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September 2006

Famous Trials: Trials that Shaped History

I stumbled across a neat little site by Professor Douglas Linder, a professor at the University of Missouri-Kansas City School of Law. 

You can view Professor Linder's website here:   Famous Trials - UMKC School of Law - Prof. Douglas Linder.

Would John Brown have fled in a white SUV?

Linder teaches a class on "Famous Trials" in his law school and has had his class materials "on line" since 1996.   I don't recall ever having any "cool" classes like this at Wake Forest Law School.  I think he has done a great job of collecting the "best of" list of trials that shaped our world and our courts.  From the simply "sexy", like Charles Manson and OJ Simpson, to the political and social watershed cases, like the Scopes Monkey Trial and The Trial Of John Brown.

Warning:  You may lose time here

Professor Linder has provided great resource material for each trial, including time-lines, historical accounts, transcripts, and appellate decisions.  It is easy to "lose yourself" for a few hours on this site, so you have been warned.  Linder also has some neat "personal stuff" linked to famous trials, like his personal political views and his feelings about pies (yes, as in fruit).  I like a guy that puts it out there and stands by his own gut.  Given that he's been at this since at least 1996 (which makes him a pioneer in using the Internet in law, simply because most lawyers lag about half a decade behind the real technology world), he has good insight in what to do, and what not to do with the Internet.  Thanks Prof. L!

-Chris Nichols 1.800.906.5984

Spell Check & Contracts

I actually read the Terms Of Service (TOS) on websites where I register.  It's that thing you always have to check mark before you download software or register yourself.  These contracts are pretty interesting, but the one I read today, on a MAJOR website had a pretty funny spelling goof....

17. Procedure For Making Claims of Copyright Or Interllectual Property Infringement

We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at its discretion, disable and/or terminate....

Anyhow, I'm guilty of typos all the time, and I do try to use the spellcheck, but the above goof is, well, pretty bad.

-Chris Nichols 1.800.906.5984

Some New Links and Feeds for NCTLB

I've been working to get NC Trial Law Blog a place on some different Blog aggregators.  Of course, this is limited only by my knowledge base (small but expanding) and the ease of the programs.  I've gotten registered at  Legal Soapbox, which is a Blog aggregator and also a sort of Blog, in and of itself. 

Still in Beta

I tried to make a post, and after composing it, and hitting send, everything disappeared except the tags and the heading.  No body.  Very frustrating.

Legal Soapbox is still in beta testing, so I'm sure this problem will get resolved.  My profile there can be found here, along with my empty post!

A free part of a larger legal resource

Legal Soapbox is part of Attorney Pages, which is an advertising forum for lawyers.  I'm not a huge fan of some of the lawyer services like this because I disagree with the way they attempt to look "neutral" when all they are doing is promoting the lawyers that paid for the ad.  On the other hand, the Free Advise pages do provide a good forum for people to get free legal advice.  I've posted a few times there, and got scolded for actually identifying who I was, and that I was a lawyer.  It was sort of strange, but whatever, it is their website.

Chris Nichols 1.800.906.5984

Will SEHP lien Pro-rate with Other Liens?

I've received some questions lately about the interaction of the NC Teachers' and State Employees' Health Plan Lien with other liens, such as medical providers liens (NCGS-44-49 through 50).  Here is a great question that needs to be answered:

The Question:

If the legislation limits the plan to 50% of settlement, less reasonable costs ( and I understand that the plan will decide what the attorney’s reasonable fees/costs are) does that mean that the plan gets 50%, and the other unpaid providers (copays, deductibles) have to come out of the client’s net, or does the plan in fact pro rate with other providers? Also, how likely is the plan to say the attorney’s contractual fee is not reasonable, and up the net amount they get 50% of?

If you have client with four to five times settlement amount in meds and even more in lost wages, will the plan take ALL of the money?

The million dollar question (and the $5 answer)

I have addressed this same question on this Blog in a comment section, and the post and response can be found by clicking here.  Make sure you read the question posed by David V. and my response.

SEHP may not have to pro-rate

I think SEHP has an argument that they do not have to pro-rate with unpaid providers.  The revised statute does say they have the right to "first pay" from any settlement funds, which seems to suggest that they have the highest priority in repayment.  On the other hand, I don't think they can legislatively "one up" the Federal Government, so I doubt that this rule would apply in regard to Medicare (purely Federal) or Medicaid (state run but subrogation based upon Federal statute).

