Archives for November 2017

Filing a Lawsuit Against an Uninsured Driver

I filed a lawsuit against what appears to be an uninsured driver this weekend. The Jefferson County Clerk has set it up so I can file a Complaint, the document that starts a lawsuit electronically from my computer. However, the filing fee for a lawsuit tends to cost me about $198 for each lawsuit filed with the Jefferson Circuit Court. The question is did I waste my money filing a lawsuit against an uninsured driver?

According to the Insurance Information Institute, about 11.5% of Kentucky motorists were, in violation of Kentucky, driving without insurance on their automobile. For Indiana, the rate was closer to 16.7%. https://www.iii.org/fact-statistic/facts-statistics-uninsured-motorists. So when a car accident or a motorcycle wreck occurs, one of the first questions a personal injury attorney has to deal with is whether the at-fault driver, or the vehicle they were operating, was insured.

The easiest way to find insurance coverage on an at-fault driver is hope that the police report has the proper insurance company listed. If that does not work, I will typically run the license plate of the at-fault vehicle with the Jefferson County Clerk. The Clerk can provide me with the insurance company and policy number the last time that vehicle was registered.

As a last resort, I will send the driver and owner of the at-fault vehicle a letter asking for their insurance information and threatening to file a lawsuit if they do not cooperate. The problem is filing a lawsuit against an uninsured driver may not be worth the time and expense involved.

Recall that a Judgment is really just a piece of paper that says someone owes you money. So, in essence, a Judgment against someone can be worthless if they have no assets to collect it against or if they can bankrupt that Judgment by filing Bankruptcy proceedings. So for the personal injury suits I filed, it could be that we won’t even recover the filing fee much less the value of the client’s personal injury claim. Granted, in Kentucky, K.R.S. 187.410 allows me to revoke someone’s driving privileges if the unpaid Judgment relates stems from a car wreck. However, if the at-fault driver files Bankruptcy, the suspension, and my client’s Judgment, is dissolved.

Nevertheless, I believe this instance justified a personal injury lawsuit. My injured client had an initial Emergency Room bill in excess of $19,000 and he may not have had uninsured motorist coverage either. As a result, unless I can find insurance coverage on the at-fault driver, my client really has no source to recover his pain and suffering claim from.

However, in this instance, my first goal is not to recover the value of his personal injury but rather, to keep my client from owing a large amount of medical expenses for a car wreck that was not his fault.; to do that, I’m going against the odds and hoping that filing a lawsuit against an uninsured driver will discover insurance coverage not readily apparent.

So what’s my fallback position(s) for everything? If all else fails, I will have to use health insurance to pay the medical bills. My client appears to be qualified for Medicaid after the car wreck occurred. While Medicaid will have a right to recover whatever medical expenses they pay out through what is known as subrogation claim or a right of reimbursement, they can only recover the amount that is actually paid to satisfy the $19,000 medical expense. My hope is that the amount Medicaid seeks to recover will be about one-third of the $19,000 expense. This way, I can reserve my client’s no-fault coverage of $10,000 and use that no-fault, a.k.a. as PIP coverage, to satisfy Medicaid’s subrogation claim.

Yes, in this worst-case scenario, regardless of the personal injury lawsuit, the client can not recover any more towards the value of his personal injury because the at-fault drive was uninsured and he did not purchase uninsured motorist coverage before the car wreck. However, in Kentucky, 99% of the time you are entitled to no-fault benefits of at least $10,000 as long as the car wreck happened in Kentucky and you were not driving a vehicle you owned that was uninsured.

As a result, this no-fault coverage may be the only insurance coverage that exists for this car wreck. Consequently, we have to stretch that $10,000 in no-fault coverage in every way possible so that the client, while uncompensated for his personal injury claim, will not owe medical bills for a car wreck that he did not cause.

At the end of the day, filing a lawsuit against an uninsured driver at least provides valuable information to determine my client’s best options.

