The Strengthening Medicare and Repaying Taxpayers Act (SMART Act) was introduced on March 14^th, 2011 in the 112^th Congress by Representative Tim Murphy (R-PA) and Representative Ron Kind (D-WI) with support from both the American Justice Association (AJA), which I am a member of, and a diverse coalition of businesses called the Medicare Advocacy Recovery Coalition (MARC).  The SMART Act will significantly improve the efficiency of the current Medicare Secondary Payer (MSP) system and speed repayment of amounts owed from Medicare beneficiary claims directly to the Medicare Trust Fund.  This means that accident victims will be able to receive their settlement checks more quickly.

The Medicare Secondary Payer (MSP) was created in 1965 to provide health care for America’s seniors.  It is the principal form of health care coverage for everyone over 65 and for millions of disabled Americans.  Medicare is the primary payer-that is, it pays health claims first, and if a beneficiary has other insurance, that insurance may fill in all or some of the Medicare’s gaps.  The MSP system saves taxpayers billions of dollars.  However, its existing rules are inefficient; unnecessarily delay personal injury settlements and waste government, beneficiary, and stakeholder resources.  This is why SMART Act was being promoted by MARC and AAJ.

Roy Franco, the Co-Chair of MARC and representing the MSP efforts for Safeway said, “The SMART Act will help to streamline our government in tight fiscal times by creating a MSP system that works effectively for all stakeholders.”  If the SMART Act is enacted, it will create a more efficient and effective system for all beneficiaries by:

• Implementing safeguards for Beneficiaries’ Personal Information
• Speeding up the Distribution Settlement Funds
• Help to Avoid Unnecessary Litigation
• Protect the Beneficiaries’ Access to Justice and our Court System

With the help of this bill, Medicare beneficiaries will be able to settle claims and the Medicare Trust Fund will be repaid quicker.  Companies will be able to resolve disputes faster and more efficiently.

As a personal injury attorney I have had to deal with the nightmare we call Medicare for years.  It has progressively become harder to deal with and frustrating for those who have been seriously injured in car accidents.  I am optimistic that the SMART Act will live up to its name.

A shocking report was released September 27, 2011 from the U.S. Centers for Disease Control and Prevention (CDC) showing of approximately 1.7 million people suffer a traumatic brain injury each year, many because of auto accidents.

Traumatic Brain Injury (TBI) is sudden, non-congenital physical damage to the brain from an external force that temporarily or permanently disrupts normal brain function.  Some form of traumatic impact such as a blow to the head, violent shaking or penetration of the brain tissue from impact falls, vehicle accidents and violence is usually the cause.  Half of all traumatic brain injuries are the result of a motor vehicle accident.  Any damage to the brain can impair physical and psychological activity.  In more serious cases of TBI, the complications can be fatal.  Injuries can range from mild, to severe but the long-term effects are often devastating and life-altering.  About 75 percent of TBIs are classified as mild, but many who suffer severe TBI require an extensive hospitalization.  The Centers for Disease Control (CDC) has even reported deaths due to TBI.

TBI is sometimes referred to as the “silent epidemic”, because it can manifest itself without outward signs of damage.  Jonathan Lifshitz, an assistant professor at the University of Kentucky Chandler Medical Center’s Spinal Cord and Brain Injury Research Center, stated that many people with TBI are “walking wounded” and suffer from injuries that are serious but not easily observable.  Consequently emergency care and surgery is frequently necessary, followed by medication, therapy and cognitive rehabilitative training when TBI occurs.  TBI can cause permanent changes in mental processing, including slowed thinking, dulled attention, memory problems and impaired judgment and change the victims life wholly.

You or your loved one can make a claim if you suffer TBI or serious injuries which are caused by someone else.  You should contact a personal injury attorney immediately after the incident in order to help and give you advice for any potential legal claims and any significant things for you to know.  Many times a Traumatic Brain Injury is left undiagnosed.  This can be due to coping by the injured or embarrassment.

Do not let traumatic brain injuries go without treatment. I had a conversation with only yesterday where a family member saw noticeable differences in the behavior of a niece after an auto accident. She was from behavioral changes and memory loss which caused her to lose her job. The TBI injury was never diagnosed and no personal injury claim was made. Often someone suffering from TBI does not know what is best for them. Make sure that they get the treatment they need so they can be compensated for this devastating injury.

