Court of Appeals?
If you remain unable to reach a settlement agreement with your licensing Board through a Contested Case proceeding, you still have the right to appeal your case to the Minnesota Court of Appeals. It is rare that cases fail to settle before reaching this level in the legal process and even rarer that the Court of Appeals will find against the recommendations of your licensing Board. absent a gross violation of your rights to Due Process, the Court of Appeals rarely overturns a Board's recommendation.
Who sits on the licensing Boards?
What is the purpose of each Minnesota professional license Board?
Nearly every licensed profession in Minnesota has a Board to oversee the education of and enforce the standards for its licensees. The Boards and their respective practice standards are administrative agencies that are created by and governed through Minnesota state law. These Boards are granted great deference for their expertise about their respective professions, and act as the judge and jury in any matter regarding the safety or fitness of their licensees.
What is the mission of the Minnesota Licensing Boards?
The mission of the Minnesota Licensing Boards is to protect the public, not the licensee (you). It is important that you take any allegations against your license seriously. An experienced license defense attorney can guide you through this stressful and complicated process, prepare you for your hearing, and help you obtain the best possible outcome. An Assistant Attorney General always represents your licensing Board throughout each proceeding: do not go it alone.
What is the make-up of my licensing board?
The Minnesota professional licensing Boards consist of several same-licensed professionals, at various practice levels, and some community or public members who are not licensed professionals. There are also paid Board staff members, who are not Board members, such as Practice Specialists or administrative support staff, who facilitate disciplinary proceedings. An Assistant Attorney General from the Minnesota Office of the Attorney General, always represents the Board throughout any investigative or disciplinary proceeding.
I have been called to appear for an investigative interview with an investigator at the Minnesota Attorney General’s office. Do I need a lawyer for that?
At Lord & Heinlein we highly recommend obtaining an attorney for any investigative interview in Minnesota. This interview has been requested by your professional licensing board in order to gather more information from you regarding the complaint they have received. It is wise to retain a professional license defense attorney who can speak with the investigator before the interview to find out more about what the interview will be about. Then, your attorney can help prepare you for the interview and accompany you at the interview. The interview will be recorded and will become a permanent part of the record regarding the investigation against your professional license. It is advisable to retain an attorney before giving any information to your licensing Board in Minnesota.
I have received Allegations against me from my licensing Board. Am I required to respond?
Yes. It is important to provide an appropriate and timely response to any written allegations that have been served against you by your Board. You should be very mindful about what you provide to the Board in writing, as all information you provide will become a part of the permanent record. In order to best protect yourself, you should consult an attorney before providing any response whatsoever to your Board. and or hire an experienced license defense attorney to assist in the response to the Board.
I just received Allegations and I do not have much time to respond. Can I get an extension?
Yes, you may request an extension. The Board does not give licensee's much time to respond the Allegations against them and the Board will grant you an extension, if needed. Do not rush a response to the Board just to get it in on time. Anything you provide the Board should be done thoughtfully and pursuant to advice from an experienced license defense attorney.
I just received Allegations from my licensing Board. Should I inform my employer about the Allegations?
It is important to understand that during this phase of an investigation by your Board the matter is confidential and you are under no obligation to inform your employer about the allegations against you. The only people who will learn about your Allegations at this phase of the investigation are the Board and those who reported you to the Board. There may be some instances where you may wish to discuss the allegations with your employer. However, you should always seek advice from an experienced license defense attorney regarding whether or not you should inform your employer about the allegations against you.
What type of events could trigger an investigation against my license?
What Events Could Trigger an Investigation Against My Professional License in Minnesota?
The Minnesota professional licensing Boards and other government agencies are all complaint driven. An investigation will not be opened against you unless a complaint has been filed against you with your Board. In other words, these Boards and agencies do not go out looking for improper behavior on their own. Complaints are often filed by employers or other mandatory reporters, but may also be filed by a friend or relative. The identity of a complainant remains confidential. Once a complaint is made to a licensing Board they are statutorily required to investigate the matter.
Is the investigation into my professional license confidential?
While a matter is in the investigation phase everything is confidential in Minnesota. Remember that the only people that know about your letter from your licensing Board are the people that you tell. Nothing in the allegations or investigative requests will be released to the public unless or until a disciplinary action is ultimately issued against you. Be mindful about with whom you share information regarding the investigation and the allegations against you.
What are common complaints?:
• Diversion of prescription narcotic medications from the workplace
• Failure to follow wasting procedures for narcotic medications
• Over-use/multiple prescriptions for a prescribed narcotic medication
• Mental health issues that affect work performance
• Physical health issues that affect work performance
• Conviction of a criminal offense such as assault, drunk-driving or fraud
• Neglect of clients or patients
• Departing from minimal standards of acceptable prevailing medical practice
• Failure to meet patient record documentation standards
• Failure to fully assess a patient or client's needs
• Fraudulent billing
• Revealing privileged communications
• False advertising
• Violating professional boundaries with a patient or client, including sexual conduct
• Failure to pay student loans secured by the state or federal government
• Being fired from a job for cause
• Being dismissed from the Health Professionals Services Program (HPSP) for failure to comply with your participation agreement
• Practicing beyond your licensed scope of practice
Can I get a copy of the Board’s file or the original complaint against me? Can I find out who filed the complaint?
No. This information in protected by the Minnesota Data Privacy Practices Act and remains confidential. However, they Board may be willing to provide you with very limited portions of their file, such as your written response or the audio recording of your hearing.
