HB 1753 - Bill to Abolish "Made Whole" Returns - More Insurance Giveaways that Harm YOU

The Arkansas General Assembly is back at it again this week, attempting to pass legislation that fattens insurance bottom lines while sticking it to their own constituents.  You might remember two years ago during the 2015 legislative session, when then-Rep. Micah Neal (R - Springdale) attempted to introduce HB 1907, which would gut what is known as the "made whole" doctrine.  Due to a groundswell of opposition, Rep. Neal tabled the bill and it died a justifiable death.  Right now, Rep. Neal has bigger legal fish to fry.

Never ones to be outdone, Rep. Charlie Collins (R-Fayetteville) and Senator Jason Rapert (R-Bigelow) have revived this bill, which is being championed and pushed by big insurance companies.  You know, good government groups like Allstate, State Farm, Shelter, and Farmers.  All those friends of the people.  These insurance companies must be struggling financially, because this bill would allow them to reach into their customers' pockets.  Here's how "made whole" works:

Oftentimes, when a person is injured by the negligence of a third party and no fault of their own, the injured party's insurance company pays benefits for the health care the injured party receives.  Makes sense, right?  You paid your premiums for health insurance in case something bad happens, and something bad happened.  That's what it's there for, right?  But we all know that insurance companies don't really like paying claims, do they?  So they often seek "subrogation," where they step into the shoes of their insured and seek to have those benefits reimbursed by the negligent third party's insurance carrier. 

The made whole doctrine provides that unless and until the injured party is "made whole," the insurance has no right of subrogation.  Unless the person who is injured has been fully paid for all of the injuries, lost wages, pain and suffering, etc, then and only then does the health insurance carrier have any right to be reimbursed or to "subrogate."  Makes sense again, right?  Been the law in Arkansas for years and years and years . . . until the 90th Arkansas General Assembly got together.

This bill would do away with the made whole doctrine and provide that the first entity that had to be paid out of any settlement or jury verdict is . . .who?  The injured party?  Nope.  Your insurance carrier.  Oh, but the health insurance carrier has to repay all the premiums they collected from you, right?  That would only be fair, right?  Nope.  They get to collect your premium payments and stick them in their pocket AND take money out of any settlement or verdict to repay them for the benefits they paid.  They get paid on both sides of the equation.  It's a classic double dip.

Why is this bad?  Several reasons.

1.  It requires ordinary folks who purchase insurance with their hard earned money to act as their insurance company's collection agency.  They get your premiums on the front end, and then you are pressed into service to get that same insurance company's money on the back end.  Didn't you pay them in the first place to cover you if something happens?  Guess what?  You now work for them and your insurance company gets a windfall.

2.  It's free to the insurance companies.  You and your lawyer pay through the nose.  The bill provides that no cost of collection or attorney's fees are payable to either the insured or their attorney.  Again, the insurance carrier hits the jackpot and you foot the bill.  

3.  Cases can never settle if this passes.  If you know you have to repay your insurance company every single dime before you ever see a dollar of any settlement or verdict, no one will ever have the impetus to settle a case.  The result will be even MORE litigation, MORE expense, and MORE uncertainty.  It will hardly ever make sense to settle a case, because it will almost universally go to your insurance carrier.  There will also be MORE dollars pumped into the insurance company's bottom lines.

4.   This applies to all kinds of insurance.  Not just health insurance.  Homeowners, MedPay or PIP, car insurance.  Everything.  All coverage.  You will now have a second job as a collection agency for every single insurance company you have coverage with if, God forbid, they actually have to pay something when you make a claim.

This is slot machine legislation.  Insurance companies take your premiums hand over fist every month and when they have to pay back, they enslave you and your lawyer to go get it back for them.  This is bad policy.  This is bad law.  Contact your legislator and urge them to vote against HB 1753.  The In-Session House number is (501) 682-6111.  The In-Session Senate number is (501) 682-2902.  Here are the sponsors' contact information.  Contact them DIRECTLY:

Rep. Charlie Collins.  (479) 283-9303.  clcollins6@cox.net

Sen. Jason Rapert.  (501) 336-0918.  jason.rapert@senate.ar.gov

SB 176 Would Restrict Nursing Home Employees from Obtaining Petition Signatures from Residents

Senator Bryan King (R)- Green Forest filed SB 176 today.  The bill would prohibit employees of nursing home facilities or long term care facilities from obtaining petition signatures at the facility where they are employed.  Here is a copy of the bill.

You may remember the situation that was discussed on this blog where nursing home administrators and employees combed the nursing homes where they worked to get their patients to sign in support of Issue 4, a giveaway to nursing homes and lobbyists.  Marci Manley of KARK did great reporting on that horrible situation and the potential for serious abuse.  Please watch her story here.

This bill would protect vulnerable seniors from being presented with petitions that they may not be able to understand or comprehend.  Although it was only recently filed, watch this blog for updates on this piece of legislation and others as the 2017 General Assembly moves forward.

Issue 4 Ruled Invalid and Removed from Ballot. General Session Looms Large.

