Friday, August 30, 2013

A Background On Personal Injury Liens

Like bouncers at the door of a club, liens often prevent final settlement and resolution of personal injury cases until they are resolved. Government liens, private liens, statutory liens and others prevent final settlement until dealt with.

What's a lien? It's basically a claim by some third party to funds from the resolution of your injury case. Liens can be helpful in that clients can get medical care wherein the doctor will defer payment until the case is resolved, but they often hold up final disbursement of client funds.

Medicare & Medicaid Liens

Medicare & Medicaid, by statute, have liens on injury cases where they paid accident-related bills. Acceptance of these benefits is conditioned on an agreement that the government entity will be paid back if they pay medical bills wherein a third party caused the need for treatment. For example, if someone rear ends you and you go to the hospital and get treated while on Medicare, Medicare may assert a lien against your case vs. the person who hit you. The idea is they just want to be paid back for injuries caused by that third party.

A bureaucratic process handles release of these liens. Medicare only releases liens through the ‘MSPRC’, also known as the Medicare Secondary Payer Recovery Center. Getting through the MSPRC system can take months or longer. Even though you’re giving the government money and common sense suggests a swift resolution is in everyone's best interest, that’s rarely how it works. The entire country is now handled by this central office, creating massive delay.

Medicaid liens are handled state-by-state. In California, humans often answer the phone, read their mail and respond relatively quickly on the state liens, but even resolving these takes time. By law, the client and lawyer must properly resolve these liens.  There is potential criminal liability for failure to do so.

LiensHealth Insurance Liens

Health insurance liens are hard to understand. Some think that because such companies use words like “community” or “health care” in their names, they have friendly intentions and are not out to make a profit. The way health insurance companies see it, they’re there to assist with health needs and to pay bills in the event of one of those feared diseases we don’t want to think about. When a third party causes an injury, if the health plan has to pay medical expenses, this falls in a different category.

Fine print in health plans often requires these companies be paid back. As with government liens, a condition of getting the health benefits is that patients agree to cooperate in paying back the money if there is an injury by a third party. This language creates the lien on the case.

Statutory Liens

Other liens include state statutes granting recovery to specific entities such as hospitals. But, one needs need to be certain that those facilities claiming these liens fall within the targeted group and are not some other provider attempting to jump under the umbrella.

Contractual Liens

Some health providers have new patients sign a form at the outset, obligating the patient to pay the provider directly any charges not covered by insurance.  These are not really liens, but a contractual right of recovery. These vary by provider.

Lien Resolution

Many liens can be negotiated. Some are more negotiable than others. ERISA health insurance plans rarely negotiate, but it’s not impossible. Medicare and Medicaid want their money back, but there is often some flexibility, especially if the client's recovery is less than ideal.

Lien resolution presents one of the more frustrating issues in a personal injury case. The process of obtaining an itemization, reviewing and contesting unrelated items, submitting settlement details, negotiating a final number and obtaining a release or discharge of the lien is very time consuming, but understand that lawyers do this to put the most money possible in their clients' pockets. It's often worth the wait!

Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, and

Monday, August 5, 2013

FDA Orders Makers of Acetaminophen To Include Warning Of Skin Reactions Including Stevens-Johnson Syndrome and Toxic Epidural Necrolysis (SJS/TEN)

The common pain reliever acetaminophen can, in rare cases, cause serious skin reactions, the Food and Drug Administration warned consumers recently.

The agency said it is taking steps to add warnings about skin reactions to labels of over-the-counter medications containing acetaminophen, and it also will require prescription medications containing acetaminophen to include such warnings.

Symptoms of the serious skin reactions include: rash, blisters and widespread damage to the surface of skin, the FDA said.

SJS, products, drug reaction, skin reaction, gansen law group, http://gansenlawgroup.comPatients taking acetaminophen who develop a skin reaction should stop taking the drug immediately and seek medical treatment, the FDA says.

"This new information is not intended to worry consumers or health care professionals, nor is it meant to encourage them to choose other medications," Dr. Sharon Hertz, deputy director of FDA's Division of Anesthesia, Analgesia and Addiction, said in a statement. "However, it is extremely important that people recognize and react quickly to the initial symptoms of these rare but serious side effects, which are potentially fatal."

Acetaminophen is found in Johnson & Johnson's
Tylenol, as well as many other prescription and nonprescription drugs.

The FDA is adding the warning after reviewing cases of skin reactions linked to the medicine. Between 1969 and 2012, 107 cases of skin reactions linked to acetaminophen were reported to the FDA, which resulted in 67 hospitalizations and 12 deaths.
Two severe skin conditions linked to the medication are Stevens-Johnson Syndrome (SJS) and toxic epidermal necrolysis, in which the top layer of skin separates from the lower layers.
There is no way of predicting who is at higher risk for skin reactions while taking the medication. The FDA says it considers the benefits of the medication to outweigh the risks.

Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, and

Thursday, July 18, 2013

Virginia Family Wins Brain Injury Case Against Hyundai For Faulty Side Airbag Sensor

Teenager Zachary Duncan's parents filed a personal injury lawsuit on his behalf against Hyundai after he crashed his 2008 Hyundai Tiburon on February 27, 2010. During the wreck, the side air bags failed to deploy, and thus failed to prevent Duncan’s severe brain injuries, which left him in a coma for almost a week.

faulty products, gansen law group, http://gansenlawgroup.comThe team of attorneys representing the Duncans successfully argued that the air bag sensors on Tiburon models released between 2003 and 2008 are flawed, and unable to detect when they should be deployed.

According to the family’s personal injury lawyer, Duncan’s head hit the support beam in the roof of the car when his Hyundai struck the tree. If the side air bag had not had a faulty sensor, the attorneys argued, Duncan’s head would not have hit the interior of the car in a way that caused such horrendous injuries.

After Duncan’s attorneys made their argument, the jury deliberated for nearly 10 hours before determining Hyundai had made a car that was “unreasonably dangerous.” In legal terms, the jury found that Hyundai had breached the implied warranty of merchantability, which is sometimes the threshold plaintiffs must meet in defective product lawsuits.

In the words of the family’s attorney, if "you put an old, antiquated technology in a car and someone gets hurt, you have to pay for it."

Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, and

Wednesday, June 12, 2013

Why Some Cases Settle And Others Go To Trial

My philosophy and goals as a practicing attorney can be distilled into two key elements: first, give the best service possible to clients, including returning their calls and responding to their concerns; second, get the best result possible for clients.

I've already written a fair amount about the first of these philosophies, but the second is important, too. Obviously, if your opponent in a lawsuit never makes a fair offer or demand to settle the case, a trial is all but certain.

However, there are certain risks that must be accounted for in deciding whether to accept a settlement vs. going to trial. Let's assume we have a case we believe can be valued at $500,000 in "verdict value," i.e. the most likely and best amount a jury would award if all goes according to plan at trial. Why would someone settle for less than that amount, i.e., what determines "settlement value?" A few factors:

Likelihood of success: if a case is worth $500,000 if everything goes perfectly, but there are facts in your case that could work against you or a witness who isn't completely reliable, the value of the case should be lowered accordingly. For example, if your lawyer believes you have a 70% chance of getting the $500,000 verdict while the other side has a 30% chance of winning outright or at least lowering your verdict value due to a factor such as comparative fault (meaning each party bears some percentage responsibility for an incident), the settlement value your case is 70% of $500,000, or $350,000. Realistically, you should then at least consider that or any better offer to settle the case.

Statutory demands and expert/trial costs for both parties: in California state courts, the parties can serve offers or demands under the Code of Civil Procedure that, if not accepted, have the legal effect of entitling the party who does not "beat" the other party's offer or demand to expert costs and prejudgment interest. For example, let's say a Plaintiff believes she can get a $500,000 verdict at trial but knows she will spend $20,000 in expert fees and costs to go to trial. The Plaintiff serves the other party with such a statutory demand for $499,000 and then wins a $500,000 verdict. The Plaintiff can then request prejudgment interest at 10% annually from the date she served the demand, and can recover the $20,000 in expert fees and trial costs she spent to get a better verdict than her $499,000 demand.

The flip side of this, however, is when a Defendant makes an offer a Plaintiff fails to "beat" at trial. Let's say a Plaintiff believes she can win $500,000 verdict in a perfect scenario, but again that she will lose 30% of the time or have her verdict reduced by 30% due to a factor such as comparative fault. If a Defendant serves a statutory offer of $351,000 and the Plaintiff only gets a verdict of $350,000, that Plaintiff must pay for the Defendant's expert fees and trial costs. The same would hold true if the Plaintiff won zero dollars, meaning care must be taken in evaluating any such offer or demand.

The lesson here is twofold: first, these statutory offers and demands are available to force parties to be realistic and reasonable when evaluating the value of each case; second, a party who evaluates such an offer or demand unrealistically runs the risk of costing him- or herself a lot of money.

The litigants' willingness to go the distance: Be it testifying in front of a jury, taking time off work, or any other among a host of reasons, some litigants simply don't have the time, interest, or stomach for trial of their case. In such cases, lawyers are typically instructed to settle the case short of full verdict value. It's important for lawyers and their clients to candidly discuss everything involved in a trial: it can be stressful, expensive, and time consuming (as well as financially risky as described above), to name but a few negatives.