I love to ride my bicycle. The feeling of flying down down a hill at 40 miles per hour is an incredible feeling. It is a thrill I love. There are others for whom the mere idea conjures danger. They believe it is too difficult. Like my wife, they are scared of the cars on the road.

Those of us that are addicted to bicycling ride for recreation, exercise or health reasons. Others bicycle for personal errands, to visit a friend and to get to work. Many considers cycling safer than traveling in an automobile. I look at the benefits not the dangers. I am not worried about being injured in a bicycle accident.

I follow traffic rules. By being aware I feel I can recognize and avoid collisions between bikes and motor vehicles. Being aware of your surroundings will help avoid serious injuries and being involved in a bicycle accident.

If you ride a bike for recreation or your primary means of transportation you need to follow the road rules and always wear your helmet. Check out this statistic. In 2008, 91% of bicyclists that were killed in bicycle accidents were not wearing a helmet. I always thought they did nothing more then make you feel safer. I was wrong. Wearing a bicycle helmet can be life saver. It reduces the risk of head injury by 85%, brain injury by 88% and severe brain injury by more than 75%.

I ran across a very cool infographic by my friend, Utah attorney Kenny Christensen which shows us the most common injuries that one could get if they are in a bicycle accident and how they affect the cyclists.

The majority of cycling deaths happen to the minority who are not following simple safety procedures such as stopping for traffic lights and stop signs, using lights at night and riding with the traffic. The number of injuries can truly be reduced if all cyclists obey the traffic rules and uses care at all times.

I see this all the time in my Kentucky personal injury practice. A cyclist is injured and they want to be compensated for those injuries. When I ask how the bicycle accident happen I often find that the rules were not being followed.

- A bicycle helmet was not being worn
- The bicycle was being road on the sidewalk
- the bicycle was going the wrong way on the road
- reflectors were not being use

The bottom line is if you use some common sense you will not become a bicycle accident statistic.

Every one is tweeting on Twitter and posting on Facebook.  We are walking down the street with our smart phones checking out our friends. Social media is everywhere. Employers have been looking at these sites for years to determine whether or not to hire somebody.  What happens if someone injured in a Kentucky car wreck posts on Facebook? Who can look at it? Is it just who you want to look at your posts?  

Defense attorneys and insurance adjusters have been looking at social media sites to get information on YOU in an attempt to deny or limit your recovery in your personal injury claim. This is whether it is from an auto accident, bicycle accident or dog bite. 

It is only a matter of time before Kentucky courts start to hear cases on social networking sites. Courts in other states have already made rulings on social media issues.  Here is the question. Are Kentucky Courts going to force an accident victim to give access to their social networking sites to the attorney who represents the person that hit you?  The answer is not clear at this point in time.

Here are some points that Courts in other states have looked at. One question involves privacy settings.  Just because you make something private is it really private to the Courts? Will checking the private box be a barrier to the defense seeing what you posted?  By making settings on my account private I do not intend for everyone to see what I have posted or what is on my profile.  Colorado Courts have allowed Wal Mart to subpoena information from Facebook, MySpace and Meetup because they felt the information sought was relevant and reasonably calculated to lead to the discovery of admissible information. This is legalize for we don’t know if it has anything to do with the case but it might.

Courts have allowed defendants to view social media postings in a variety of situations. In a case where a child had an eating disorder the court said that information posted on a social networking site may show that the disorder came from something other than what is alleged in the lawsuit.  So the plaintiff had to turn over access to the site to the at-fault party and their insurance company.

In Connecticut the Court allowed a defendant to view Facebook accounts stating that it was a snapshot of the plaintiff’s state of mind at the time they were harmed.  New Jersey has a similar ruling. This is disturbing to personal injury attorneys and Kentucky automobile accident victims. If this standard is adopted in Kentucky just about any fact situation in any accident would lead to the court allowing the at-fault party’s attorney and insurance company to look at your Facebook page. 
           

Courts in jurisdictions, including California, have concluded that by posting online you have acknowledged that the information you are giving is not intended to be private no matter what the privacy settings are in place on your account.  If you post it on the internet and you are involved in a lawsuit they are going to let the other side see it.

This means that accident victims must be very careful about what is posted. A recent California case found that private Facebook and MySpace communications between individuals could not be subpoenaed.  So maybe your wall postings are safe, maybe not.