Arkansas Judiciary 

Arkansas Judiciary 

On October 13, 2016, the Arkansas Supreme Court ruled in the case of Ross v. Martin that Issue 4, also known by its (not very) popular title "An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits," was thrown off the November ballot.  The Court ruled unanimously, 7-0, that the ballot title was insufficient, in that it provides absolutely no guidance or definition as to what constitutes "non-economic damages."  

This decision was in accord with the companion case of Wilson v. Martin, which was sponsored by the Arkansas Bar Association, and challenged the ballot title on the same grounds the Committee to Protect AR Families utilized in Ross.  Remarkably, in the accompanying petition challenge trial, one of Issue 4's sponsors, Chase Dugger, despite being asked multiple times, could not cogently or intelligently define what non-economic damage were.  He further testified under oath in the petition challenge trial that "Joe Blow Arkansan doesn't understand what non-economic damages are."  The Supreme Court agreed, and invalidated Issue 4, directing the Secretary of State to not count any votes cast for or against the measure.  

It seemed clear during the signature challenge trial that Health Care Access for Arkansans, the group sponsoring Issue 4, knew truth and honesty would be fatal to their proposed constitutional amendment.  They instructed their canvassers to mislead potential petition signers by not mentioning that the amendment would cap such things as pain and suffering, mental anguish, and the value of their loved ones' lives.  This is because they certainly knew Arkansans would not give up their rights when armed with knowledge.  So they chose to be deceptive, and told signers that it only applied to capping lawyer's fees who file frivolous lawsuits.  In fact, their own training materials and talking points clearly showed their deceptive procedures.

In the immediate aftermath of this decision from the Arkansas Supreme Court, some lawmakers have publicly stated that they will go into the 2017 legislative session and attempt to do what Health Care for Arkansans, headed up by the aforementioned Chase Dugger and Dan Greenberg spent nearly a million dollars and failed in doing.  Senator Bart Hester has proclaimed that tort reform measures like this will be a high priority to refer to the people for a vote in 2018.  The legislature has the discretion to refer three such proposed amendments to our state constitution each session.  People like Senator Hester will always side with corporate nursing homes, big insurance, and business insiders instead of you and your loved ones.

So what does this mean?  It means that your 7th Amendment rights are intact, but that are UNDER ATTACK.  Arm yourself with knowledge about what these provisions will do and how they will harm you and your family.  Arm yourself with information and stay tuned to my blog for information.  And most of all, be prepared to contact your legislator to make sure he or she knows that you do not support placing an arbitrary, one size fits all cap on the value of the most precious thing we hold dear:  Human life.  

Gibson Law Firm Offers Contingency Fee Arrangements for Commercial and Business Litigation

Historically, contingency fee agreements have been the working man's keys to their local courthouse.  For most working folks, paying an hourly rate of $100 or $200 an hour is simply not realistic.  Therefore, contingency fee cases allow the law firm to assume all risks of winning and losing via the prepayment of all case costs and no hourly charges for work performed.  In return, the firm is entitled to for a percentage of recovery (if any occurs) and repayment of costs without interest or surcharge.  This arrangement allows normal, everyday folks to pursue cases against large corporations, insurance companies, or other entities that could (and often would) spend them into oblivion and deny or delay justice.

This normal fee arrangement has traditionally applied to personal injury cases.  But times, they are a-changin'.  Many commercial business disputes or debt collection cases are being handled these days on just these same terms.  Why?  It's a good deal for clients and the attorneys.  Most contract cases have the potential for the winner to be repaid attorney's fees by statute.  Therefore, even if a percentage of recovery is paid to attorneys, as well as costs, it may actually be reimbursed by motion to the court by the winning party.  It can be a win-win.

At Gibson Law Firm, we have an extensive background in commercial and business litigation.  For several years prior to the firm's general focus on personal injury and medical negligence cases, the firm handled almost exclusively business and commercial litigation.  If you are a small business or business owner, and are in a commercial dispute and need representation, but are wary of onerous hourly fee obligations, please call Gibson Law Firm at (501) 371-9051 and discuss representation on a contingency fee arrangement.  We offer varying percentages of recovery arrangements based on responsibility of costs.  Please call or email to JGibson@jessegibsonlaw.com to see if these work for your business and commercial needs.

Medical Errors are the Third Leading Cause of Death in the U.S. Trailing Only Cancer and Heart Disease

If you were put on the spot, and asked what the top three leading causes of death were in the U.S., what would you say?  Cancer, right?  Check.  Every single person on this planet has been touched or affected by cancer.  I can name multiple family members and even close friends who have succumbed to this horrible, awful disease.  Heart disease?  Check.  Much like cancer, heart disease has affected untold people.  Our eating habits, lack of exercise, and culture undoubtedly play a huge role, but regardless of the cause, we all are way too familiar with heart disease.

But number three?  Hmm.  Toxin exposure?  Drunk drivers?  Nope and nope.  Medical errors.  A recent study performed at Johns Hopkins found that there are upwards of 251,454 deaths in the United States EACH YEAR as a result of medical errors.  That is a group of people greater than the population of Little Rock killed by medical errors.  EACH YEAR.  And the researchers feel that this number is on the very low end of statistical data, given that a large number of errors go unreported.  The U.S. Department of Health and Human Services found in 2008 there were 195,000 deaths by medical error among Medicare patients alone.  These include the elderly and disabled, those that we value and want to protect the most.  The Johns Hopkins researches urge modification and reform in the way deaths are recorded and reported by requiring all death certificates to have a space to mark that the death was a result of a medical error.  It is the researchers' belief that such a change would lead to a staggering number of medical error deaths that they hope would eventually lead to widespread reform in medical care.  