Overall, the decision whether to take a case to trial hinges on these major factors. Each case is different, and each case I've been involved in that has gone to trial vs. settled has usually involved one or more of them.

Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, and

Friday, June 7, 2013

DMAA Is Illegal And Dangerous, FDA Says

The Food and Drug Administration is warning to consumers not to buy dietary supplements containing the ingredient dimethylamylamine, or DMAA.
The strongly worded warning from the agency, which calls the DMAA illegal, is the first to explicitly caution consumers about the ingredient, experts say.
DMAA, most commonly found in supplements promoted for helping muscle-building and weight loss, can increase blood pressure, and may cause shortness of breath, irregular heartbeat and heart attacks, the FDA says.
The warning comes after the FDA sent letters to 11 companies last year, asking them to stop making and selling products containing DMAA. Since then, all but one of the companies has complied, the FDA said.
The FDA has received 60 reports of illnesses and deaths linked to supplements containing DMAA, although these reports cannot prove that the supplements were the cause of the health problems, the agency said.
Unlike medical drugs and devices, dietary supplements do not require FDA approval before they are sold to consumers. (Companies that sell supplements to not need to provide proof of their safety and efficacy.) The FDA regulates supplements only after they enter the market, and must undertake lengthy steps to remove a product it deems unsafe, the FDA said.
If you've been affected by DMAA, contact Gansen Law Group for a free consultation. 

Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, and

Johnson & Johnson Subsidiary Hit For $8.3 Million In Defective Hip Suit

On March 8, 2013, a Los Angeles Superior Court jury awarded a retired corrections office $8.3 million in damages stemming from a defective hip replacement device.

The verdict was in the bellwether case Loren “Bill” Kransky v. DePuy, LASC Case Number BC456086. Johnson & Johnson's DePuy unit defectively designed a metal-on-metal hip implant and was negligent, a California jury decided in the first of 10,750 lawsuits over the device to go to trial. The Los Angeles jury awarded $8.3 million in compensatory damages to Loren “Bill” Kransky, a retired prison guard from Montana, after finding that the design of the ASR XL hip caused his injuries. Jurors also found DePuy properly warned of the risks and didn’t owe punitive damages to punish the company.
hip replacement

J&J, the world’s largest seller of health-care products, recalled 93,000 of the implants in August 2010, when it said 12 percent failed within five years. Last year, 44 percent failed in Australia within seven years. Analysts say the lawsuits could cost J&J billions of dollars to resolve. Patients such as Kransky, 65, complain in lawsuits of dislocations, pain and follow-up surgeries known as revisions. Kransky’s lawyers argued that DePuy failed to test the device adequately before selling it in the U.S. in 2005, buried surgeon complaints of mounting failures, and studied a redesign of the ASR before scrapping that effort in 2008.

The next bellwether trial begins in Illinois State Court on March 11, 2013. The Kransky verdict is likely the first of many large verdicts to be handed down against DePuy.

If you’ve had problems with your hip replacement, contact the Gansen Law Group today for a free evaluation.

Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, and

Insurance Companies: Not Your Friend In An Injury Case

We were recently retained by a client who survived an incredibly tragic and violent auto accident, after which she was hospitalized with broken bones and numerous other injuries. In addition to her physical pain, she now also suffers psychological after-effects from the accident, including anxiety, PTSD, and difficulty sleeping among others. Her medical bills total about half of the driver's relatively high policy limit, which means her recovery for pain and suffering likely won't be nearly enough considering what she's been through and will continue to go through.
Insurance companies aren't interested
in paying you fairly or quickly after an injury.

For reasons I'll explain, the other driver's insurance company has still not paid the policy limit even though it is now nearly five months after the accident. Despite knowing the facts of her injuries and having access to the bills, the company delayed, saying they needed to get their own copies of the medical records. That has taken an untold amount of time while our client's bills have piled up and, in some cases, went to collection. I believe this is nothing more than a delay tactic designed to pay her as little as possible while earning as much interest on the policy proceeds as possible. This is not uncommon.

Fed up with arguing with this insurance company, stressed beyond the breaking point, and still suffering from the accident, our client retained us to take on the insurer for her. While we've only just gotten involved, I have little doubt we will be able to 1) get her the full policy limits relatively quickly; and 2) negotiate her medical bills down dramatically so as to ensure her total recovery is at least equal to and likely better than what she'd have gotten if she hadn't hired us.

If you find yourself arguing with another driver's insurer about who is at fault or the cost of your medical treatment, or if you're tired of delay and stonewalling while your bills pile up, consider hiring a qualified attorney to handle your personal injury case to improve your recovery and save time.

Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, and