 To date there has been no cases heard in the Kentucky Courts.  We do not know what will happen in Kentucky. Caution is in order. Be CAREFUL! Here are a few tips: 

• Look at your privacy settings and set them to block anyone other than people you know from viewing your site.
• Do not post anything that discusses your lawsuit or accident case.
• Do not discuss your injuries in your postings.
• Do not post photographs of you attempting or doing any physical activity that you are now unable to do as a result of your injuries from the accident.
• Make sure your friends don’t post any of the above.
• Do not accept friend invitations from anyone you don’t know. They could be working for the other side!
• Take a look at your friend list. Remove anybody that you don’t know.   

Just be smart so that information posted on social media sites can’t be twisted and used to make you look untruthful or not injured. Taking these simple steps will help prevent unwanted information getting to the other side and maximizing the value of your Kentucky accident case.

            There is a call that no parent ever wants to receive.  Unfortunately, I did receive that call a couple weeks ago. 

I was in a deposition with a client on their Kentucky car accident case when my cell phone vibrated.  I recognized the number. It was my 16?year-old daughter who had just got her Kentucky driver’s license a month and a half before.  I let the call go to voice mail, but she immediately called me back.  This is our signal that it is an emergency and she HAS to speak with me immediately.  

I asked to take a break from the deposition so I could return my daughter’s call.  On the other side of the line I heard in half understandable words, “Dad I’ve just been in a wreck.”  I said, “Calm down.  Are you all right?”  She responded “The car, the car, the car.” I told her “I don’t care about the car.  Are you all right?” 

As I deciphered my daughter’s words in between the sobs I discovered that her neck was hurting from the automobile accident. She was driving to study for finals with three of her friends. She stopped at a light. Friend #1 stopped behind her. Friend #2 stopped behind Friend #1.  At that point in time Friend #2 was rear-ended by a blue minivan.  This set off a chain reaction that ended up with my daughter getting hit in the rear; the car in the middle was sandwiched and got the worst impact in this car accident. 

Then here’s what happened that made it all the worse.  The van took off.  It was a hit-and-run accident.  None of the girls thought quick enough to even try to get the license plate or a good description.  After all they are 16 and new to driving. The police responded to the scene and did an investigation but there was little they could do with no information. 

Luckily my daughter was okay and her friends appear to have no medical issues after a few weeks of treatment. You have to be extremely careful what you write about your Kentucky personal injury case, whether it is in a blog or on Facebook. That allows me to talk about it at this time and make my point. You should always be alert and try to keep your head after an accident.  Document as much as you can at the automobile accident scene. Take pictures of everything at the scene, including cars and skid marks. Give all information that you can to the police. 

Uninsured drivers are everywhere. If my daughter would have been seriously injured, we have Uninsured Motorist Coverage which would have paid for any pain and suffering.  Thankfully we also had PIP insurance which will pay for any and all medical bills. In fact was have Added Reparations Benefits which will pay medical bills up to $50,000.00. 

I hope none of you ever receive this call but if you do, the most important thing is to make sure that your child stays calm in this traumatic situation.  If anyone reading this would like a copy of the free brochure I offer, “What to do if You’re in an Automobile Accident”, please go to my website. You can download a copy there or if you send me an email I will be more than happy to mail you a copy free of charge.

Kentucky car accident victims always want to know how their medical bills are going to be paid.  They have been in an accident, they’re injured, and they’re not able to work.  Many people nowadays don’t have health insurance. The assumption that is made is “If I don’t have health insurance I will have to pay the medical bills for treatment from a car accident out of my own pocket”.

In Kentucky your own insurance company will pay those medical bills.  You have what is called PIP benefits. This is short for Personal Injury Protection. You may also hear these benefits referred to as No-Fault Benefits or Basic Reparations Benefits. It’s something you pay for under your automobile insurance policy. The first $10,000.00 of your medical treatment will be paid for by your insurance company.  You fill out a PIP application  that is sent to you by your insurance company. This triggers the payment to your doctor automatically from that point on until those $10,000.00 of benefits are exhausted. 

Once the PIP Benefits are exhausted you will send your medical bills to your health insurance company. Any additional treatment will be paid by your health insurance carrier. You are personally responsible for any co-pays or deductibles. Any money you pay out of your pocket should be reimbursed by the at-fault party’s insurance company at the time your personal injury case is settled. 

You might be concerned that hey, why should my car insurance company pay for this if the accident wasn’t my fault?  This is done so that you can immediately go to the doctor of your choice. Well at the end of the case they will get reimbursed by the at-fault party’s insurance company minus a $1,000.00 inner company deductible, so your insurance company will not be on the hook for those benefits.