An article from CNN is linked below.  Please read it and all information to educate yourself about the dangers of medical errors.  You and your loved ones could be affected or killed.  As you read, ask yourself "How many deaths due to medical errors is an acceptable amount?"  And then ask "How many deaths of MY family members is an acceptable amount?" These situations are more widespread than many would like to admit, even to themselves.  

 

Please, Please, Please Do Not Disclaim Medpay, Underinsured, and Uninsured Coverage

Often, when I meet with clients, it is days or weeks after the worst days (or one of them) of their life.  Either they or a loved one has been in a horrible accident, and they need lots of medical care.  Or they are injured due to someone else's negligence, but quickly learn that the person that hit them only has the statutory minimum insurance coverage of $25,000 per person, and they are faced with bills 5 times that amount.  Or even worse yet, they are hit by someone with no insurance coverage at all.  

Sometimes when faced with these situations, and I ask "What kind of insurance coverage do you have?" I am met with blank stares because they don't know.  This is entirely common.  Most folks buy insurance because they are legally required to, and never give it a second thought.  This is an easily solvable problem.  The real tragedy occurs when I locate their declarations page and discover they have disclaimed med pay (PIP) coverage, Underinsured Motorist (UIM) coverage, or Uninsured Motorist (UM) coverage.  This decision saved them a few bucks every six months when they purchased their policy, which sounded like a great deal.  Little did they know that they might need that coverage in case the worst happened.  When someone injures you, and you need additional insurance coverage to help pay for medical care or lost wages, those few bucks seem wholly insignificant.

I try to educate my clients one at a time of the value of purchasing the most med pay, UIM, and UM coverage they can afford.  As you might guess, I am insured out the wazoo, and my med pay, UIM, and UM coverage is about $40 every 6 months.  So don't skimp.  Don't try to save what is the equivalent of a pizza dinner for your family.  Spend the money and get as much med pay, UIM, and UM coverage as you can afford.  You only need it when you need it, and old Benjamin Franklin is right in this regard.  An ounce of prevention is worth (MUCH MORE) than a pound of cure.  #arlx

 

Defrocked Circuit Judge Mike Maggio Receives Maximum 10 Year Sentence

It was reported today by the Arkansas Times that former circuit judge Mike Maggio received the maximum 10 year sentence from federal judge Brian Miller.  The case involved accepting a bribe to reduce a nursing home verdict in Faulkner County from $5.2 million to $1.0 million.  In imposing the maximum sentence that was in line with the sentencing report, Judge Miller remarked that a dirty judge was more dangerous than a dope dealer, because a dirty judge made the entire public lose faith in the entire judicial system.  

Judge Maggio had sought to withdraw his guilty plea in recent days.  After that went nowhere, he begged for leniency and mercy due to a myriad of unconvincing reasons.  It is unknown where he will serve his time.  He can apparently receive some sentence reductions if he begins complying with his plea agreement and cooperates with federal investigators about the actions of his co-conspirators.  

As an editorial aside, I expect Mr. Maggio to begin cooperating post haste.  If he was concerned about serving serious jail time, that possibility just got very, very real.  I imagine there are some very concerned parties in Conway and Forth Smith tonight.  Gilbert Baker and Michael Morton cannot have much faith that Mr. Maggio will willingly serve out his time when he could minimize it by implicating them with everything he has.  This case has long bothered me, as it only serves to confirm what many believe, right or wrong, happens all the time.  The damage to the justice system in the public's eye is immeasurable.  Updates as they happen.  

For Merit Selection in Arkansas Judicial Races

With the "non-partisan" judicial elections now in our rearview mirror, I believe it's safe to say that it's time for change in how we go about electing judges in Arkansas.  The two recent Supreme Court races saw over $1.6 MILLION in "dark money" flooding our airwaves, telling the citizens that they must elect Judge Dan Kemp and Judge Shawn Womack.  (This number will surely rise as late arriving financial information is crunched)  Congratulations to both of these men, and I hope they stand by their campaign messages, and emember that they are there for the citizens who elected them and not for shady corporate entities who slaughtered their opponents campaigns and reputations to get them there.  Please understand that reasonable people are skeptical of this.  When that much money is spent trashing a candidate for our state's highest court, what other message could be received other than to behave and rule as we want . . . or else.

But it's time to realize that with Citizens United, the toothpaste is out of the tube.  The cows are out of the barn.  Insert whatever cliche you want.  Dark money will flow in from out of state (but lets not kid ourselves, a lot of it actually begins IN state, gets "laundered" by going to dark money outfits out of state, and then comes back) like sludge in every future judicial election.  The attacks were so successful, that the groups behind them should feel nothing but emboldened about their ability to buy influence and judicial races here in Arkansas.

