Category Archives: Personal injury

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Prior to filing an action for personal injuries or medical malpractice, a settlement package may be prepared and delivered to the defendant’s insurance company.  A settlement package may aid the insurance in settling the case prior to litigation. The settlement package should include medical bills and records, a copy of the accident report, copies of any photographs depicting property damage or personal injuries, the personal story of the injured party and any other information on damages sustained.

If an insurance company makes any settlement offer, the attorney is ethically obligated to convey the offer to the client.  The attorney should then explain whether the offer is reasonable and should be accepted or rejected.  The ultimate decision as to whether to reject or accept the offer belongs with the client.

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The recovery of damages in a personal injury action may be subject to what are known as  “reimbursement liens” or “subrogation liens” brought by the insurance provider of the injured party.  Such liens are especially common when the insurance provider is governed by ERISA. ERISA is the Employee Retirement Income Security Act of 1974, 29 USC 1001, et seq. which governs most employee health plans.  Current laws allow ERISA governed insurance providers to be reimbursed for medical cost paid through its insurance coverage. However, some cases stand for the proposition that the injured party should be “made whole” prior to reimbursing the provider.

The case of Barnes v. Indep. Auto. Dealers Ass’n of Cal. Health & Welfare Benefit Plan” the court held that “it is a general equitable principle of insurance law that, absent an agreement to the contrary, an insurance company may not enforce a right to subrogation until the insured has been fully compensated for her injuries, that is, has been made whole.” Barnes , 64 F.3d 1389, 1395 (9th Cir.1995).

Mississippi courts recognize the “Made Whole Doctrine”.  In the case of Hare v. State, the Court defined it as “the general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated.” Hare, 733 So.2d 277 (Miss.1999).

If the defendant has a limited policy, and the plaintiff is not going to be made whole by the settlement, the argument can be made that to the settlement does not fully compensate your client for their injuries or damages.  If the plane language of the contract states otherwise, such arguments are void.  However, if the plan language is silent on this issue and does not waive this defense, this argument should be available.

 

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In personal injury cases, the Plaintiff most prove that he or she suffered damages as a result of the defendant’s negligence.  Damages are most often proven through the use of medical bills as evidence at trial.  However, Mississippi courts require that the records be authenticated prior to being admitted as evidence.

Mississippi Rule of Evidence 803(6) provides that business records may be admitted at trial. However, for the records to be admissible, the rule requires that the custodian or ” other qualified witness” testify to their authenticity. M.R.E. 803(6). Otherwise, the document must be self-authenticating pursuant to Rule 902(11). M.R.E. 803(6). For a document to be self-authenticating, it must include a ” written declaration under oath or attestation” from a custodian or other qualified witness that meets the authentication requirements of Rule 803(6). M.R.E. 902(11).  Rhoda v. Weathers, 87 So.3d 1036 (Miss. 2012)

A “written declaration” or “oath” from the records custodian may come in the form of an Affidavit signed and notarized.  Once the affidavit is determined to be sufficient, the records will be allowed into evidence.

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One ground upon which a lawsuit may be dimissed is that of forum non conveniens.  A defendant may present arguments that the venue in which the lawsuit was filed is improper due to lack of access to witnesses and evidence.  In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:

(i) Relative ease of access to sources of proof;

(ii) Availability and cost of compulsory process for attendance of unwilling witnesses;

(iii) Possibility of viewing of the premises, if viewing would be appropriate to the action;

(iv) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his remedy;

(v) Administrative difficulties for the forum courts;

(vi) Existence of local interests in deciding the case at home; and

(vii) The traditional deference given to a plaintiff’s choice of forum. Alston v. Pope, 112 So.3d 422 (Miss. 2013)    Miss.Code Ann. § 11-11-3(4)(a) (Rev.2004).

 

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When bringing an action against a party, an important consideration is where to file the lawsuit.  A lawsuit will only be heard if it has been filed in the proper venue, or county.

Mississippi statute regarding proper venue provides that “Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant [1] resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.”  Miss.Code Ann. § 11-11-3(1)(a)(i) (Rev.2004).  In interpreting the venue statute, Mississippi Courts “specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” Hedgepeth v. Johnson, 975 So.2d 235 (Miss. 2008) citing Medical Assurance Co. of Mississippi v. Myers, 956 So.2d 213 (Miss. 2007).