Once the investigation is closed, you are permitted to obtain larger portions of the Board's file, which they will provide to you upon written request. However, they will never disclose the identity of the complainant or provide you with a copy of the original complaint against you. That information will always remain confidential.
Is it really necessary to obtain a lawyer?
Your livelihood is one of the most valuable assets you have and you have worked very hard to obtain your license. You should be mindful that the mission of the Minnesota Licensing Boards is to protect the public, not the licensee (you). It is important that you take any allegations against your license seriously and answer them thoughtfully. An experienced license defense attorney can guide you through this stressful and complicated process, assist you with your written response, prepare you for your hearing, and help you obtain the best possible outcome. An Assistant Attorney General always represents your licensing Board throughout each proceeding, so even more reason that you should hire an attorney. .
What are the possible outcomes of an investigation by the Board into my practice?
Possible outcomes of an investigation include:
1) complete dismissal of the allegations;
2) discipline may be issued against your license (below are some examples of types of discipline that may be issued);
3) suspension of your license for a period of time; 4) revocation of your license.
Types of discipline that may be recommended by the Board include:
1) imposition of a fine,
2) completion of additional education,
3) a requirement of ongoing supervision over your practice,
4) limitation on the scope of your practice,
5) and/or participation in the Health Professionals Services Program (HPSP).
If I am disciplined by my licensing Board, will I ever be able to get a job again?
Although discipline by your licensing Board will become public through your Board's website, you are not the first, nor the last person who will be disciplined by their Board. No one is perfect and you should try not to allow this experience to define who you are as a person, or as a practitioner. Many professionals have been disciplined by their licensing Boards and they have done what they needed to do to improve themselves or their practice and have had successful careers moving forward.
What can I expect if I enroll in HPSP?
HPSP (Health Professionals Services Program) is a monitoring program for health professionals in Minnesota. You can voluntarily self-report yourself, or, sometimes, your licensing Board may require that you do so as part of a discipline against your license. When you present to HPSP, you will be asked to sign a monitoring plan and participation agreement which empowers HPSP to supervise your practice, your mental health and/or your illness, condition, or addiction. Your Participation Agreement will likely be for a term of 1-3 years. If for any reason, you fail to uphold the requirements of your Participation Agreement, Health Professionals Services Program has the discretion to discharge you from the program at any time. And, if you are discharged from HPSP, they will report that information to your licensing Board.
It is always a good idea to consult with an experienced professional license defense attorney prior to self-reporting to HPSP in Minnesota.
What is HPSP (The Health Professionals Services Program) and should I self-report if I have a chemical dependency or mental health issue?
The Health Professionals Services Program is a professionally staffed, confidential program designed to monitor the treatment and continuing care of eligible, regulated health professionals in Minnesota. Just like your professional licensing Board, HPSP is designed to protect the public, not you (the licensee). You should consult with an attorney before self-reporting to HPSP in Minnesota, in order to explore all of your options.
What can I expect if I enroll in HPSP?
Health Professionals Services Program is a monitoring program for health professionals in Minnesota. You can voluntarily self-report yourself, or, sometimes, your licensing Board may require that you do so as part of a discipline against your license. When you present to HPSP, you will be asked to sign a monitoring plan and participation agreement which empowers HPSP to supervise your practice, your mental health and/or your illness, condition, or addiction. Your Participation Agreement will likely be for a term of 1-3 years. If for any reason, you fail to uphold the requirements of your Participation Agreement, Health Professionals Services Program has the discretion to discharge you from the program at any time. And, if you are discharged from HPSP, they will report that information to your licensing Board.
We recommend that you always consult with an experienced professional license defense attorney before self-reporting to HPSP in Minnesota.
What should I do if I have a condition like addiction or an illness that might impact my ability to practice?
If you have illness or addiction that may impact your ability to practice with reasonable skill and safety, it may be a good idea to take a leave of absence from your job in order to assess your ability to practice safely and to obtain any treatment or care you may need to ensure that you are able to do so. Pursuant to the obligations you have to the public and your patients, it is very important that you remove yourself from practice if you have a condition or illness that could negatively impact your practice or ability to practice safely.
Are there any Reporting Obligations for Licensed Professionals?
Minnesota Statutes §148.263 spells out the reporting obligations of Nurse Licensed Professionals.
Subdivision 1. Permission to report. A person who has knowledge of any conduct constituting grounds for discipline under sections 148.171 to 148.285 may report the alleged violation to the board.
Subd. 2. Institutions. The chief nursing executive or chief administrative officer of any hospital, clinic, prepaid medical plan, or other health care institution or organization located in this state shall report to the board any action taken by the institution or organization or any of its administrators or committees to revoke, suspend, limit, or condition a nurse's privilege to practice in the institution, or as part of the organization, any denial of privileges, any dismissal from employment, or any other disciplinary action. The institution or organization shall also report the resignation of any nurse before the conclusion of any disciplinary proceeding, or before commencement of formal charges, but after the nurse had knowledge that formal charges were contemplated or in preparation. The reporting described by this subdivision is required only if the action pertains to grounds for disciplinary action under section 148.261.
Subd. 3. Licensed professionals. A person licensed by a health-related licensing board as defined in section 214.01, subdivision 2, shall report to their board personal knowledge of any conduct the person reasonably believes constitutes grounds for disciplinary action under sections 148.171 to 148.285 by any nurse including conduct indicating that the nurse may be incompetent, may have engaged in unprofessional or unethical conduct, or may be mentally or physically unable to engage safely in the practice of professional, advanced practice registered, or practical nursing.