It's time to move to a process, with strict oversight and a fair methodology, to appoint the best and brightest to the bench in Arkansas.  Even Governor Asa Hutchinson agrees.  He called for a move to merit judicial selection in his own campaign post-mortem.  Now, the devil is certainly in the details.  If we truly want to eliminate millions of fraudulent campaign ads and the sale of our courts to big business, true independence, bi-partisan oversight, and input from both the plaintiff's and defense bar is key.  But it's time to stop kidding ourselves that we can have any kind of fair election when the independent judicial election watchdog group, Justice at Stake, found the most recent judicial elections in Arkansas to contain the most vile ads and infested with record levels of outside, "dark" money.  It's time to do something different.  If corporate interests are dead set at influencing the game with their millions, with the intent of limiting your constitutionally protected 7th Amendment rights, it's time to change the game.  

Stay tuned as I put forth my proposed merit selection plan in a few days.

Frequently Asked Client Questions - Part 1

Closing in on 20 years of practicing law, with the past 15 dedicated almost solely to a personal injury practice, I have been asked some pretty strange things.  Everything from "Can I sue Waffle House for having dirt in their coffee?" to "My neighbor put a tracer in my brain so aliens can track me.  Can I sue him to get him to stop?"  But although there are some outliers, the vast majority of folks are good, hard working people who have been wronged, need help, and only desire justice and fairness.  Here are a few things that these folks tend to ask:

1.  What is my case worth?

We could talk about this issue for hours or days.  Every case is different.  And it matters what county the case is filed in, who the defendant wrongdoer is, the extent of injuries, and a vast array of factors.  But the garden variety personal injury case will be driven by medical bills and evidence, lost wages, missed work, and non-economic factors such as pain and suffering or scarring.  Further, while not every case justifies it, if punitive damages are on the table, that could greatly affect case value.  The key is to get all information to a skilled and experienced personal injury attorney.  At the end of the day, the true value is what that attorney can convince a jury of 12 people of.  To do that, you need an experienced advocate.

2.  Is my case recovery taxable?

Great question. And the answer is . . . maybe.  While speaking generally, personal injury recoveries are not taxable, certain types of recovery are indeed taxable.  It depends on the type of case and the type of recovery obtained.  It will depend on whether the recovery is for pain and suffering, medical bills, lost income, or another form of damages.  Again, you need a skilled and experienced trial attorney to walk you through he ins and outs of this issue.  You don't want to "win," in court and then ultimately "lose" to the IRS.

At Gibson Law Firm, we strive to give our clients top notch representation and skilled advocacy.  We will always be there to fight for our clients and to answer any questions, no matter how frequently they are asked. 

"Dark Money" Special Interest Groups Seek to Buy Arkansas Supreme Court

The Citizens United decision opened the proverbial floodgates for "dark money" to flood elections across our country.  These dark money groups do not play by the same rules as campaigns.  They do not have to disclose their donors or sources of money.  Campaigns have to adhere to strict rules regarding fundraising and disclosures of donors.  

The latest dark money group to invade Arkansas is the Judicial Crisis Network, a shadowy out of state group believed to be funded by the nursing home industry and anti-consumer groups affiliated with the chambers of commerce.  These entities seek to do nothing but add to corporations' bottom lines, often at the expense of you and your loved ones.  This group has recently dumped half a million dollars onto Arkansas airwaves in an attempt to take down Courtney Goodson and Clark Mason.  Why?  To promote good government or "good judgin'?"  No.  Because they want to move in, buy our court and restrict your 7th Amendment right to trial by jury. 

Make no mistake, the movement is afoot to buy our court out from under us.  These groups behind the Judicial Crisis Network do not care about fairness.  They care about money.  And they want to ensure they keep raking it in hand over fist.  And who have they vilified?  Trial lawyers?  The people who help you hold a drunk driver responsible or who helps a family in need in a domestic case.  The Arkansas Trial Lawyers Association has strongly condemned these groups.  Early voting starts today.  As you go to the polls, tell these dark money groups that our courts are not for sale in Arkansas.  You could be the next person who is in need of the justice they were designed to provide.  

Gibson Law Firm Participates in ATLA's Inaugural "Lunch and Learn"

Gibson Law Firm, PLLC was happy to participate in the Arkansas Trial Lawyers Association's inaugural "Lunch and Learn."  The speaker was Dr. Lanita Davis, the chair of the marketing department at UALR.  She had great information about the changing media and marketing landscape and where the legal profession fits in it.  We had great discussion and exchange of ideas about the best way to market our law firms and how to get the word out about what we do in the community.  

This was a great program, and we are looking forward to next month's program, which is "Technology in the Office" presented by Alan Levar.  Please check back!

Farewell to Justice Jim Hannah

I was saddened to learn today of the passing of Justice Jim Hannah.  Justice Hannah was widely revered in the legal community for his kind temperament and great fondness and respect for the judiciary and legal system.  He was an honorable man who I had the privilege of appearing before a few times.  The Arkansas bar has lost a man who cared deeply about justice and fairness in the eyes of the law.  He will be greatly missed.  I would like to extend my sincere condolences to his family.

Jesse Gibson Speaking at Upcoming CLE in Fayetteville, Arkansas on November 13, 2015!

See this guy speak about case selection at the ATLA Trial Strategies in the Ozarks CLE at the Chancellor Hotel in Fayetteville, Arkansas on November 13, 2015.