Seat Belt Safety Laws

One of the leading causes of death among those between the ages of 1 and 54 in the United States is motor vehicle crashes, and one of the most effective ways to reduce injuries and save lives is the use of a seat belt.

All 50 states have some form of seat belt law, be it a primary offense in which a police officer can pull someone over for him/her or passengers not being properly restrained or a secondary offense in which an officer cannot pull someone over solely for the offense of not wearing a seat belt, however, if pulled over for another citable violation and unrestrained, the officer can issue a ticket for not wearing a seat belt.

Currently in 18 of the 50 states, the seat belt law is considered a secondary offense with the exception of Colorado, which although is a secondary offense state for adults, children not properly restrained is a primary offense with a much larger fine. New Hampshire is the only state not requiring adults to wear seat belts, however, they do have a primary child passenger safety law covering anyone under 18. All other states have a mandatory seat belt use law for drivers and front seat passengers.

We’ve all met that person who knew of someone whose life was spared because they were NOT wearing a seat belt, however, the chances of this happening is slim to say the least! One study from 2002 estimated that 4,200 lives could be saved each year if 90% of the population in the United States wore seat belts. There are rare instances when a seat belt can cause harm.

A friend of mine who is an ICU nurse even had a pediatric patient with a liver laceration following an automobile accident with a lap belt, however, this was not supported by a shoulder strap and injuries sustained from wearing a seat belt are generally surface bruises and/or abrasions and significantly far less severe than injuries that may have been sustained from not wearing a seat belt.

According to the National Highway Traffic Safety Administration (NHTSA), seat belts have saved roughly 300,000 lives in the United States since 1975.

Seat belts were invented in the mid-19^th century by an English engineer named George Cayley, however, the first U.S. patent was granted to Edward Claghorn of New York on February 10, 1885. Motor Vehicle Safety Standard enacted a federal law on January 1, 1968 that required all vehicles with the exception of buses to be fitted with seat belts in all designated seating positions. The world’s first seat belt law was in 1970 in Victoria, Australia, however, in the United States the first state to enact primary enforcement seat belt laws was New York in 1984. By July of 2010, 31 states including the District of Columbia had primary seat belt use laws while 18 states had secondary enforcement laws.

One study found that the use of seat belts in primary belt law states averaged 88% and was less in states with weaker enforcement laws. Studies have also been conducted by the Centers for Disease Control and Prevention and have found increased belt usage in primary belt law states and decreased fatalities in these states as well. Overall, serious injuries and fatalities are reduced by wearing a seat belt, and unless you are an adult in New Hampshire it is the law in one form or another so buckle up!

This article is provided by the Desmond Law Office, Louisville, Kentucky. We handle accident cases in both Kentucky and Southern Indiana.

Louisville Motorcycle Accident Injuries

It can be a dangerous world on two wheels! Motorcycle accident injuries exhibit interesting patterns. The Center for Disease Control (CDC) studies over 1.2 million people who were treated in emergency rooms across the United States for non-fatal motorcycle related injuries and this is what they found. Injuries to the legs and feet account for 30% of all non-fatal motorcycle injuries. Next up were head and neck injuries accounting for 22%. Third were wounds to the chest, shoulders, and back, next were injuries to the arms and hands, and lastly were injuries to the hips and pelvis.

The Association for the Advancement of Automotive Medicine (AAAM) did a study over a four-year period in the state of Maryland where they tracked injuries related to helmet use and differences in injuries sustained by younger and older riders. This AAAM study used both hospital discharge records as well as police reports. This study broke injury locations down into nine different areas including the head, chest, abdomen, spine, neck, face, upper extremities, lower extremities, and external skin, which they ranked by severity.

In the helmet versus no helmet portion of their study, helmeted riders had a fewer severe injuries and a greater number of not as severe injuries. Their overall findings (not addressing the differences in age groups) ranked them as follows:

Lower extremities injuries highest in the 55-60% range,
Upper extremities in the 48-52% range,
Head injuries in the 25-29% range,
Face and neck injuries in the 21-25% range,
Injuries to the thorax (between the neck and abdomen including the ribs, breastbone, etc.) in the 22-28% range,
Injuries to the abdomen in the 19-20% range and finally,
Injuries to the spine 10-14%.