Subd. 4. Insurers. Four times each year, by the first day of February, May, August, and November, each insurer authorized to sell insurance described in section 60A.06, subdivision 1, clause (13), and providing professional liability insurance to registered nurses, advanced practice registered nurses, or licensed practical nurses shall submit to the board a report concerning any nurse against whom a malpractice award has been made or who has been a party to a settlement. The report must contain at least the following information:
(1) the total number of settlements or awards;
(2) the date settlement or award was made;
(3) the allegations contained in the claim or complaint leading to the settlement or award;
(4) the dollar amount of each malpractice settlement or award and whether that amount was paid as a result of a settlement or of an award; and
(5) the name and address of the practice of the nurse against whom an award was made or with whom a settlement was made.
An insurer shall also report to the board any information it possesses that tends to substantiate a charge that a nurse may have engaged in conduct violating sections 148.171 to 148.285.
Subd. 5. Courts. The court administrator of district court or another court of competent jurisdiction shall report to the board any judgment or other determination of the court that adjudges or includes a finding that a nurse is a person who is mentally ill, mentally incompetent, chemically dependent, dangerous to the public, guilty of a felony or gross misdemeanor, guilty of a violation of federal or state narcotics laws or controlled substances act, guilty of operating a motor vehicle while under the influence of alcohol or a controlled substance, or guilty of an abuse or fraud under Medicare or Medicaid, appoints a guardian of the nurse under sections 524.5-101 to 524.5-502, or commits a nurse under chapter 253B.
Subd. 6. Deadlines; Forms. Reports required by subdivisions 2 to 5 must be submitted no later than 30 days after the occurrence of the reportable event or transaction. The board may provide forms for the submission of reports required by this section, may require that the reports be submitted on the forms provided, and may adopt rules necessary to assure prompt and accurate reporting. The board shall review all reports, including those submitted after the deadline.
WHAT HAPPENS IF I DON'T REPORT A FELLOW LICENSED PROFESSIONAL WHEN I KNOW THEY HAVE DONE SOMETHING WRONG?
Subd. 7. Failure to report. On or after August 1, 2012, any person, institution, insurer, or organization that fails to report as required under subdivisions 2 to 5 shall be subject to civil penalties for failing to report as required by law.
(Minnesota Administrative Rules §6321.0500 REPORTING OBLIGATIONS).
Subpart 1. Institutions. The reporting required of institutions in Minnesota Statutes, section 148.263, subdivision 2, is interpreted to include1
- .resignation in lieu of discharge,
- discharge, suspension, or other forms of discipline of a nurse for failure to carry out the responsibilities of a nurse.
- Examples of actions to be reported include but are not limited to
- dismissal of probationary employees,
- suspensions other than investigatory suspensions, restrictions or limitations of a nurses's practice,
- demotion, and
- discharge from employment.
Subp. 2. Licensed professionals who consult with a therapist. The reporting required of licensed health professionals in Minnesota Statutes, section 148.263, subdivision 3, is interpreted to exclude the professional knowledge obtained in the course of a health professional-client relationship when the client is a nurse and the health professional successfully counsels the nurse to limit or withdraw from practice to the extent required by the impairment.
Medical Drug or Device Injury
Do I need an attorney to make a claim in a class action lawsuit?
You cannot represent yourself in a class action lawsuit. You must obtain a personal injury defense attorney to represent you and file documents on your behalf in a class action lawsuit in Minnesota.
How long will it take for me to get compensated?
Class action trials usually take quite a while from start to finish (1-3 years). Additionally, it can often take even longer for each claimant to receive their award for damages (another 1-3 years). In the most outrageous cases, settlement checks can come in sections over the course of many years (small payments over the course of 20 years).
What is a class action lawsuit?
A class action lawsuit is a lawsuit that is brought on behalf of many individuals who have suffered the same or similar damages due to a single dangerous product. Rather than each individual bringing their own separate lawsuit against the manufacturer, a single action is brought where each individual becomes a claimant. The lawsuit will eventually separate the individual claimants into classes. Each class of claimants will have the most similar claim and amount of damages.
Are there any rules about riding a bicycle?
The Rules of the Road for Minnesota Bicyclists that I should be aware of?
Tere are very strict rules that you should know about when you ride your bike. is found in
Minn. Stat. §169.222 OPERATION OF BICYCLE.;Subdivision 1.
Traffic laws apply.to every person operating a bicycle shall have all of the rights and duties applicable to the driver of any other vehicle by this chapter, except in respect to those provisions in this chapter relating expressly to bicycles and in respect to those provisions of this chapter which by their nature cannot reasonably be applied to bicycles.
Subd. 2. Manner and number riding.
No bicycle, including a tandem bicycle, cargo or utility bicycle, or trailer, shall be used to carry more persons at one time than the number for which it is designed and equipped, except an adult rider may carry a child in a seat designed for carrying children that is securely attached to the bicycle.
Subd. 3. Clinging to vehicle.
Persons riding upon any bicycle, coaster, roller skates, toboggan, sled, skateboard, or toy vehicle shall not attach the same or themselves to any street car or vehicle upon a roadway.
Subd. 4. Riding rules.