 

 

Just a friendly heads up about a very cool CLE event that is happening up in Northwest Arkansas in a few weeks on November 13th.  This is a hell of a CLE event at a reasonable price and for you Northwest Arkansas folks, it’s right in your backyard at the Chancellor Hotel right off the square in Fayetteville.  

 

Also, and perhaps most important, this gives young lawyers the nuts and bolts, meat and taters guideline about how to intake and screen a case and how to work it up.  For young lawyers and those starting out in solo practice, this CLE will affect your bottom line and help you to learn how to turn your law degree into an income stream.  I know it can be daunting as a young lawyer when a guy comes in with a broken arm or a sore neck, and you are unsure of what to do or how to proceed.  Here is a list of things you WILL learn how to do at this CLE:

 

1.    How to objectively look at a case and decide whether or not it’s a case you can and/or should take.

2.    How to take a treating doctor’s deposition and present his or her testimony.

3.    How to effectively mediate a case.  

4.    How to persuasively voir, dire, open, and close standing before a jury.  

 

When you are trying to develop your personal injury practice, these issues often come up and it can be uncomfortable to ask for assistance.  You can get all of your questions answered at this CLE!  In addition, you will hear from a federal judge, the Honorable Tim Brooks, and hear his observations from the bench.  Here is a registration link.  I think this will be a very good CLE at a great price.  Please register today, or better yet, sign up for your season ticket!    

Judicial Bribe Case May Reach Beyond the Usual Suspects

Readers of my blog know that I have intently followed the case originating in Faulkner County Circuit Court involving the sordid tale of defrocked Judge Mike Maggio, Michael Morton, and Gilbert Baker.  The story, admitted to by Maggio in his plea agreement, is that he illegally reduced a $5.2 million nursing home verdict obtained by Tom Buchanan on behalf of the Estate of Martha Bull to $1 million in return for exorbitant cash contributions to his then burgeoning campaign for the Court of Appeals.  Once this corrupt scheme came to light, Maggio's campaign was kaput, he lost his law license, and he is looking at deserved jail time. 

Though unnamed, there were several co-conspirators mentioned in Maggio's plea agreement.  These were largely believed to be Michael Morton, the Fort Smith based nursing home mogul, and Gilbert Baker, the former politico and lobbyist with a shady history where money and politics intersect.  It has been nearly 10 months since Maggio's guilty plea, and since then, those in the legal community have been waiting for the other shoe to drop.  Since the investigation is being led by the FBI, it has long been believed that Maggio was cooperating with authorities and providing information and perhaps testimony against other parties involved in this truly shameful debacle.

Additional fuel was thrown onto that fire this week when Maggio's sentencing, which had already been pushed back until November 20, 2015, was again pushed back until February 26, 2016.  Is this perhaps evidence that the investigation may be spreading out to other lawmakers or additional co-conspirators?  What about other judges?  What about confidants of both Morton and/or Baker?  Best to wait and see, but it may very well be that the scope of the investigation has spread and will continue its slow sprawl, perhaps very high in state government.  I would venture to say many pols here in Arkansas are sweating and keeping a very, very low profile right now.  

Stay tuned.   

Carroll County Wrongful Death Lawsuit May Be Headed to Supreme Court

Gibson Law Firm recently defeated a motion for summary judgment, filed by the Arkansas Municipal League on behalf of the City of Eureka Springs, Arkansas, in a wrongful death lawsuit pending in Carroll County Circuit Court.  The case involves the Estate of Laura Wooldridge, who died as a result of medical negligence committed by multiple parties, including employees of the City of Eureka Springs and Air Evac EMS, Inc.  The City of Eureka Springs has a liability insurance policy, which under established Arkansas law would foreclose any claim of governmental immunity it may have.  However, the mayor and city council members alleged and swore under oath in the city's motion that they had no knowledge of the existence of the policy and that former fire chief Rhys Williams obtained the policy without their knowledge or authorization.  As such, they claimed that the policy should be voided and the city dismissed based on immunity.  To make a long story short, the city attempted to back out of its own coverage in an attempt to be dismissed from a lawsuit.  Who would be harmed by such an act?  The innocent victim, who would have no recourse against the city.

Luckily, the city's assertion was quickly proven to be false.  The policy had been in place for almost 20 years and had been renewed through at least three insurance companies.  In addition, four fire chiefs and multiple mayors had renewed the policy and paid for it.  Who had signed the checks renewing the policy for the past several years?  Mayor Morris Pate, who had previously sworn, under oath and penalty of perjury, that he knew nothing about its existence.  Discovery in this matter should be interesting, to say the least.

Based upon the foregoing, the court properly denied the motion for summary judgment.  This tragic and horrible case has been reported on by the Lovely County Citizen, the local newspaper in Eureka Springs.  Please read page 5 of the attached link.

The City all but threatens to tie the case up in appeals for years instead of allowing a Carroll County jury to hear the case and render a verdict.  It does not even appear to deny its share of liability.  This appears to be more what has become an all too common refrain of "deny, delay, defend" instead of a admission of a wrong that resulted in the ultimate loss.  Laura should be here today, sending her children off to their first day of school.  Instead, her children have no mother to wave goodbye to, and a hole has been placed in her family's heart forever.  

