Let's Get Physical

My wife is a nurse in the Heart & Vascular Center at a well-known local hospital, and while our professions are very different, both of our careers share one large thing in common: we both read, interpret and analyze medical records on a daily basis. Obviously, in any personal injury case one's medical treatment related to the injuries complained of is in issue. What most clients don't fully realize, however, is that once litigation begins you put your medical history in dispute. It is not uncommon for the defense to ask for, and the Courts to require, that a claimant's medical records for the five to ten years before the collision be produced in order to see if any similar medical issues have presented themselves in the past.

However, since medical records must be obtained from every provider seen, no matter what the symptoms complained of were, that means I get to know my clients' medical histories very well. In my years of reading and analyzing records, I have learned a great deal about the human body and the various ailments it can suffer. Fortunately, unlike my wife, I do not have to treat said ailments, some of which can frankly be just plain nasty. I never wanted to be a doctor, so it goes without saying that over the years I have learned more than I ever wanted to know about diabetes, GERD, migraines, acid reflux, sinus infections, prostate issues, shingles, MRSA, and the rest of the Physician's Desk Reference. One particular medical condition I see fairly frequently noted by physicians is obesity.

Obesity has become a well-documented and studied problem globally. It can cause health complications that include, but are certainly not limited to: diabetes, osteoarthritis, heart disease, sleep apnea, depression, and even some types of cancers. And these are just the physical complications. Let's not forget the social stigma attached to being overweight, and the shame that can arise from it. There's also added psychological and sociological pressure from the constant media bombardment of what Paris Hilton terms "Hotness." People Magazine's new issue exemplifies my point.

In the early stages of their personal injury case, clients will often ask if we need them to do anything. I always tell them to focus on getting better, as their health should always be their primary concern. At this point, Reader, I would like you to briefly look at the picture to your right and then return your focus here. Done? Good. That, as you may have surmised, is a picture of me. Now, quite obviously, due to a serious love affair with buffalo wings, pizza, and beer, I am not in the best of shape. So, I recently decided to take my own advice and start focusing more on my health by getting back into a shape which does not resemble a sphere.

I chose P90X because I'm a "Give a 110%" type of person. You may have heard about this home fitness program through the infommerical, or read about it on the Internet, or had a friend or relative who did it. Since I started the program five days ago, a lot of my friends have been curious as to what it's like. You may be curious as well, so allow me to share brief thoughts on my workouts so far:

• Day 1: Chest & Back: This overly energetic man who I've never met is trying to kill me through the TV.
• Day 2: Plyometrics: I have lost any and all ability to move my lower extremities. Including my toes.
• Day 3: Shoulders & Arms: Ouch.
• Day 4: Yoga X: 90 minutes of yoga in which I pulled many, many muscles I didn't even know existed.
• Day 5: Legs, Back & Ab Ripper X: [Expletive Censored][Expletive Censored][Expletive Censored]

While it is too early to tell a change in my physical appearance, since I started the program I do have more energy, am sleeping better, and just generally feel better. These are just a few of the benefits that exercise can bring about. Exercise is only half of the equation, however, so make sure you are eating healthier as well.

Whether you are a recovering victim of negligence, or are somebody like me and millions of others around the world, you can benefit from focusing on your health. Victims of negligence should focus on getting treatment and following the medical advice they are given until they are healthy again. The rest of us can, in the immortal words of Olivia Newton John, get physical.

Disclaimer: The views of the author are his own. This blog post is not intended to convey any specific legal advice upon any specific individual. This blog post is further not intended to convey any specific medical advice upon any specific individual. If you have been paying attention, it is quite obvious the author is not a medical professional. Before beginning any exercise program or diet, you should consult a physician. If you are obstinate like the author when it comes to seeing physicians, perhaps marrying a health professional will solve your problem. Unfortunately for the author, the author's wife's advice is usually limited to an eye roll and a terse statement something to the effect of, "You're an idiot. Go see your doctor." The author will admit that his new focus on fitness is not entirely related to health. The author's need for larger pants also played a role. While writing this, the author has become annoyed as Olivia Newton John and Sue Sylvester's "Let's Get Physical" is now stuck in his head. He is a Gleek. Don't judge him.

Thank You For Being a Friend

One pleasant day in 2004, I walked into the office of the Student Government Association at UNC Wilmington. My plan was to review some fee increase proposals various departments had submitted. As the Treasurer at the time, part of my job was to sit on the Student Fee Committee which is comprised of student representatives, faculty, and administrators and decides whether student fees can be increased to provide support for student services and other areas of University life. The work of the committee directly impacts the wallets of over 10,000 students.