(a) Every person operating a bicycle upon a roadway shall ride as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations:
(1) when overtaking and passing another vehicle proceeding in the same direction;
(2) when preparing for a left turn at an intersection or into a private road or driveway;
(3) when reasonably necessary to avoid conditions, including fixed or moving objects, vehicles, pedestrians, animals, surface hazards, or narrow width lanes, that make it unsafe to continue along the right-hand curb or edge; or
(4) when operating on the shoulder of a roadway or in a bicycle lane.
(b) If a bicycle is traveling on a shoulder of a roadway, the bicycle shall travel in the same direction as adjacent vehicular traffic.
(c) Persons riding bicycles upon a roadway or shoulder shall not ride more than two abreast and shall not impede the normal and reasonable movement of traffic and, on a laned roadway, shall ride within a single lane.
(d) A person operating a bicycle upon a sidewalk, or across a roadway or shoulder on a crosswalk, shall yield the right-of-way to any pedestrian and shall give an audible signal when necessary before overtaking and passing any pedestrian. No person shall ride a bicycle upon a sidewalk within a business district unless permitted by local authorities. Local authorities may prohibit the operation of bicycles on any sidewalk or crosswalk under their jurisdiction.
(e) An individual operating a bicycle or other vehicle on a bikeway shall leave a safe distance when overtaking a bicycle or individual proceeding in the same direction on the bikeway, and shall maintain clearance until safely past the overtaken bicycle or individual.
(f) A person lawfully operating a bicycle on a sidewalk, or across a roadway or shoulder on a crosswalk, shall have all the rights and duties applicable to a pedestrian under the same circumstances.
(g) A person may operate an electric-assisted bicycle on the shoulder of a roadway, on a bikeway, or on a bicycle trail if not otherwise prohibited under section 85.015, subdivision 1d; 85.018, subdivision 2, paragraph (d); or 160.263, subdivision 2, paragraph (b), as applicable.
Subd. 5. Carrying articles.
No person operating a bicycle shall carry any package, bundle, or article which prevents the driver from keeping at least one hand upon the handle bars or from properly operating the brakes of the bicycle.
Subd. 6. Bicycle equipment.
(a) No person shall operate a bicycle at nighttime unless the bicycle or its operator is equipped with (1) a lamp which emits a white light visible from a distance of at least 500 feet to the front; and (2) a red reflector of a type approved by the Department of Public Safety which is visible from all distances from 100 feet to 600 feet to the rear when directly in front of lawful lower beams of headlamps on a motor vehicle. A bicycle equipped with lamps that are visible from a distance of at least 500 feet from both the front and the rear is deemed to fully comply with this paragraph.
(b) No person may operate a bicycle at any time when there is not sufficient light to render persons and vehicles on the highway clearly discernible at a distance of 500 feet ahead unless the bicycle or its operator is equipped with reflective surfaces that shall be visible during the hours of darkness from 600 feet when viewed in front of lawful lower beams of headlamps on a motor vehicle. The reflective surfaces shall include reflective materials on each side of each pedal to indicate their presence from the front or the rear and with a minimum of 20 square inches of reflective material on each side of the bicycle or its operator. Any bicycle equipped with side reflectors as required by regulations for new bicycles prescribed by the United States Consumer Product Safety Commission shall be considered to meet the requirements for side reflectorization contained in this subdivision.
(c) A bicycle may be equipped with a front lamp that emits a white flashing signal, or a rear lamp that emits a red flashing signal, or both.
(d) A bicycle may be equipped with tires having studs, spikes, or other protuberances designed to increase traction.
(e) No person shall operate a bicycle unless it is equipped with a rear brake or front and rear brakes which will enable the operator to make a braked wheel skid on dry, level, clean pavement. A bicycle equipped with a direct or fixed gear that can make the rear wheel skid on dry, level, clean pavement shall be deemed to fully comply with this paragraph.
(f) A bicycle may be equipped with a horn or bell designed to alert motor vehicles, other bicycles, and pedestrians of the bicycle's presence.
(g) No person shall operate upon a highway any two-wheeled bicycle equipped with handlebars so raised that the operator must elevate the hands above the level of the shoulders in order to grasp the normal steering grip area.
(h) No person shall operate upon a highway any bicycle which is of such a size as to prevent the operator from stopping the bicycle, supporting it with at least one foot on the highway surface and restarting in a safe manner.
Subd. 6a. Operator age.
No person under the age of 15 shall operate an electric-assisted bicycle.
Subd. 7. Sale with reflectors and other equipment.
(a) No person shall sell or offer for sale any new bicycle unless it is equipped with reflectors and other equipment as required by subdivision 6, paragraphs (b) and (e) and by applicable regulations for new bicycles prescribed by the United States Consumer Product Safety Commission.
(b) Notwithstanding paragraph (a), a new bicycle may be sold or offered for sale without pedals if the bicycle otherwise meets the requirements of paragraph (a).
Subd. 8. Turning, lane change.
An arm signal to turn right or left shall be given continuously during the last 100 feet traveled by the bicycle before turning, unless the arm is needed to control the bicycle, and shall be given while the bicycle is stopped waiting to turn.
Subd. 9. Bicycle parking.
(a) A person may park a bicycle on a sidewalk unless prohibited or restricted by local authorities. A bicycle parked on a sidewalk shall not impede the normal and reasonable movement of pedestrian or other traffic.
(b) A bicycle may be parked on a roadway at any location where parking is allowed if it is parked in such a manner that it does not obstruct the movement of a legally parked motor vehicle.