 

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Before initiating medical malpractice litigation, the attorney should give the treating physician’s insurance carrier an opportunity to settle.  The attorney will prepare what is commonly referred to as a demand package (also referred to as a settlement package, demand, or demand letter).

The demand package consists of a written brief that includes (i) a concise statement of when and how the malpractice occurred; (ii) a thorough explanation of the theory of how the other party was negligent (specifically addressing any weaknesses); and (iii) a summary of damages (e.g. related injuries, prior related medical bills associated with those injuries, pain and suffering, cost estimate of necessary and related future medical care); and (iv) the settlement amount demanded.

Attached to the demand packet, the following exhibits should be included:

(a) medical reports; (b)  photos of disfigurement; (c) photos of the client (before the injury, during treatment, and after treatment has completed); (d) medical records (including doctor’s notes and diagnostic imaging results); (e) witness statements; (f) pay stubs / income tax returns, if making a lost-wages claim; and (g) the appropriate jury instructions (that would apply if a lawsuit were to be filed).

A well prepared demand packet brief will also cite case law and their application to the facts

 

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Any claim for damages for the acts or omissions of a governmental entity or its employees must be brought pursuant to the Mississippi Tort Claim Act (“MTCA”). Miss. Code Ann. § 11-46-7; City of Jackson v. Sutton, 797 So. 2d 977 (Miss. 2001). Governmental entities are the state and its political subdivisions, including counties and municipalities. The term “employees,” as used in the MTCA, includes physicians employed by the University of Mississippi Medical Center and certain physicians under contract to state health boards or local jails. Miss. Code Ann. § 11-46-1. Governmental entities are responsible for defending and indemnifying their employees against claims under the MTCA. § 11-46-7. Notice of claim must be given under the MTCA within one year after the date of the actionable conduct. Miss. Code Ann. § 11-46-11.

In the case of Barnes v. Singing River Hospital System, the Mississippi Supreme Court adopted a discovery rule for the accrual of a cause of action.  733 So. 2d 199 (Miss. 1999).  However, the Court requires that the claimant “exercise reasonable diligence” in order to take advantage of the rule. Blailock v. Hubbs, 919 So. 2d 126, 131 (Miss. 2005). Total damages for all claims arising out of one occurrence are capped under Miss. Code Ann. § 11-46-15. Limits are $50,000 for claims accruing between July 1, 1993, and July 1, 1997; $250,000 for claims accruing between July 1, 1997, and July 1, 2001; and $500,000 for claims accruing thereafter. There is no liability under the MTCA for punitive damages or attorneys’ fees. Id. Governmental entities may purchase excess liability insurance for amounts above these limits, thereby waiving immunity to the extent of such excess liability coverage. Miss. Code Ann. § 11-46-17(4).

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Damages in Mississippi have a cap of $500,000 on non-economic damages in medical malpractice cases. Miss. Code Ann. § 11-1-60. The Mississippi Supreme Court has yet to rule on the constitutionality of this statute. The effective date of the cap remains uncertain. Much of the 2002 tort reform act is applicable to actions filed on or after January 1, 2003, but the section establishing the cap indicates that it applies to actions filed on or after passage of the bill, which was approved October 8, 2002. Id. The limited authority available supports the earlier effective date. The cases of Buchanon v. Mariner Health Care Management Co., No. Civ.A. 303CV302WS, 2006 WL 1195579 (S.D. Miss. April 28, 2006); Bowen v. South Coast Family Physicians, PLLC, No. C102-00508(1), 2006 WL 2945591 (Miss. Cir. May 26, 2006) seem to support the proposition that actions filed on or before October 8, 2002 are applicable to caps.

Prior to the law change, the definition of non-economic damages excluded damages for “disfigurement,” but this exception was removed through an amendment applicable to actions filed on or after September 1, 2004. The amendment clarified that the cap applies to an entire claim, not separately for each defendant. § 11-1-60. Punitive damages are limited to two percent of net worth in cases filed on or after September 1, 2004, . (There is a schedule of lower limits for defendants worth more than $50 million.) Miss. Code Ann. § 11-1-65 

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 Before the elimination of joint and several liability, joint tortfeasors or wrongdoers were afforded a right of contribution, with the amount of each tortfeasor’s liability in contribution determined by the tortfeasors’ relative degrees of fault. A right of contribution still exists for those whose liability is joint and several because they took part in a common plan to commit a tortious act. Miss. Code Ann. § 85-5-7(4)