Amendment to the Definition of Uninsured Motor Vehicle Expands UM Coverage

The New Hampshire Legislature recently amended the statute that defines what is an uninsured motor vehicle.  Prior to the amendment, the definition of an uninsured motor vehicle included two categories: (1) vehicles for which the liability insurer was unable to make payment of the policy limits because of insolvency, and (2) vehicles where the applicable liability insurance limits are less than the limits of the uninsured motorist coverage applicable to an insured.

Effective January 1, 2015, the definition of an uninsured motor vehicle includes one more category of vehicles – those vehicles where the “available liability insurance has been reduced by payments to others injured in the subject accident to an amount less than the limits of the uninsured motorist coverage applicable to the insured.”  See RSA 259:117.

An example is illustrative of how the amendment expands coverage.  Suppose a tortfeasor causes an accident that injures several people.  The tortfeasor has a liability motor vehicle policy with $1 million in coverage.  Two people are killed in the accident and five other people are seriously injured.  The parties allocate a settlement amongst all parties injured or killed in the accident.  Assume that the people who were injured but not killed in the accident each received $40,000 from the tortfeasor’s liability policy and that this is a fair allocation based on the amount of claims on the liability policy.  Also assume that one of those people had an uninsured motorist policy in the amount of $250,000 and that the person’s damages are over $40,000.

Under the old definition of uninsured motorist coverage, the person with the $250,000 uninsured motorist policy would not be able to recover anything from his uninsured motorist carrier.  This is because the tortfeasor’s coverage ($1 million) was more than the person’s uninsured motorist coverage ($250,000).  However, under the new definition of uninsured motor vehicle, that same person is entitled to receive uninsured motorist benefits.  This is because the claims from the other injured parties in the accident reduced the amount of coverage from the liability insurer to an amount that is less than the coverage under the person’s uninsured motorist coverage.  This is a fair result.  The injured person should be able to collect under his own uninsured motorist policy because the amount actually available to him through the tortfeasor’s motor vehicle policy is less than the amounts available to him through his own uninsured motorist policy.


A Basic Primer on Liens in a Personal Injury Case

If you settle or obtain a judgment in a personal injury case, it would not surprise most people that a person would have to deduct attorney’s fees and the costs of litigation from the final amount of the settlement or judgment. It may not be so obvious, however, that a person would have to pay back an entity that has paid for that person’s medical bills, property damage or lost wages. The right of another party to obtain repayment from a person’s recovery from a claim is called a lien.

There are many types of lienholders and a person’s rights and obligations may be different depending on what type of entity paid for the medical bills, property damage or lost wages. If Medicare paid for medical treatment, there is a duty on the part of the injured person or her attorney to notify Medicare about the litigation and inform Medicare of the amount of any settlement or judgment. Medicare will expect repayment of the amounts it paid that resulted from the liable party’s negligence. The amounts paid for by Medicare when another party was at fault are called conditional payments. The injured person should make sure that all of the treatment Medicare claims are conditional payments actually relate to the subject of the litigation.

If a workers’ compensation carrier paid for medical treatment or lost wages, this entity has a right under New Hampshire law to be repaid from any settlement or judgment received by the injured person. Further, any settlement must be approved by either the Department of Labor or the Superior Court.

Insurance companies and medical treatment providers may also need to be reimbursed from a settlement or judgment.

Repayment of liens should never be overlooked when considering whether to settle a case because the final amount received by the injured person will be reduced by the amount of the lien. The amount of the lien may or may not be negotiated depending on the circumstances and type of lienholder.

Federal District Court Decides Motion to Dismiss in Exeter Hospital Contribution Action

On September 4, 2014, the United States District Court for the District of New Hampshire dismissed one of two contribution claims filed by Exeter Hospital based on the lawsuits filed against it by patients infected with Hepatitis C. The patients were infected with Hepatitis C after David Kwiatkowski, a traveling cardiac catheterization technician, had injected himself with syringes of drugs and then replaced those syringes with saline, which in turn were used by patients at Exeter Hospital.

Most of the cases against Exeter Hospital have settled. Exeter Hospital brought a contribution action against a placement agency, Maxim Healthcare Services, Inc., and a certifying agency, the American Registry of Radiologic Technologists (ARRT) seeking contribution for the payments it made to Hepatitis C infected patients. Exeter Hospital alleged that Maxim, who had previously placed Kwiatkowski at hospitals, was aware that Kwiatkowski had been previously fired by a facility. Exeter Hospital also sought contribution from ARRT, alleging that ARRT was aware of the details of an incident occurring prior to the incident at Exeter Hospital, yet it never reported or investigated the incident and permitted Kwiatkowski to work at other hospitals, placing patients of those hospitals at risk.