Subd. 10. Bicycle events.
(a) Bicycle events, parades, contests, or racing on a highway shall not be unlawful when approved by state or local authorities having jurisdiction over that highway. Approval shall be granted only under conditions which assure reasonable safety for all participants, spectators and other highway users, and which prevent unreasonable interference with traffic flow which would seriously inconvenience other highway users.
(b) By agreement with the approving authority, participants in an approved bicycle highway event may be exempted from compliance with any traffic laws otherwise applicable thereto, provided that traffic control is adequate to assure the safety of all highway users.
Subd. 11. Peace officer operating bicycle.
The provisions of this section governing operation of bicycles do not apply to bicycles operated by peace officers while performing their duties.
Copyright © 2017 by the Revisor of Statutes, State of Minnesota. All rights reserved.
When and why would I bring a wrongful death claim in my loved one's death?
What is required to bring a wrongful death claim in Minnesota?
The following basic elements must be present:
1. A person dies.
2. The person's death was caused by the wrongful act or omission (negligence) of any person or corporation.
3. A trustee must be appointed by the court to pursue the case. Recovery may include compensation for the economic loss to the surviving spouse and next of kin resulting from the death.
4. Once the claim is resolved, the court then determines the proportionate pecuniary loss of the next of kin entitled to the recovery and calculates the distribution of the recovery.
Why must a Trustee be appointed by a Judge in a wrongful death claim?
Appointment of Trustee: A district court judge must appoint a trustee who represents all the next of kin and will sue out the case against the wrongdoer. The following steps must be followed:
1. All potential next of kin are identified and contacted and they usually agree on the person to serve as trustee. The Trustee should be a person the jury and the next of kin can trust to properly invest and distribute any recovery in a fair and impartial manner for all the next of kin.
2. Pursuant to Minnesota Rules of Civil Procedure 144, a petition must be prepared by the attorney seeking approval from the district court to have the agreed upon person appointed trustee.
3. All heirs should receive notice of the Petition and the hearing date. If there is no dispute as to the appointment of the trustee, the heirs will sign a Waiver of Notice for hearing and bond and there may be no need to have a hearing. The decision whether to have a hearing is within the discretion of the Court.
4. The Trustee must sign an oath to faithfully perform the duties of trustee and represent all of the next of kin.
5. The petition, which is signed by the petitioning heir and the petitioning trustee, is forwarded to the court along with a proposed order appointing a trustee.
How does a lawsuit get started if there has been a wrongful death?
A Lawsuit MUST be brought by a Trustee who has been appointed by a Judge: The appointed Trustee representing all the next of kin, starts the lawsuit against the person or company at fault.
1. The Trustee must hire an attorney to represent heself or himself..
2. The attorney begins the case on behalf of the Trustee against the at fault party by serving a summons and complaint against the at fault person.
3. The Trustee represents the spouse and next of kin who have a claim for pecuniary loss. This includes all the decedent's children, parents, siblings of the decedent, grandparents and descendants of grandparents. Parents may recover for the wrongful death of a child even if the child is emancipated and/or married. If the surviving spouse remarries during the case, it is not relevant to their recovery.
4. If the at fault person has died, the Trustee sues their estate.
Are there time limitations involving a wrongful death lawsuit?:
The time within which to bring a claim for wrongful death is 3 years from the death and no longer than 6 years from the incident. However, if a possible dram shop claim exists, the time limit in which to bring a claim is two years for the date of the incident. A notice must be sent to the establishment where the individual was served alcohol within 240 days of hiring the attorney.
How does the Trustee decide how to divide up the award?
If there is a settlement of the case, the Trustee will bring the amount of the settlement and the amounts to be paid to each next of kin to the Judge who must approve it. (MRCP 114). The court hearing the petition for disbursement shall approve, modify, or disapprove the proposed disposition and shall specify the persons to whom the proceeds are to be paid.
The petition for distribution will be heard upon notice, given in form and manner and upon such persons as may be determined by the court, unless waived by all next of kin or the court.
The court by order will direct distribution of the money to the persons entitled thereto by law pursuant to JIG 91.75
How much time do I have to file a wrongful death claim in Minnesota?
The time you have to file a claim is known as the statute of limitations. In Minnesota, the statute of limitations for a wrongful death claim is 3 years from the date of injury (death). It is very important that you speak with a personal injury defense attorney immediately after the death of a loved one if you believe that their death was caused by the negligence or fault of another to ensure that you do not miss the statutory timeline requirements to bring a wrongful death claim in Minnesota.
What are the steps that are followed in order to bring a lawsuit?
How does a lawsuit work?
In our society, there will always be disagreements, disputes, and injuries that are often the fault of someone else. We are able to bring our issues before judges and juries to be settled by our equals. There are many complex legal principles that can give individuals the ability to get fair compensation for their injuries.
What has to be done to start a lawsuit?
In order to start a civil lawsuit, the plaintiff will hire an attorney to file the lawsuit. The lawyer must investigate the claim and determine whether it will be a legitimate claim. The lawyer will write a summons and the complaint which will list all the facts and the law that defendant is alleged to have violated. This is served on the defendant who then has 20 days to answer the complaint. At any time after serving the defendant with the summons and complaint, the case can be filed with the court and a judge will set up a scheduling order giving deadlines within which all the discovery (investigation by each party) will be completed and a trial date.