Medical providers may have to pro-rate behind the SEHP

On the other hand, the other lien statutes, such as the Medical provider lien, would probably be second in line behind SEHP.  The medical provider statute (NCGS §§ 44-49 through 51) provides for proration, so you sort of get it on the back end. in the sense that the medical providers must account for SEHP's lien. (EDIT: Added on 9.5.06:  To explain further, I believe that if the SEHP lien is large enough, that medical providers will not get anything under their lien.  In other words, if the SEHP lien exceeds 1/2 of the settlement after attorney fees are deducted, then SEHP will get the money, and the medical providers will have to seek reimbursement from the client, not from the settlement disbursement.  Remember, the SEHP lien statute, when applied, pays the lien in full, but the medical provider lien only tells the lawyer what has to be paid to providers from the settlement.  Once the SEHP FINAL lien is dtermined, SEHP doesn't get anything more from the employee.  On the other hand, the medical lien statute NCGS 44-50, does not ever"extinguish" the medical provider's bill, it simply tell the lawyer what must be paid from the settlement.Also, keep in mind that SEHP doe not get paid from UM/UIM but that medical providers do.)

Ahlborn may help

I also think you could make the argument from the recent US Supreme Court case of Ahlborn to say that SEHP's lien should be considered against the "whole" of the settlement, though that is a bit of a stretch considering that the Ahlborn case is working on Medicaid/Medicare lien language that is very different from the SEHP language.  On the other hand, Ahlborn is such a landmark case in the world of subrogation and liens, that we will probably see courts around the Nation interpreting the implications for many years.  I expect that at least a few NC cases will be coming up soon the the NC Court of Appeals on this issue, or we may see them in Federal District Court.

Hindsight is 20/20

I guess (in retrospect) that we should have tried to put some sort of pro-ration in the amended legislation, but we were already trying to convince SEHP (the State) to give away money they did not have to "give up.

Don't let the medical providers pull a fast one
Also, in regard to unpaid medical bills (outside of co-pays and deductibles), the providers should have to accept SEHP as the total payment, which means they should not be able to "balance" bill what SEHP insurance did not pay.  I thought that language was contained in the enacting language and Plan language for SEHP., but I don't see it anywhere. The State Health Plan Language begins at NCGS §§ 135‑32 .  Click here and page down to where the Plan begins.
I don't see any provisions about the providers having to accept the Plan as payment in full (minus deductibles and co-pays) but I'm sure that must be in a contract somewhere.  Probably it is in the contract that BC/BS has with the providers since BC/BS is the administrator of payments under the Plan. 
Another good question
The other question is "are medical providers required to submit their bill to BC/BS/SEHP if the covered individual presents their insurance card at the time of services?"
This will need to be determined by the contract that the medical providers have with BC/BS and SEHP.  Does anyone out there have a copy of that contract?  I'd love to see it.  I had one years ago, but it was not an SEHP contract.
I would hope that medical providers are required to accept the SEHP plan, I just don't have the law.  It's probably in the provider contract that the medical provider signs to be in the PPO for the SEHP.  That would be the key provision to work away the medical provider liens.
So what will SEHP think is a "reasonable attorney fee"?
On the issue of the likelihood tof whether SEHP will accept the standard 1/3 as a "reasonable" fee, I wouldn't venture to guess.  I'm hoping they do, but they might wind up acting like ERISA plans and saying 25%.  We'll have to cross this bridge when we come to it.  to me, it seems a no brainer that 33% is fair and reasonable under the circumstances.  The language of the SEHP lien says that if SEHP is forced to collect a lien on their own (Plaintiff does not have a lawyer) then SEHP will deduct their attorney fees from the settlement amount they get for the Plaintiff.  What's fair for the goose is fair for the gander.
Unfortunately, what SEHP decides is fair is unappealable, or at least that's what the statute says.  I have a strong suspicion there are ways around that determination if SEHP acts unfairly.
Chris Nichols 1.800.906.5984

Mobile Blogging Gone Wild

This is being typed on my Treo 650 phone:

I'm trying out a new feature my hosting service, TypePad, is offering: mobile blogging.