About the time I sat down at my desk, the Student Body Vice President (or maybe it was the President, I don't remember), came up to me and showed me a new website that was spreading through college campuses like wildfire. The website rocked my world. I was intrigued, amazed, and soon became utterly engrossed.

What was this website? No, it wasn't the Numa Numa kid. It was something even more awesome. It was Facebook. As a first generation Facebook user, I've seen the site evolve for better and for worse. Back "in the day" it was open only to college students and you belonged to groups to show your support for something. Then high school students were welcomed in. Then came the rest of the world, including corporations, politicians, advocacy groups, and even law firms. Instead of belonging to groups, I became a "Fan" of things and now I just plain "Like" things.

The introduction of the Newsfeed brought with it instant updates about friends all streaming into a single location. It was a stalker's paradise, and it's evolved into a full out intelligence gathering powerhouse. Over the past few days, all 395 of my closest friends knew the following about me:

"Michael commented on Kerstin (Name Redacted)'s status."

"Michael Rothrock just caved to the oddly strong power of the infomercial
and ordered P90X. This could get interesting..."

"Michael Rothrock is at Killers with the wife."

On the other hand, I knew the following about some of my friends:

Joshua (Name Redacted) joined the group 1,000,000 People
Who Want to Plug the BP Oil Spill with Sarah Palin.

Jennifer (Name Redacted) Is super sore after being rear ended outside
of first federal this morning.

Greg (Name Redacted) is livin' the dream

Beth Leone Noble loves Chocolate Cherios!

Who cares? Well, judging by the comments and the “Likes” a lot of people do.

For newer users out there, imagine a world without the Newsfeed or Mafia Wars or Farmville or whatever it is that you do to waste hours of your precious short time on this earth. Imagine a world without the iPhone or Blackberry App (gasp!!). There was none of that back then. There was, however, less ads, less "accessing" of your profile by third-party apps, and generally a whole lot more privacy.

And privacy on social media sites is the key, especially if you're involved in litigation. More and more attorneys throughout the country are turning to Facebook, Myspace, Twitter and the other time wasters out there to discover more information about litigants. This may pose a problem for a client who posts embarrassing or compromising pictures on the site, posts things on their wall for the world to see about the accident, or unwittingly does anything that could affect the case.

I personally have used Facebook to dig up information on trial witnesses I knew little about beforehand and discovered some useful information. In one case, I remember having a difficult time locating a defendant for service through our more conventional methods. Luckily, this guy had a Myspace page that was open to anybody and it listed the current town he was living in and the college he was attending. With little effort knowing that information, I was finally able to track down a valid address for him. You've been served, sir!

Let's say Jennifer from above had instead posted, "I was rear ended this morning but am okay. Good thing I wasn't injured!" It is not uncommon for soft tissue injuries to manifest themselves a few days after the traumatic event occurs. If Jennifer has an open profile, she may arm the defense attorney or insurance company with a harmful admission from her own profile that will assist them in defending the claim.

Clients will occasionally ask me what to do about their Facebook page. I remain unsure of how to answer them because the law is often very slow to catch up with technology and I haven't seen Facebook used that much by opposing counsel. If you find yourself involved in litigation and have a Facebook page, then you should use common sense. Personally, I feel its common sense for everyone to only allow those people you truly know to be able to find out the sensitive personal information we publish to our "friends" online. Check your social media outlet's privacy policy and the tools at your disposal to ensure they are giving you the maximum protection they can. You never know who may be out there looking.

Disclaimer: The views of the author are his own. This blog post is not intended to convey any specific legal advice upon any specific individual. The author wastes copious amounts of time on Facebook (off the clock, of course). He has been known to utilize the chat feature with his wife. While they're both sitting in the home office. Less than two feet apart. The author realizes this is extremely pathetic, but he is a product of his generation. The author has thus far resisted the urge to join Twitter because he still thinks tweeting is for twits, but he must admit it's getting more appealing by the day. If you like reading this blog, the author suggests you become a fan of (or he thinks the proper term is now "Like") Leone Noble & Seate to receive the latest updates from the firm and relevant legal topics. Nothing on the firm's Facebook page should be construed as legal advice, and if you are a client we strongly discourage posting case-specific questions to the Wall.

Author's Note: If you are a client, the firm has a policy that does not allow staff members to accept friend requests from clients past or present on their personal Facebook pages. This is done for your protection as well as ours, and helps us to also maintain the professionalism expected in our attorney-client relationship. Thank you for your understanding.

Special Note: R.I.P. Blanche. Thank you for being a friend.

I've Got Gas

There was an explosion at my house a few nights ago. My wife decided to operate the grill and make us dinner, when normally the grilling is left to me. Our grill is a gas grill, and my wife neglected to shut the propane tank's valve after she was done grilling our chicken and corn. This obviously presents a problem since we routinely eat outside on our deck and light citronella candles to keep the insects away. In case you missed the visit by the local fire department on Safety Day in first grade, propane gas and an open flame mix about as well as oil and water.