Gibson Law Firm is committed to pursuing wrongdoers and will ultimately obtain justice in this case.  Regardless of how long it takes, or whether the defendants attempt to delay through years of appeals, Gibson Law Firm will remain steadfast in seeking justice for all of those harmed by such a careless act.   

What to do when your doctor has a change of heart about your medical negligence case.

So often, a subsequent treating physician will urge a patient to sue a prior treating physician for medical negligence, only to have a change of heart later on.  What causes this change of heart?  Who is urging him or her to have that change of heart?  What can you do?  Can you do anything?  How do you protect yourself or your loved ones?   Why won't anyone tell the truth?  

Read the article recently written by Jesse Gibson of Gibson Law Firm, PLLC.  It is a sad, but frequent occurrence.  Please arm yourself with knowledge if something horrible happens to you or your loved ones.  There are ways to deal with this unfortunate situation.  Click the link to read the article.

A Truly Independent Judiciary?

"All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary."  --Andrew Jackson

Former President Andrew Jackson's comments about an "independent and virtuous judiciary" were not flowery prose about an unassailable judiciary.  Instead, they were made in a letter to a nephew in 1822, criticizing an attempt to repeal part of the Judiciary Act of 1789, which established federal supremacy over state law.  Jackson sometimes blew with the wind regarding whether he agreed with the federal judiciary or not, but the point remains valid today.  Constitutional rights, including due process of law or right to a jury trial, are mere words on a page unless a truly independent judiciary follows their sworn duty to enforce and uphold them.  This is true both on the federal and state levels, including here in Arkansas.

Perhaps it is the prevalence of legal dramas in movies and on TV.  Maybe it is one too many John Grisham novels.  But in the past few years, I have been forced to respond to fears from clients that "the judge has been paid off," or that a case is "too politically charged for justice to be served."  I often laughed this fear off and spoke in a reassuring manner to clients that such things don't actually happen in real life.  Judges aren't bribed.  Politics don't enter into judicial decisions.  You have nothing to worry about.  I know this isn't what you do for a living, Mr. or Mrs. Client, so let me assure you I have never seen or heard of that happening.

But now, I am not so sure.  With the developing story in Faulkner County about the Estate of Martha Bull nursing home case that has now mushroomed into a full blown John Grisham novel, maybe I was the naive one.  In that case, former Judge Mike Maggio has already pleaded guilty to accepting a bribe to reduce a $5.2 million plaintiff's verdict to $1 million from nursing home mogul Michael Morton, via an intermediary, Gilbert Baker.  Maggio has since been removed from the bench and is looking at jail time.  His legal career is over.  What will ultimately become of Morton and Baker is unknown.  This case shocks me to the core that such a thing could ever possibly happen.  But it did.  One of the parties involved admitted it did.  Clients read the newspaper.  They read blogs.  They know this happened.  How can they be assured it won't happen to them?  I have no answers.

The Arkansas Supreme Court is in turmoil right now over the gay marriage case.  Circuit Judge Chris Piazza struck down the gay marriage ban as unconstitutional, and the case was briefed on an "expedited" basis and argued before Thanksgiving last year.  However, what happened right around the same time?  An election.  A landslide election.  And elections often have consequences.  A judge recused after being contacted about the case by a state senator, causing the need for the appointment of a special judge to hear the case.  In the interim, the Supreme Court has had turnover and the Arkansas Attorney General has petitioned the court for the new batch of justices who won their elections hear the case all over again.  The common thinking is that the justices who were elected would be more receptive to the state's case to uphold the ban than the ones who heard it last November.  Four members of the Court have gone so far to create a "new case" to decide which judges will actually decide Judge Piazza's underlying decision or the "old case."  All of this is against the backdrop that the United States Supreme Court will likely issue a ruling at some point this summer, possibly rendering any state decision moot.  Two justices, Justice Hannah and Justice Danielson, felt so strongly that the majority on the court was attempting to put off reaching a decision in the underlying case so the United States Supreme Court could rule on the issue that they recused and stated they would not be a party to such machinations.  Such action would then allow the court to avoid a difficult and potentially politically problematic ruling.  Yesterday, the Governor Asa Hutchinson appointed three special justices with widely known political beliefs that seem to be sympathetic to the faction on the court who either want to delay a ruling or to uphold the gay marriage ban.  Critics of the above-referenced action feel strongly that "the fix is in."  The Governor, Attorney General, multiple new members of the Supreme Court, and all of the newly appointed justices have commonly known political ties.  What is the public supposed to think?

Maybe it took being slapped in the face with things like this for me to finally get what clients of mine had stated to me over the years.  I felt that they often were paranoid or watched too much TV.  But maybe things like this have always happened in Arkansas, and I was just too blind to see it.  I hope that is not the case.  But with each example like those listed here, it becomes harder and harder for me to laugh off and explain away clients' concerns about whether justice is available to them.  If you ask the plaintiff in the Bull case or the litigants in the gay marriage challenge, I would venture to say that they do not feel like the courthouse doors are open to them.  I would also feel comfortable saying they feel like they are playing into a stacked deck.  They may be right.  It is my sincere desire that both of these matters are fully investigated and all truth comes to light.  