By using my Treo 650 smart phone, I can post directly to my blog over the cell phone's Internet connection.

I took the above photo of my desk top screen with my phone and then simply clicked on the blog icon on the Treo.

Since this Blog is mostly legal issues, I don't think I'll be posting much from my phone, but it will be something to do while I'm sitting in airports or waiting for calendar call.

Aside from the carpal tunnel one gets from the tiny key pad, the interface works well (we'll see if this makes it through the cell towers to the actual Internet). I'm hitting send on the phone at 5:28.

-Chris Nichols


This is being typed on my desktop computer:

Update,5:29 pm:  It worked!  Transmission (uploading) only took about 20 seconds and I watched in amazement as the new post magically appeared on my computer monitor.  Of course, now I'm going to have to go back and clean up the typos that I always get on my little phone keyboard, but this is a very cool feature.  I'm sure that people that have Blogs that are "culture" oriented may have more reason to post "instant" photos and blog entries, but I can think of a few uses for the lawyer on the go.

  • Mobile Storage:  Because TypePad allows me to set up multiple blogs, I have one that is password protected that I use mostly as a way to "store" things that I might need to get to from a remote location.  For example, I keep legal forms stored there that I might access from another computer if for somereason i can't get into my own system.   Also, fueled by a healthy case of computer storage paranoia, I keep these documents stored "off-site" in the servers of Typepad.  Thus, if the proverbial meteorite falls on my office and incinerates all of my computer and storage equipment, I'll still be able to get access to the files that I have stored on TypePad (right before the giant dust cloud obliterates the sun and we enter into a new Ice Age).  I could use the mobile blogging software to "instantly" store photographs I take while on the road, so that if just a small meteor hits my smart phone, my photos are safely tucked away at TypePad's facility.
  • The mobile blog entry would also enable me to easily share information over my "secure" blog with my office while I'm on the road.  Same idea as above, but with added users able to access the information.
  • On the off chance that I stumble across something truly earth shattering, I can "instantly" post it to the public blog, NCTrialLawBlog so all of you can be the first to see what I've discovered.  Given that I don't seem to get myself in too many strange places, the chances of this happening are low, but you never know.  Maybe I'll catch one of my three least favorite insurance companies trying to give out $500 "final settlement" checks at the scene of an accident while the injured drivers are still stuck in the burning wreckage.

My only complaint about the software is that I cant put "tags" on the posts from the cell phone.  TypPad even says that the phone software is not supposed to "replace" the desk top.  I know that's a minor thing, and posting to a web site from a phone is a minor miracle in itself, but hey, you don't get what you want unless you ask for it, right?

Anyone else using this for something useful in their life or law office (notice that the two are distinct entities?)

-Chris Nichols 1.800.906.5984

Another teacher sex scandal

I received an interesting comment to one of my blog posts from Ron Franscell, the managing editor of the Beaumont (TX) Enterprise, a 60,000-circulation daily newspaper a Beaumont, Texas.  His blog post can be found here.

Breaking news in Texas

Ron's paper just broke a news story about a "sex ring" involving high school football players and their coaches.  It seems the coaches were recruiting young high school women to "volunteer" to have oral sex with players on the football team.

The victim and other students [the detective] has interviewed mentioned a group that called itself the 3K, which stands for the "Kutchie Kissing Klique."

[The detective} described the group as "a group of guys who sought to have oral sex with younger girls."

Indictments are not proof of guilt

So far, it appears there is only tangential proof that the coaching staff is involved.  There is an indictment of the coaches, but I've learned in many years practicing law that an indictment does not mean guilt.  To quote a great lawyer I know, "A grand jury could indict a ham sandwich."

To digress, at a grand jury in NC, only the prosecutor and the law enforcement officials testify, so the indictment is, to say the least, one sided.  The strength of the indictment really depends on how much the District Attorney wants to prosecute.

I'll be interested in watching how this unfolds.  By all accounts, high school football in Texas is bigger than ACC basketball along Tobacco Road.  I suppose we will see.

Meaningful Analysis

And just so this post does not miss any meaningful analysis, I have seen in my practice that any group that is given a high level of respect from the community, a certain level of of lawlessness, and protection from authority, usually degenerates into abuse.