While I do spend a lot of time in my office, I lucked out in not having to live there this week. I was able to fortuitously discover my wife's omission before the back half of our house disappeared in a ball of flames. When asked why she did such a thing, she replied, "I forgot." I will say, I did not handle this marital situation with the most diplomatic approach, and hence the "explosion." I hope my wife is not reading this, as it's still a touchy subject.

Like my wife, many of us often overlook things throughout the course of our days, weeks, and months. These things might be trivial, such as forgetting to buy stamps. Or, they might be substantial, like forgetting to shut off an explosive gas source less than 10 feet from an open flame and the back of one's humble abode. We often don't mean to, but in today's society life is fast-paced and things get overlooked.

Litigation is unfortunately not a quick process. Sometimes, depositions occur over a year or even two after a collision. Trial can be even further away. It's not uncommon for many of my clients to forget details about the collision, their medical treatment, and how it affected them.

Forgetting things is not in and of itself a problem in litigation. We have resources like recorded statements, client interviews, accident reports, and medical records to help refresh a client's memory. What I find clients have the most difficulty remembering is the pain and suffering they endured. As time passes, they forget what the pain felt like and their daily struggle to deal with it.

The passage of time and the forgetfulness it often brings presents a problem in this area. Pain and suffering comprises a large portion of a case's value, but that value doesn't amount to much when all the client can articulate a few years later is that they couldn't do "stuff." Stuff doesn't equate to monetary compensation in a juror's mind. It equates to "who cares?"

A jury will likely not be inclined to put a premium on your pain and suffering if you cannot articulate what you went through. I find that my clients tend to lose the ability to articulate the details as time passes. Hopefully, the client has contacted us sooner rather than later and we can document what the client tells us they are going through as they recover from their injuries. Sometimes, however, that doesn't happen.

If you have been the victim of someone's negligence, it is important that you strive to remember what you had to go through during your recovery as time passes. All of us have different methods to remember different things, so you should do whatever works best for you. The most common method I find clients utilize is keeping a diary, which is often a good resource later down the road. It should be noted, however, that there is precedent in North Carolina that suggests that such a diary is not necessarily considered "work-product," so you should keep in mind that diary may one day been seen by someone other than just you and your attorney.

The ability to recall how your injuries affected you is crucial in a personal injury case. The more details you can provide as to how your life was affected, the more fuel your attorney will have in arguing to the jury on your behalf.

Disclaimer: The views of the author are his own. This blog post is not intended to convey any specific legal advice upon any specific individual. The author's wife is in good company. In his hometown, the local fire station once burned down because the firemen forgot to turn off the stove when they went out on a call. The ironic humor still makes the author chuckle. Gasoline, natural gas, and oil are dangerous substances that should be handled with absolute caution. This is especially important to remember if you're British Petroleum.

Thinking Caps

Sometimes, we say things without thinking the statement through. For example, once my wife asked me that annoying and baited question, "Does this make me look fat?" Surely, somebody with as much education and training in "quick thinking" as myself wouldn't answer this question incorrectly. "A little bit," was my response. I'm still not sure why I said it, but I am quite sure I didn't fully think my response through before uttering it. I didn't think about the silence, the icy stare, and how uncomfortable the couch can be to sleep on.

I once had a client who testified, "I don't remember" in a deposition. The answer to the follow up question was, "I don't know." These are not inappropriate responses in a deposition. However, they are perplexing responses when the two questions being asked are, "How old are you?" and "What is your birth date?" The client was nervous, and unfortunately he didn't think his answers through. And again, I really can't make this stuff up.

Currently, a battle is being waged in the North Carolina General Assembly. Citizens, special interest groups, and many lawyers are fighting to replace North Carolina's doctrine of contributory negligence with the doctrine of comparative negligence. North Carolina is one of only four jurisdictions in the nation that still has this antiquated and harsh law. It essentially holds that if an individual is even slightly (as little as one-percent) at fault for their injuries then they may recover nothing as a matter of law. The vast majority of the country reduces the award by the amount of the injured individual's negligence assuming that contribution is not more than fifty percent. The insurance industry is strongly opposed to this fairer and more just law.

Across the State there have been many letters to the editor published concerning contributory v. comparative negligence. The op-ed pieces have been interesting, and the responses even more so. What I find interesting as well are the collateral matters that are being mentioned in these op-eds and editorial comments. In the Beaufort Observer's May 18, 2010 piece on the subject, the author closes his examination of the issue with a suggestion that we should "rein in the John Edwards awards to lawyers, both in personal injury and in medical malpractice."