What does the word Discovery mean in a lawsuit?
The plaintiff's lawyer will write up questions called interrogatories asking for specific information that relates to the allegations written about in the complaint and requests for production of documents asking for specific writings that are in the possession of the defendant and any existing pre-recorded statements. After receiving the answers to all of the above, if satisfied with the answers, the lawyers will then set up depositions for the parties and witnesses. A deposition is a recorded interview under oath. Each lawyer will ask questions of the witness who is attending and the testimony is taken down by a court reporter.
What is Mediation and when is it used?
Once the discovery is complete and all the facts of the case are known, the judge will require that the parties mediate their case with a mediator. Approximately 85% of cases settle with a mediator. A mediator is a person trained in the skill of trying to resolve the complicated legal issues between the parties to avoid the expense and stress of trial. If the process of mediation does not settle the case, then we prepare for trial.
How does a Trial work?
If the case is not resolved through the mediation process, the case will go to trial and the lawyer must prove her client's case by the "preponderance of the evidence." This standard requires a burden of more than half, or 50% +1. The burden of proof in civil matters is much lower than in criminal matters, where the burden of proof is "beyond a reasonable doubt." After the jury is chosen, both the Plaintiff and the Defendant's attorney gives the opening statement. Next, the Plaintiff puts on her/his case by calling witnesses who testify for the Plaintiff. Such witnesses would include a doctor, a family member, friends, eye witness to the accident and the Plaintiff. After the Plaintiff's case is concluded, the Defendant presents her/his case with similar type witnesses. At the end of the trial, the attorneys make their closing arguments. At this point, the jury is told to meet and deliberate and come up with a decision as to who wins. This decision is known as the verdict.
For more information about the principles that are the foundation upon which our trial system is built, please see these additional F&Qs found on the Lord + Heinlein website.
1. The Role of the Plaintiff's Civil Trial Lawyer
2. Common Law vs. Statutory Law
3. How Criminal Laws Differ From Civil Laws
How has tort reform affected the amount of money a plaintiff wins from a jury verdict?
How has Tort Reform affected trials in Minnesota?
The purpose of Tort Reform is a way to lower the amount of money a Plaintiff can take home after a trial. Minnesota Tort Reform laws are a model for the country and can significantly negatively impact the amount of compensation awarded by a jury to an injured party. The following are different laws passed in the spirit of tort reform:
1. Loser Pays All – Minn. Stat. 549.01
Provides the right to recover costs as a "prevailing party (winner)." "The prevailing party (plaintiff or defendant) shall be allowed reasonable disbursements paid or incurred."
2. Rule 68 Offer of Judgment – Minnesota Rules of Civil Procedure 68
Defendants can make a formal written Offer of Judgment or Settlement to the Plaintiff, pursuant to Civil Procedure Rule 68 in order to settle the case. The Plaintiff can refuse the Offer Of Judgment and choose to go to trial. However, if she/he wins at trial but the jury award, after the deductions for comparative fault and the other collateral sources results in an amount less than the Offer of Judgment/Settlement Offer made to the Plaintiff, the Plaintiff will collect nothing and in fact will be forced to pay to the Defendant all the Defendant's costs/expenses for the case.
3. Collateral Source Deductions – Minn. Stat.548.251
Money paid by health insurance to cover the medical care of an injured person and/or wage loss payments from disability insurance of an injured person must be deducted from the jury award.
4. Minnesota Health Insurance Deduction – Minn. Stat. 62A.095, Subd. 2
A special Minnesota law allows the Plaintiff to not re-pay health insurance benefits that have been paid for their medical if the individual has not been "fully compensated" by the verdict. The issue of being "fully compensated" is another argument the attorney must make with the insurance company on behalf of their client.
4. Comparative Fault – Minn. Stat. 604.01
If a jury determines the plaintiff' had some fault in a car accident, for instance 15%, that percentage must be deducted from the jury award. Thus, if the jury awards the plaintiff $100,000, the judge would have to deduct 15% from the $100,000 which equals $85,000 as the gross verdict. If the plaintiff's fault is 51% or more, the plaintiff loses.
How are Criminal Trials different than Civil Trials?
Criminal Laws are created by the legislature to prevent and deter citizens from committing criminal acts. The legislature has passed several laws to punish citizens who commit crimes or injure others while driving recklessly or while intoxicated. The following demonstrates the steps covered in criminal law enforcement:
1. A person commits an act that falls within the criminal laws such as driving while intoxicated and injures another person.
2. Law enforcement (police officer) apprehends the criminal.
3. The alleged criminal hires an attorney or a public defender to defend his/her rights.
4. The Prosecutor (County Attorney) must prove the alleged criminal's guilt to a jury "Beyond A Reasonable Doubt" standard.
5. A jury decides guilt or innocence "Beyond a reasonable doubt."
6. A judge manages the trial and if the defendant is found guilty, sentences the criminal to jail/prison and maybe sets a fine.
7. The Department of Corrections (Prison Administration) carries out the punishment by incarcerating the individual in a prison or jail for the length of the term.
Civil Laws are also created by the legislature in order to protect the property rights (which includes bodily injury) of its citizens. For instance, a person who was injured by a drunk driver can sue that drunk in a civil case and under some circumstances can also sue the bar that illegally served that drunk driver.
1. A victim (plaintiff) can hire a trial attorney to sue the person (defendant) who caused their harm or the death of a loved one . The Plaintiff's attorney must prove up the case to the jury "by a preponderance of the evidence." That means the jury must find the defendant 51% or more at fault.