Having said that, it is the responsibility of the adults to regulate the bahavior of their minor charges.  I will bet that we will see, if the coaches are truly involved, a history of sexual expoitation on the part of the adults.

-Chris Nichols 1.800.906.5984

Thanks to Insurance Coverage Blog for the mention

Well folks, a momentous day for the NC Trial Law Blog....this Blog was actually mentioned and linked in another legal Blog, Insurance Coverage Blog

A positive review

Here is the specific post  from Insurance Coverage Blog that starts with an analysis of the "family member exclusion" and ends with the comment about my Blog.  For you long time legal bloggers out there, that's probably no big deal, but considering how new NC Trial Law Blog is, I'm pleased to have received an unsolicited positive mention on a very well written legal Blog.

Here is what David Rossmiller said:

As a bonus, I offer a blog post from North Carolina on a related subject: the household exclusion in umbrella policies.  This post is a call to arms against this exclusion -- sort of the French National Anthem of insurance coverage ("To arms O citizens of France") -- and I can't say I particularly agree, but I did find this post to be well-written and interesting.

(OK, I admit I added the underlining- CRN)

I know David takes issue with my objection to the family member exclusion, but that's fine, I realize that I was doing a bit of flag waving regarding what I consider to be some bad insurance law in NC.  I would argue, however, that I was waving the American flag, or at least NC's flag when I did it.  Not that there is anything wrong with France.  But then again, I do represent the families that have dead husbands and wives, orphaned children, and get denied insurance coverage when they thought they had it and had been paying for it.  That does make me a bit slanted toward people and away from insurance companies.

Anyhow, I'm just happy that we got a mention on what is now NC Trial Law Blog's 24th day of being "online."  We've barely removed the "sanitized for your protection" paper.

Thanks David, we've added your great Blog to our Blog Roll.

-Chris Nichols 1.800.906.5984

When Will the Governor Sign the Bill??

Waiting for the Governor
     We are all waiting on the new State Teacher's and Employees Health Plan Lien to be signed into law by the Governor.  A lot of us lawyers are impatient for this to happen because we have been waiting since 2004 for the "new" legislation to give a makeover to this "super lien".
Things Look Good
     The Governor has not signed off on the bill yet, which is part of a much bigger package that must be reviewed.  Holly at the NC Academy of Trial Lawyers says she has no indication that there is any sort of veto lurking, so it's just a matter of waiting.
The Situation is in Control
     I've driven past the Governor's mansion a few times in the last week or so, and I saw Holly camped out on the side walk in a small village of lobbyists that sleep in cardboard boxes and tents while legislation waits to be finally approved.  It looks like Krzyzewski-ville (K-Ville) over at Duke University. 
     Holly had a megaphone in one hand, and a cardboard sign in the other that said "Sign the Bill!"  She was chanting with the others, 'Hey, Hey, Ho, Ho, Super Lien has Got to Go!"  It was a truly moving sight that brought a tear to my eye.  That's dedication, and I just happened to have my handy Nikon Coolpix 5 digital camera there to capture the moment . 
     I've heard through the grapevine that she may be staging a hunger strike if this technique does not work. 
     All kidding aside, Holly is monitoring this closely and will let us all know ASAP when the bill becomes law.
-Chris Nichols
Click on Photo to see larger size. 1.800.906.5984

SEHP Lien Request Forms

So you have a client that is a member of the North Carolina Teachers and State Employee's Health Plan?  You need to get the information to determine the extent of the Plan's lien?

Here are some simple steps to follow to protect your client's rights:

Read the Background and In-Depth Analysis of the Lien

Get caught up with the basics of the law by reading the article I wrote for the North Carolina Academy of Trial Lawyers magazine, Trial Briefs

Read the Current Law

Now that you know the background of the law, you need to catch up on the latest developments (like the law being amended) so read the posts on this blog listed in the left column in the catagory "NC State Employees Health Plan".  Or click HERE for a chronological (most recent first) listing of all the posts from this Blog covering the lien.

Get your Client's Authorization

You need to have your client give the SEHP authorty to release information to you.  This is essantially a HIPPA form for SEHP.

Request the Lien

Download the SEHP Lien request form.

You are on your way to negotiating the lien.

Chris Nichols 1.800.906.5984