There is at least talk in different circles about moving towards appointment of judges instead of the election process that we now use.  Would the instances that I describe above fill anyone with confidence that their rights of due process and to a jury trial would be protected?  Or could the process be subverted by politically powerful or monied interests to reach conclusions and results they desire?  I truly do not know.  But my eyes are much more open than they ever were.  Yours should be too.  

What Would HB 1228 Actually Do?

There has been a ton of media coverage regarding House Bill 1228.  The bill was approved overwhelmingly by both the Arkansas House and Senate, and sent to Governor Asa Hutchinson for his signature.  After quite a backlash from citizens, business, and the media over similar legislation in Indiana, Governor Hutchinson asked the legislature to recall the bill and to send him language that was identical to the federal Religious Freedom and Restoration Act ("RFRA").  It is unclear whether the legislature will recall the bill or take any action whatsoever to change the substance of the bill.  If they do not (and as of the time of this writing, it does not appear that the legislature is inclined to do anything), House Bill 1228 will become law without Governor Hutchinson's signature on April 6th. 

The big question is, what does this bill do and what will the effect be?  What are the differences between the federal statute and some other state statutes?  First, the big difference is that HB 1228 would apply to individuals and private corporations and disputes between two private entities.  The federal legislation and other state statutes focus on a government or state actor infringing on an individual's religious freedom.  HB 1228 would allow private individuals to claim as a defense to their actions that they took actions that were allegedly discriminatory against a gay or lesbian person due to their religious beliefs.  Why is this a little ironic?  Because sexual orientation is not a protected class in Arkansas.  There are currently no protections in favor of LGBT individuals.  

What the ultimate effect will likely be is an explosion of litigation (usually unsuccessfully, I predict) by many people where if they get sued or arrested or in a dispute with someone that any actions they took were based on their religious beliefs, and they are therefore allowed.  An example I have seen used often is someone claiming that he or she shouldn't have to pay taxes or abide by the speed limit because their religion does not recognize the laws of man.  

Two reasons this is going to be a complete mess:

First, defining what is and what is not a religion is not easy.  If someone has honestly held beliefs, who will make the ultimate determination as to whether or not those amount to a religion?  In addition, you would be fooling yourself to believe that this could only be applied to Christian beliefs.  It would seemingly apply to Muslims, Buddhists, pagans, satanists, and even those who worship doorknobs or Fred Flintstone.  Too many people get caught up in the bakery owner who does not want to bake a wedding cake for a gay couple's wedding.  What if the tables were turned and someone who practices another religion refused to do the same for a straight wedding?  The potential permutations are mind boggling.

Second, it's going to be expensive.  Imagine all the possible defenses to private causes of action that can be asserted.  It literally boggles the mind.  Even the most slam dunk, easily won cases would be gummed up and extra expense incurred defending what will often be ridiculous positions cloaked in religious beliefs.  It will likely add another layer of bureaucracy and expense and lead to a definite boom in litigation.  That seems to be the definition of big government.

Would this law change much in Arkansas from the way things currently are?  Yes, potentially.  Is it really needed?  No.  But is this piece of legislation worth all the fighting and stigma of "backwards little ol' Arkansas" that will inevitably happen if it passes?  Is it worth losing potential good paying jobs and business growth here if it passes?  Is it worth an inevitable loss in the arts and cultural activities by alienating people from out of state?  Lets think long and hard about this one and ask who this will really serve, if it is needed, and if it is worth it.  

Arkansas Workers, Your Legislators Are Trying to Give Your Benefits Away

Arkansas' 90th General Assembly is committed to injuring working Arkansans in every possible way.  I recently blogged about HB 1907, which would abolish the "made whole" doctrine and force injured Arkansans to become indentured servants to their insurance company for the sole reason that they were an innocent victim of someone else's negligence.  I recently blogged about HB 1907 and its awful results for Arkansans. 

But the damage to Arkansans does not stop there.  Representatives Matthew Shepherd and Jeremy Gillam, as well as Senators John Cooper, Jonathan Dismang, and David Sanders have filed HB 1768.  This is another horrible bill that places the interests of insurance companies that write workers comp insurance above those of injured Arkansans.  

Now, what does this bill propose to do?  We are all familiar with workers compensation laws, right?  If you are injured on the job, your employer is required by law to provide workers compensation benefits via workers comp insurance.  In return for the requirement of providing this coverage to employees, employees give up all rights to sue their employers for negligence.  Workers compensation is the employees' sole remedy.  Workers compensation is not perfect, and it does not provide full compensation for injuries suffered.  However, it is also no fault and provides medical insurance and some small measure of wage loss (often only a percentage and only for a short amount of time) for individuals who suffer workplace injuries.  

However, there are some situations where a worker's injury may be the result of a third party's negligence instead of a workplace hazard.  For example, lets say a worker is driving a company vehicle doing company work and is hit by a drunk driver.  Those actions were still within the "course and scope of employment," and workers' compensation will pay for the medical care.  However, the worker may still have a negligence case against the drunk driver.  Under existing law, the "made whole" doctrine applies.  The made whole doctrine provides that unless and until the injured party is made whole from his injuries (pain and suffering, permanence, lost wages, etc) then and only then does the workers comp carrier have a right of "subrogation."  Subrogation is when an insurance company, despite being paid premiums on the front end, double dips into any settlement or verdict to get repaid for the benefits it paid.  It gets paid on the front end in premiums and on the back end by getting into its own insured's pocket.  

