Friday, September 9, 2011

Jude Basile on the Howell Case


Trial Lawyers Tell the Truth

J. Jude Basile, Trial Counsel in the Howell Case

When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts as full payment, pursuant to a preexisting contract with the injured person’s health insurer, an amount less than that stated in the provider’s bill. In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider’s bill but never paid by or on behalf of the injured person? We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount.

REBECCA HOWELL v. HAMILTON MEATS & PROVISIONS INC., Ct.App. 4/1 D053620; S179115; San Diego County; Super. Ct. No. GIN053925; August 19, 2011.

And so, the California Supreme Court issued its decision in Howell vs. Hamilton Meats last week – no doubt destined to take its place among The Golden State’s pantheon of justice. A true “landmark” case.

The main issue was whether courts should remove the proven value of medical special damages incurred by a plaintiff injured through the negligence of another IF the tortfeasor could show that the injured victim had private insurance that never actually paid all the sums due the health care providers.

At the center of the controversy was the sanctity of the long cited “Collateral Source Rule.” All eyes were focused upon this “medical bill” issue as the case made its way through the system.

The Trial Court had said yes, such reductions in a plaintiff’s medical specials could occur. The Court of Appeal reversed and said no – no such abrogation of the “Collateral Source Rule” should be tolerated.

Then, our state’s Supreme Court weighed in. The appellate court was reversed.

And with that decision, plaintiffs seeking a full measure of justice AND who happened to be lucky enough to hold insurance coverage with a company having the ability to negotiate with health care providers for lower prices found their ability to collect the reasonable value of their medical services stripped away. Instead, they awoke on the 20th of August 2011 to discover that—henceforward—they can only collect the actual amounts their managed care plans paid on their behalf. Predictably, the decision led to much wailing within the California plaintiff bar about the further erosion of long upheld plaintiff rights.

As Becky Howell’s trial counsel, I was tempted to wail along with them, realizing—as I did—that the verdict we had obtained would be reduced by over $135,000 as a result of this ruling. Somewhere amid all the wailing, though, I got to thinking about what it all meant. Where I ended up was a far piece from where all the Supreme Court’s deliberation took them.

The truth is that many lawyers and insurance adjusters use the amount of past medical expenses to be the cornerstone of evaluating all the damages in a case. Courts do the same thing sometimes. I guess we shouldn’t blame juries for following suit, IF that’s how they are led.

How often do we hear as the first case-evaluation question asked: “How much are the meds?”

This concentration on the amount of the medical bills is supposedly an easy and quick way to gauge the “value” of a case. It evolved over time into the insurance company’s method of pegging a value on an injured person’s claim for justice. It became the basis for some settlement mills to exist and operate. Somehow, somewhere, somebody even formulated the myth that “3 times the medical costs” could give a reasonable general damage figure for a victim’s pain, suffering and anguish.

And so many lawyers ask, just as the insurance industry hoped they would: “How much are the meds?”

While many addressed a victim’s request for justice in this mechanical way, the embracing of human experience and the life-numbing misery resulting from another’s wrongful conduct begin to disappear. The human condition, suddenly altered from what had existed before, was seldom perceived with any real detail or empathy. But, boy, many wanted to concentrate on those meds.

I wanted to remind all of us that this decision is a wake-up call for many – a call to remember what our cases are really about: The people we represent. Medical bills, health insurance companies, hospitals, liens, and other “economic” stuff, are only a tiny part of what our cases are about. Our cases are about real people and their changed realities – lives changed in an instant when some other person or corporation betrayed them.

I have been a lawyer since 1982. I have spent most of my career representing people. Since 1985 I have been in private practice representing individuals and families. I have tried many cases. Cases are about people, not “the meds.”

As I said before, I was the trial lawyer in the Howell case. The day I was asked to take the case, I knew Becky Howell was someone special. She was an extraordinary athlete, attending Stanford on an athletic scholarship. She was a world class surfer. She surfed most days of her life. She was married to a musician, poet, songwriter, entertainer, who was also a first class lawyer for people. Her husband asked me to take Becky’s case and it did not take long for me to agree to help if I could.