2. The defendant hires an attorney to defend him/her. If the defendant has insurance, the insurance company will hire an attorney to represent him/her.
3. A judge or a jury will hear the civil case and will decide by a "preponderance of the evidence" if the defendant was at fault, and if so, how much money the defendant will be required to pay to the victim.
4. Money Damages Only. In a civil case money damages are the only penalty. Jail and prison are NOT an option in a civil case.
Burden of Proof: Criminal vs. Civil
CRIMINAL-In a criminal case, the state's attorney must prove the defendant is guilty beyond a reasonable doubt. If after hearing all the evidence of the case, the jury is not convinced beyond a reasonable doubt that the defendant has committed the crime he/she is accused of, they cannot convict. This is a much higher burden of proof standard than is needed in a civil case because the rights, freedom, life and reputation of the defendant are at stake.
CIVIL-On the other hand, in a civil case, the plaintiff's attorney must prove up the case against the defendant by a preponderance of the evidence. If the evidence shown to the jury proves that the defendant is 51% or more negligent (imagine a scale of justice with the tipping of the scale by the weight of a feather), the jury must find against the defendant.
Can you explain the difference between the burden of proof needed at criminal trials vs civil trials?
The evidence that is needed in a criminal trial is much greater than what is required in a civil trial.
CRIMINAL-In a criminal case, the state's attorney must prove the defendant is guilty beyond a reasonable doubt. If after hearing all the evidence of the case, the jury is not convinced beyond a reasonable doubt that the defendant has committed the crime he/she is accused of, they cannot convict. This is a much higher burden of proof standard than is needed in a civil case because the rights, freedom, life and reputation of the defendant are at stake.
CIVIL-On the other hand, in a civil case, the plaintiff's attorney must prove up the case against the defendant by a preponderance of the evidence. If the evidence shown to the jury proves that the defendant is 51% or more negligent (imagine a scale of justice with the tipping of the scale by the weight of a feather), the jury must find against the defendant.
What is the difference between "Common Law" and "Statutory Law"?
Common Law is law made by Judges; Statutory Law is made by Legislatures.
For hundreds of years dating back to the early Justice system of England, the courts have developed what has been called the "Common Law." Early in England's history, judges had to decide a legal case according to what they felt most people (the common person) would think was the correct decision. To find out what most persons thought was the right decision, the judges followed the customs of the community and the common beliefs of the people.
In deciding a particular case, the judge would look to previously decided cases with the similar issues and facts. The earlier decision was given precedent or priority and closely followed by the second judge in making a decision on the case at issue. When a large number of judges decided the same kind of case or question of law in the same way, the decision became the "common law." It could only be changed when the customs and beliefs of the community changed.
Lawyers learned common law by reading written decisions in which judges gave reasons for their decisions. By reading many decisions of the same kind, a lawyer could see how a law developed and how to apply that law to the facts of the case presented to the judge.
Statutory law is made by the Government both federal and state. In developing state laws, most state legislatures meet every year to consider passing new laws that are considered for new and emerging problems. In the current justice system, not only are Judges often asked to apply "Common Law" to a case but they are also asked to interpret "Statutory Law" and to apply it to a variety of fact situations. Many of the laws that are passed are then used as a basis for bringing a lawsuit and it is at that time that the Judge is asked to interpret the meaning of the statute to the facts of the particular case.
Why do we need plaintiff's lawyers?
Some Law Makers Want To Pass Laws Restricting Justice
Although we are living in a time of great prosperity and freedoms, American society is also experiencing a trend where juries seem to be more conservative in awarding jury verdicts to injured persons. Some political leaders are proposing the passage of laws in our Congress and State Legislatures attempting to limit the ability of the injured persons to seek compensation for the wrongs they have experienced as a result of the negligence of another and to limit the time in which to bring a claim.
Protection Is Leaning Towards the Big Companies and Drug Makers
Much of this effort has been made to protect big pharmaceutical companies from liability for promoting a drug that has not been adequately tested. Some are protecting big insurance companies who keep trying to cast doubt on the role of trials and justice in order to protect their incredible profits.
In Minnesota, large jury verdicts are very rare. In fact, of the cases that were tried in Hennepin and Ramsey Counties in 2008, 100% of Medical Malpractice jury verdicts found in favor of the defendants. In 2008, personal injury trials were won by only 57% of the plaintiffs.
Justice Requires Skill and Hard Work by All Lawyers
Justice is won through the hard work of the attorneys on both sides. According to the ethical rules required by the Rules of Professional Responsibility, lawyers are called upon to preserve the justice system and "as an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." As a result of this requirement, many lawyers are misjudged for vigorously defending their client, as though the lawyer were unethical in the mere representation of the client rather than carrying out an ethical duty.
Skill of the Trial Lawyer
The trial lawyer's role becomes important in preserving justice. The role requires incredible effort and skill. The lawyer must present her/his client's case to a judge or a jury with the skill that only experience can bring. First of all, she/he must work hard to gather all the facts of the case.
She/he must understand the technical aspects of the case and all the legal issues that will be presented to a jury. For instance, in a personal injury case, the lawyer must understand the physical/medical mechanics of the injury and be familiar with and understand all of the client's medical records. She/he must be able to explain to the jury the mechanics of the crash.