This correlates with the CDC findings, however this study did not take into account helmet use.

A study by the World Health Organization (WHO) studied motorcycle accident victims with their findings also correlating with both the CDC and AAAM studies. Namely, the majority of injuries occurred to the lower limbs with the tibia and fibula bones being the most commonly broken in the lower extremities with the femur being next. In the upper extremities the radius and ulna were most commonly broken followed by the humerus.

The National Highway Traffic Safety Administration (NHTSA) tracked fatal motorcycle accident data over a 3 year span showing that in all three years studied, motorcyclists not wearing a helmet had fatalities in the 50-52% range while helmeted rider fatalities ranged in all three years right at 35%.

Obviously, head injuries as a result of a motorcycle accident are lower among those riders wearing a helmet. Among both helmeted and unhelmeted riders, the leading injury accounting for motorcycle crash fatalities is a head injury.

What can we learn from this? Safety gear greatly reduces severe injuries and fatalities in the case of a motorcycle accident. One way to remember this is ATGATT which stands for All The Gear, All The Time! Enjoy your ride, but be safe and protect yourself!

Rib Fractures and Car Wrecks

The most common injury sustained from blunt trauma to the chest is rib fractures and account for more than half of all thoracic injuries from non-penetrating trauma. Whereas in the elderly the most common cause of rib fractures is a fall and in youth the most common cause is recreational or athletic activities, in adults, motor vehicle accidents are the most common cause!

Fractures of the 1^st and 2^nd ribs are often associated with vascular injury and carry a much higher mortality rate. X-rays are often used to diagnose rib fractures, however, sensitivity can be as low as 50%. CT scan and MRI are much more sensitive in detecting rib fractures.

Pain control is of utmost importance in management of rib fractures in order to keep the patient breathing as deep as possible and clear pulmonary secretions (i.e., coughing). An intact chest wall, which includes the ribs, clavicles, sternum, and scapulae, is necessary for normal respiration. Due to the risk of pneumonia, binding the chest is no longer recommended. Kinesiology tape has proven quite successful in stabilizing a rib fracture and reducing severe pain.

Minor rib fractures can often be controlled with narcotic pain medications while in more severe cases intercostal nerve blocks are required. Surgery is generally only recommended when a broken rib has penetrated an internal organ or if there is a malunion of the rib when healing.

Fragments of fractured ribs can act as penetrating objects and can result in a hemothorax, which is a collection of blood in the space between the chest wall and the lung – also known as the pleural cavity or a pneumothorax, also known as a collapsed lung and occurs when air leaks into the space between the lung and the chest wall. This collection of air on the outside of the lung pushes on the outside of the lung causing it to collapse. Symptoms of a pneumothorax typically include sudden sharp one sided chest pain and shortness of breath. A hemopneumothorax is a combination of both conditions.

Ribs often fracture at the point of impact or the posterolateral bend, which is the weakest spot of the rib. In the case of first rib fractures, those which can be life threatening, the weakest point is at the groove for the subclavian artery.

In a car wreck, the mechanism for first rib injury seems to be the violent contraction of muscles caused by the sudden forward movement of the head and neck. The prevalence of reported rib fractures (with only approximately 70% of chest injury being reported annually) is higher in countries with a higher incidence of motor vehicle accidents. The incidence of rib fractures in children is low due to their more pliable, elastic ribs.

Rib fractures often take six weeks to heal and return to work or activities of daily living during that time depend on the activity involved and the level of pain. Generally, when pain is not present at rest, the patient can gradually begin to increase their activities. It is also recommended for patients to sleep in a recliner during this initial time as getting in and out of a flat bed can be extremely painful and continue to stress the fracture.

Month: November 2017

Archives for November 2017

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