The Court granted Maxim’s motion to dismiss, finding that although Maxim was aware that Kwiatkowski had been discharged from one of the hospitals at which he was placed, there was no allegation that Maxim was aware of the reasons for that termination.

ARRT also moved to dismiss. However, the Court found that ARRT knew about an incident involving Kwiatkowski misusing drugs yet never reported the incident to the authorities and it permitted him to be placed at other hospitals, which enabled him to remain employed as a traveling cardiac catheterization technician and which placed every patient at such hospitals, including Exeter Hospital, at risk. The Court found that a motion to dismiss was inappropriate because ARRT knew about the incident and, as a certifying agency, had broader duties.

Who Let the Dogs Out?

An attack by a vicious dog can result in severe physical and emotional injuries to the person who was attacked. By statute, the owner of the dog is strictly liable for injuries caused by his or her dog. RSA 466:19. Although frequently referred to as a dog bite statute, a dog owner may be liable for a person’s injuries even if the dog never bites the person.

Further, a landowner may also be liable for injuries caused by a vicious dog. All landowners are under a duty to use reasonable care under all the circumstances in the maintenance and operation of their properties. If a landlord knew or should have known that his tenant kept a vicious dog on the property, then the landlord (and the dog’s owner) may be liable to a person injured by his tenant’s dog.

Wrongful Death Following Propane Explosion

In a tragic case, a woman was killed when her relatively new condominium exploded due to a propane leak in her basement.  The force of the explosion nearly leveled the condominium and all of the gas appliances were destroyed.  Careful examination of the propane system piping revealed two important clues: there was a slight horizontal bend in the external propane gas pipe running into the unit and deformation of the interior pipe thread.  The horizontal bend indicated that the pipe had been struck from an external force.  The Fire Marshal’s investigation revealed that the landscaping company had mowed the day before.  Also, the piping in the house showed a break in the pipe threading at a point that was very thin.

The plaintiff’s liability theory was that, contrary to the State Fire Code, the exterior propane piping was not guarded against strikes and the interior propane piping was improperly threaded, which weakened the pipe and made it more susceptible to cracks from an external force.  Several experts, including a metallurgist, a fire investigator, an engineer and a code expert, were consulted and provided opinions in the case.

The plaintiff estate sued: the condominium developer, the builder, the condominium association, the company that installed the interior propane piping, the company that installed the exterior propane piping, the landscaping company, and the propane supplier.  The plaintiff pleaded a breach of warranty claim against the condominium developer for selling a condominium with a structural defect (the improperly-installed propane system).

A settlement was reached for the family prior to trial.

Vaccine Injury

Most of the time, vaccines are a routine, uneventful part of healthcare.  For certain individuals, however, reactions to the inoculations can cause severe injuries and health conditions.  Adults and children alike can find their lives permanently changed by these serious vaccine injuries.

The National Vaccine Injury Compensation Program (VICP) is a no fault system providing compensation to people injured by vaccines.  The system recognizes that vaccines can lead to serious injuries, and provides monetary compensation for victims.

The vaccine compensation fund is governed by a set of regulations that includes a description of symptoms that occur within a set period of time following different vaccinations.  It is presumed that the adverse symptoms are caused by the vaccination if the symptoms documented in a victim’s medical records meet the stated timeline for the vaccine in question.  Compensation may then be available for all medical treatment, including future medical treatment, pain and suffering and any future loss of earning capacity.  The fund also pays for the victim’s attorney fees.  Compensation is only available if symptoms persist for more than 6 months and the symptoms require medical treatment for the victim.

McDowell & Osburn, PA, has successfully litigated vaccine injuries at the U.S. Court of Federal Claims.  A review of a child’s medical records from before and after a vaccination will likely indicate whether a child or adult may be eligible for compensation for a vaccine injury.  Any claim must be filed within 36 months of the onset of the injurious symptoms.  Attorney Joseph McDowell of our firm is admitted to practice before the Court of Federal Claims.

Ropivacaine Overdose was Preventable

On October 25, 2011, the plaintiff, age 53, was recovering from surgery at the defendant hospital.  The surgery was uneventful and he was doing well postoperatively.  The nurse changed the bag of his epidural pain medication, Ropivicaine (Naropin), which was prescribed for 8 mL per hour; the bag was supposed to infuse over the next twelve hours.  However, the nurse mistakenly set the controls and the entire bag was infused in one hour.  Following the overdose, the plaintiff was paralyzed up to his clavicle.  He has regained some sensation and movement but his remaining paralysis is permanent. 

This serious and life-threatening medication error could have easily been prevented had the hospital required nurses to double check and verify high-alert medications administered to patients via an epidural catheter.  Such double checks are well-recognized.  The Joint Commission has required that hospitals use a double check system for over a decade.  Further, medication safety organizations, such as the Institute for Safe Medication Practices, also recommend use of a double check system for medication administration.