Gathering Evidence Requires a Financial Commitment
The lawyer must commit her/his financial resources by paying for the costs of presenting the case to a jury which can cost several thousand dollars. It is her/his responsibility to pay the costs of bringing the experts to testify at the trial such as the treating doctor who will explain the extent of the injuries, an accident reconstructionist who will explain how the crash occurred, an engineer who will describe the mechanical forces that caused the injury to the plaintiff, and a toxicologist who will explain how the behavior of the drunk driver was affected by the level of alcohol as measured immediately after the crash. The costs are re-paid to the lawyer if the case is successfully resolved.
Communication with the Jury
The lawyer must understand the psychology of the jury pool and be able to skillfully inquire of and perceive the prejudices held by jurors so that she/he can eliminate those jurors who would not be able to put away their prejudices against her/his client when deciding the case.
The lawyer must also be able to speak to a jury in such a way as to hold their attention and present the evidence and the law to the jury so that they may see clearly the merits of her client's case. She/he must be able to argue with passion to the jury proving her/his case to the jury "by a preponderance of the evidence" (civil case) or "beyond a reasonable doubt" (criminal).
Trial Lawyer's Efforts Have Benefited Us All By Producing Safer Products and Services Through Their Trial Efforts
Generally speaking, plaintiff's lawyers have been in the lead in producing product safety. Most of the advancements in the safety of consumer products have come about not because of government regulation but because of the efforts of lawyers to make it more economical for big companies to make safe products. The FDA is supposed to be America's protector against poorly designed medical devices and tainted pharmaceutical drugs.
The Food and Drug Administration Inadequately Supervises Products for Their Safety to the Consumer
Recently, Congress investigated the effectiveness of the FDA and were told by the agency's chief counsel, Peter Barton Hutt, that the agency was "barely hanging by its fingertips." The agency does not have enough money or enough skilled scientists to do its job. They do not have enough staff or adequate computer systems to conduct timely inspections of foreign plants that make drugs, medical devices and food products. This proves that just because they are the FDA, their approval of a drug or device may not have been adequately researched.
The egregious importer is China which has been a source of very dangerous goods in the last few years. Recently China produced a leukemia drug that was somehow contaminated with another cancer drug during production. When the product was injected into the patients' spinal area, it caused paralysis and other side effects. Congress has continually added new burdens to the agency but without providing enough money and personnel to carry out the tasks.
Plaintiff's Trial Lawyers Have Become the Protectors of Consumers from Bad Products
Manufactures are corporations and motivated by financial profit. They are not designed to have and do not have a conscience. They will take shortcuts and try to get their product to market as quickly as possible in order to limit their expenses without regard to the possible danger of the product and the human cost. Because the FDA, by its own admission, cannot protect the public from unsafe drugs, medical devices and food products the only way to hold these manufacturers accountable is by making it less profitable to make an unsafe product than it is to make a safe product. This has become the role of the trial lawyer.
Trial Lawyers Are Accomplishment in Protecting Consumer Safety
Consumer victories in the areas of hospital care, medical treatment, highway and automobile design, workplace safety, and safer products have come about because of the dedication of a plaintiff's lawyer who was willing to risk assets, energy and determination on behalf of the plaintiff to make America a safer place to live.
Healthcare Fraud Defense
What are the first things to do if you receive a notice or complaint from a government entity?
1. Write down the date by which you must respond.
2. Call us as soon as possible at 612-333-LORD (5673) so we can meet and advise you of your legal rights.
3. Bring to the meeting a copy of the notice or complaint and any documents you think would assist in defending you.
What are the risks if we do not answer the notice or complaint?
1. The government has set up very severe penalties for violating the False Claims Act. The penalties can be as high as $11,000 per single claim (a single claim is considered a one-time billing of one patient) plus treble damages and the assessment of attorneys fees.
2. If found guilty, the provider can be excluded from Medicare and Medicaid programs either temporarily or completely.
3. Cases are usually brought to the government by an employee of the accused company in the form of a 'Whistle blower" or "Qui Tam" lawsuit. Because they are employees of the company, they have the most knowledge of the company that is violating the False Claims Act.
4. It is against the law to fire someone you suspect to be the "Whistle Blower."
Call us at 612-333-5673. We are ready to help.
What will you do for us if we receive a complaint from the government?
1 We listen to your side of the story.
2 We gather the unique facts of your case.
3 Once we understand the issues, if needed, we can assemble a multi-disciplinary team of lawyers and consultants to collaborate on how best to respond and defend your particular issue, such as:
a. Compliance consultants who can assist in evaluation of proper documentation, supervision, and billing issues
b. Document/data analysists who can gather thousands of documents and scan, organize and analyze
c. HIPAA compliant computer technologists
d. Tax and accounting consultants
e. Criminal defense lawyers
What are examples of false claims submitted by health care providers?
EXAMPLES OF CLAIMS SUBMITTED BY HEALTH CARE PROVIDERS THAT ARE CONSIDERED TO BE FALSE CLAIMS:
1. Billing for services not rendered
2. Duplicate billings for the same services
3. Altering claims
5. Reporting false employment hours and providing false time sheets
6. Duplicate claims for a single service
7. Unbundling (submitting bills in a fragmented fashion in order to maximize the reimbursement for various tests or procedures
8. Excessive services (providing services that are not needed by the patient)
9. Medically unnecessary services
11. Upcoding of billings (billing for an item that was more than was needed)
12. Overpayments that are retained, or overcharging for medical procedures and treatments.