Becky was driving along the Coast Highway in Encinitas, when a Hamilton Meats delivery truck slammed into the side of her Explorer. The driver was inexperienced with the route, got lost and made a sudden attempt at a U-turn directly into Becky’s path. The defendants, after months of litigation, finally admitted liability but denied Becky was injured beyond a temporary soreness.

Shaken badly in the collision, and after months of enduring needle like pain, fatiguing numbness and a frightening inability to move her previously athletic arm in full motion, Becky went to a doctor for help.

Before long, she ended up with 2 neck surgeries.

The second surgery was terrible for Becky because the surgeon had to scrape out the material between her neck bones and drill screws and metal bars into her upper spine to hold all the vertebrae in her neck together. Please note I am not describing these procedures as involving a herniated disc at C-5/C-6 with radiculopathy requiring laminectomies and internal fixation, etc. That is doctor/ lawyer/adjuster talk -- not the sort of talk that passes between ordinary human beings. When we forget to talk like the human beings entrusting their lives to us, we distance ourselves from the human connection.

Being the person she is, Becky dedicated herself totally to reclaiming her health and her life. She did all she could possibly do to reach a full recovery. I was amazed at her strength and considered her the Bethany Hamilton of her day. (See the movie Soul Surfer if you want to know more about this reference!) A determined competitor her entire life, Becky worked hard in her recovery and at managing her considerable pain. Her guts and determination got her through those awful life-phases. I watched her struggle and often thought: Becky is the kind of person we all admire and hope we can emulate.

Her medical bills were $180,000 or so but her insurance carrier settled these for about $40,000. The judge let the $180,000 go to the jury but reduced it after the trial was over to the $40,000 actually paid, setting the stage for the Supreme Court opinion ultimately to come.

The defense did a sub-rosa video, spying on Becky surfing and other things. Although we asked to see all of the video footage, the defendants refused to show us the whole thing. As a result of this “selective editing,” the trial judge excluded all of it. I suspect there were some pretty nasty things they did not want us to have.

The footage of their edited spy video that was shown to us had her surfing again. This was a reality we had NEVER denied. Her pure grit got her back in the water, but not with the effortless athleticism she possessed before that betraying Hamilton Meats U-Turn.

Who knows what video footage existed that they refused to show us? Maybe they had some shots of Becky rinsing off at the beach shower, or maybe they had footage of her painfully struggling with her wet suit. We will never know what sort of invasion of privacy that hidden footage revealed. We asked to see it, but the cowards never showed it to us.

After the trial, I received a motion from the defense seeking to reduce the amounts awarded to Becky for her medical bills, all as supposedly required by the Hanif case. I contacted John Rice, an expert in this area, to help. Is it not weird that a trial lawyer has to get an EXPERT to help force a negligent driver to PAY for the reasonable value of the medical bills his negligence caused the plaintiff to incur? Am I the only one who thinks that is as peculiar as hell?

Anyway, John helped, did a great job and the case was off to appeal after the trial court granted this defense motion to reduce the medical bills to what Becky’s insurance company actually paid. I am a trial lawyer and could see straightaway that I would need some assistance on the appellate issues. Given this, appellate counsel was hired (Gary Simms) and Consumer Attorneys of California ( formerly California Trial Lawyers) helped, with Scott Sumner’s office leading.

The judgment now handed to all of us by the California Supreme Court is consistent with the pro-business attitude of most of the judicial branch of government. It will create a quagmire in trying cases, IF we continue to focus on the past medical bills as the basis for evaluating a case. This is a wake-up call. We must become more understanding of and empathetic with the people we represent and with all of the members of our juries.

Our system of justice requires tremendous TRUST. We trust that people will do what is right. We trust people will follow the law. We trust in the golden rule, to do unto others as you would have them do unto you. We trust each other in basic daily activities. We trust others to follow the rules of the road, stop at stop signs, not to use drugs or alcohol and drive, to be attentive, to not speed, to not use a cell phone while driving, etc. We trust businesses to be honest. We trust trucking companies to be extra careful when they are making a profit by operating vehicles much larger, more dangerous and thus capable of causing much more damage than other ordinary vehicles on the public roads, which all of us own. We trust them to properly train and supervise the drivers of these huge machines, which bring the companies immense incomes. The more dangerous the instrumentality or activity, the more we must trust those in control of it.

TRUST is the basis of how we live.