This is nothing I haven't heard before. Citizens routinely bemoan the much publicized "excessive" personal injury awards given to individuals in courts across the country (of course, you rarely hear about the stories where laws like contributory negligence fail our citizens, which you can read about by clicking here). Caps on awards in personal injury and medical malpractice claims are routinely brought up in the Tort Reform debates that have taken place across this country for many years now, and a lot of individuals seem to support them.

I have to wonder, however, whether the people who advocate for caps on compensatory awards really think their statements through before making them. So, let's put our thinking caps on and explore a hypothetical:

An individual is driving down a two lane highway. A car approaches from the opposite direction, being driven by a person named Negligent Nancy. Nancy is driving above the speed limit and is talking on her phone. She drops her phone due to her greasy fingers from the fries she's eating on the go as well, and reaches over into the adjacent seat to retrieve it. In the process of doing so she crosses the center line and collides head-on into our individual. The cars mangle and tangle, and both drivers have to be pried out and airlifted to the local hospital.

Our individual spends over two weeks in the ICU suffering from shattered legs, a shattered pelvis, broken ribs, and various torn muscles and ligaments throughout their body. They have deep lacerations across their face and chest from the broken windshield glass flying in their face. After being discharged from the ICU, our individual spends another six months in the hospital and various rehabilitation facilities. Their medical bills top the $300,000.00 mark.

Our individual's bruises and fractures heal and the plastic surgeon tells them that the scars will one day fade "a little." What will not heal, however, is the damage to their spinal column. Our individual will never walk again. Our individual files suit against Negligent Nancy to recover for their medical bills and harms and losses.

Our individual and Negligent Nancy live in the State of Injustice. Injustice places a cap on compensatory damages of $100,000.00 over the medical bills. This is what the jury awards our individual, the full medical bills and the full amount they are allowed to award by law for pain and suffering.

You may say, "So what? No amount of money will ever make our individual walk again and I'd be pretty content with a $100,000.00 in the bank." You would be correct. You may also say, "I think that's more than fair." On this point, you would be incorrect.

Money will never allow our individual to walk again, but it can help them make up for what they have lost. It can help them buy a motorized wheel chair so they have easier and greater mobility. It can help them remodel their home so that it can be handicapped accessible; replacing the bath tub, toilet, installing a lift for the stairs, and installing a ramp, just among a few of the necessary renovations. It can help them buy a handicapable vehicle so they can drive and live independently. It can help ease the emotional pain that will come with never being whole again. With the social stigma and pity from strangers that they will experience for the rest of their lives. The hurt that will come when small children stare, cry out of fear, or run away from them. The hurt that will occur when their friends and family walk the other direction when they roll down the street because they're too afraid that our individual will ask them for yet more help. The hurt that will occur when their spouse leaves them because the new stress and life adjustments are just too much to bear.

You may be still asking the questions from above the last paragraph, but I hope you have the curiosity to ask another: "Who is 'our individual?'" They're your mother, father, brother, sister, son, and daughter. They're your best friend. They're your neighbor. They're your favorite coworker. They're you.

Is $100,000.00 still enough when you sit in Our Individual's wheelchair? The world is full of Negligent Nancys, and it truly could happen to you and your loved ones.

It's easy to throw arbitrary proposals out into the public forum when we don't have to live in the shoes of the serious injury victim. It's even easier when we allow ourselves to forget that what these cases are truly about is a fellow human being who has been affected for the rest of their time on this earth. It's easy to play Monday Morning Quarterback.

The jury is the cornerstone of our judicial system. Those 12 jurors are people selected from the community at random who hear the testimony, examine the evidence, and are instructed on the law by the judge. They are the 12 people who deliberate, debate, and argue all the facts of the case. They are the ones in the best position to think justice through before speaking their verdict. Let's think that through and stop playing Monday Morning Quarterback.

Disclaimer: The views of the author are his own. Nothing in this post is intended to convey any specific legal advice upon any specific individual. The author's wife is not fat. Not even a little. The author, however, has horrible dietary and exercise habits so he is not sure the same can be said of him. The author is not aware of any actual proposed legislation impleting a damages cap in North Carolina, with the exception of the cap on punitive damages currently in effect. $100,000.00 is an arbitrary amount tossed out by the author. The author may have stepped on the soapbox a little during this post. You have a right to disagree with him. The author's wife has pointed out that this post is a little more serious than the author's normal witty banter. That can occasionally happen, as pointed out by the author's dear college friend Katelyn who once compared the author to Will Ferrell in this scene from Old School:



If this comparison concerns you, you should know that the author is deeply professional in his career and role as a lawyer. However, the author does routinely remind people that life is just too short to take too serioulsy outside of the workplace.