This was the law in Arkansas for years and years.  But this bill seeks to abolish made whole in the workers comp context and provide that the first person who gets paid out of any third party verdict or settlement is not the worker who was injured through no fault of his own, but instead the workers comp carrier.  Oftentimes, an individual may be permanently injured or disabled, but under this bill, that is not important.  HB 1768 wants to make sure that the comp carrier gets a windfall.  

Why is this bad?  Several reasons:

1.  Injured or disabled workers are made indentured servants to their insurance companies under this bill.  If they pursue a case against a third party tortfeasor, they are doing so only so the insurance company can come take it.  This bill would deprive these injured workers from any form of complete recovery. 

2.  This bill will likely force individuals onto government programs that the taxpayers will pay for.  If someone is disabled and no longer able to work due to a workplace injury, a third party settlement or verdict will assist them in obtaining suitable medical care they need.  If HB 1768 passes, disabled workers will often have nowhere to turn than Medicare or Medicaid.  These programs are funded by us, the taxpayers.  This bill would give money away to multi-billion dollar insurance companies and let the taxpayers pay for the medical care these workers need.  This is the definition of big government.  

3.  This bill puts profits over people.  It values the insurance company's bottom line over the workers that are out there sweating and toiling to put food on the table.  This bill sends a clear message that those workers are less valuable and less important than a nameless, faceless, heartless insurance company.  

4.  Insurance companies are allowed to double dip.  They make a net PROFIT when their insureds get hurt.  How?  They get all the premiums up front and then they force the workers to go out and get their money back on the back end.  Do they refund the premiums if they get subrogation?  Of course not!

This is another horrible bill that is currently before the Arkansas Public Health Committee.  This is bad policy.  This is a bad bill.  It hurts working people.  Please contact your legislators and tell them to vote NO on HB 1768.

Your Legislators Value Your Insurance Carrier's Bottom Line Over You - HB 1907

Representative Micah Neal (R) - Springdale recently filed HB 1907.  This bill seeks to obliterate what is known in Arkansas as the "made whole" doctrine.  Let me explain why this is a truly bad bill, and seeks to enslave Arkansans to work for multi-billion dollar insurance companies for FREE.

Oftentimes, when a person is injured by the negligence of a third party and no fault of their own, the injured party's insurance company pays benefits for the health care the injured party receives.  Makes sense, right?  You paid your premiums for health insurance in case something bad happens, and something bad happened.  That's what it's there for, right?  But we all know that insurance companies don't really like paying claims, do they?  So they often seek "subrogation," where they step into the shoes of their insured and seek to have those benefits reimbursed by the negligent third party's insurance carrier. 

The made whole doctrine provides that unless and until the injured party is "made whole," the insurance has no right of subrogation.  Unless the person who is injured has been fully paid for all of the injuries, lost wages, pain and suffering, etc, then and only then does the health insurance carrier have any right to be reimbursed or to "subrogate."  Makes sense again, right?  Been the law in Arkansas for years and years and years . . . until the 90th Arkansas General Assembly got together.

This bill would do away with the made whole doctrine and provide that the first entity that had to be paid out of any settlement or jury verdict is . . .who?  The injured party?  Nope.  Your insurance carrier.  Oh, but the health insurance carrier has to repay all the premiums they collected from you, right?  That would only be fair, right?  Nope.  They get to collect your premium payments and stick them in their pocket AND take money out of any settlement or verdict to repay them for the benefits they paid.  They get paid on both sides of the equation.  It's a classic double dip.

Why is this bad?  Several reasons.

1.  It requires ordinary folks who purchase insurance with their hard earned money to act as their insurance company's collection agency.  They get your premiums on the front end, and then you are pressed into service to get that same insurance company's money on the back end.  Didn't you pay them in the first place to cover you if something happens?  Guess what?  You now work for them and your insurance company gets a windfall.

2.  It's free to the insurance companies.  You and your lawyer pay through the nose.  The bill provides that no cost of collection or attorney's fees are payable to either the insured or their attorney.  Again, the insurance carrier hits the jackpot and you foot the bill.  

3.  Cases can never settle if this passes.  If you know you have to repay your insurance company every single dime before you ever see a dollar of any settlement or verdict, no one will ever have the impetus to settle a case.  The result will be even MORE litigation, MORE expense, and MORE uncertainty.  It will hardly ever make sense to settle a case, because it will almost universally go to your insurance carrier.  There will also be MORE dollars pumped into the insurance company's bottom lines.

4.   This applies to all kinds of insurance.  Not just health insurance.  Homeowners, MedPay or PIP, car insurance.  Everything.  All coverage.  You will now have a second job as a collection agency for every single insurance company you have coverage with if, God forbid, they actually have to pay something when you make a claim.

This is slot machine legislation.  Insurance companies take your premiums hand over fist every month and when they have to pay back, they enslave you and your lawyer to go get it back for them.  This is bad policy.  This is bad law.  Contact your legislator and urge them to vote against HB 1907.