Sometimes this trust is broken. It is broken sometimes by not paying attention. On other occasions, the trust is forsaken for greed and for the all-important “bottom line.” There are always motivations for breaking this trust. The motivations must be explored in every case.

When the trust is broken, harm follows -- sometimes great harm. Medical bills are but a small part of the broken trust. Medical bills are the given, for crying out loud. If you break something because you were not behaving as others had a right to truly expect, then you should pay to fix what you broke as best it can be fixed. But human beings are not things. Car fenders do not bleed. Cars do not need oxygen when being fixed. Cars do not need diapers on them as they lay in the repair shop. Cars do not feel. Even knowing all this, though, so much of insurance company and lawyers’ “case evaluations” are rooted within the costs of repair, or the “What are the meds?” inquiry.

What is often missing is an empathetic concern for the human experience.

Have you ever tried to actually experience what the people we represent go through? Have you crawled into a hospital bed and tried to use a bed pan? Have you laid there in that hospital room and tried to eat with one hand, when no one else is present to assist? Do you have any understanding of how lonely that feels? Have you spent a night in your client’s home, sharing their altered realities, their tears and their pain? Have you gotten up with them at night when the fear and the pain will not let them sleep? Gone to the Doctor’s office with them and sat trembling in the examining room wondering what new surgery will be unveiled by the doctor? Is there is nothing else we can do along these lines?

In Becky’s case, I spent lots of time with her and felt honored to do it. I went back and met with her high school teachers, learning what a driving force she had been even as a kid. I went with her to her favorite surf spots. I visited neighborhoods where she grew up. I stayed at her house and saw her morning routine. She told me how the ring and little finger on one hand felt constant numbness and pressure 24/7, so I tightly wrapped my ring and little finger with rubber bands for a 24 hour period to try to feel like she was feeling. I learned very private stories of her life and intimate details of her relationships with her parents and siblings. I came to love and respect her, her husband and her family more than I even imagined was possible.

There is nothing more important than understanding who the people we represent are and how they must live with the changes crashing into their lives. When you seek this understanding, you begin to love these folks. You become their story-teller and their champion.

I am sure there will be ongoing discussions and seminars crafted so we can learn to deal with the Supreme Court’s decision in Howell. There will probably be Howell motions required in the trials of the future. I would not be a bit surprised to watch as a whole cottage industry of experts germinate from the ground like clover to deal with the medical billings issues in trials yet to come.

Becky Howell stood up and took this case about medical bill fairness to the California Supreme Court. While she was willing to make that fight, Becky was never only about the medical bills paid by her insurance company. She was never only about insurance company reimbursement agreements, managed care or lawyers who only look at numbers.

There is a LOT more to THIS lady.

Becky Howell is a human being of unbelievable courage and stature. She is quiet and unassuming and probably wishes I was not writing this about her. She is about being human and fulfilling her human potential in every way she can. She does it so simply and as a matter of such routine that I doubt she realizes her efforts are heroic.

As lawyers, we should pry away the ultimate lesson from the Howell case: Cases are about PEOPLE. If we want to get to know and understand them, we just might start by looking at and understanding ourselves. Why do we do what we do? Is it for our own financial self-enrichment? Are the numbers what we are looking to put up? Is THAT why we look at “the meds” or the property damage sums, because we are focusing on the numbers in our OWN lives?

I am suggesting that everyone heed this Howell wake-up call. Let us truly look at ourselves first. Why do we do what we do? Have we really ever reversed roles with the people we represent and seen their world through their eyes before, during and after the event? Do we take the time to ask who these people are in a soulful way or do we mechanically look at numbers?

Take the time to share the humanity which defines your client. It is there and it is powerful – more powerful than all “the meds” in all the cases ever tried. Allow yourself to feel the love such sharing will engender within your heart.

And, guess what? Those heart-gifts can never be given totally away. They come back to you, like the timeless swallows. Sharing of this type, stirring –as it does-- “the better angels of our nature,” will cause your own humanity to bloom as never before. Budding humanity within an open, caring heart will trump mechanical concentration upon “the meds” every time. I would guarantee it…but, once you feel it, no guarantees are required.

1 comment:

  1. Attacking the amount of the medical bills is an industry wide campaign by all insurance companies in significant medical bill cases. I like your take on the issue.