Congratulations to Tiffany M. Shrenk, Esq. for being recognized as a Top Lawyer in the field of Personal Injury by Main Line Today in 2022. Each year lawyers around the Main Line and western suburbs nominate their colleagues for recognition as a Main Line Today Top Lawyer. Tiffany has been recognized as a Main Line Today Top Lawyer in the field of personal injury since 2019.
Personal Injury
Understanding IKEA’s $46 Million Settlement
Earlier this month it was announced that the furniture retailer IKEA had agreed to pay $46 million to settle a wrongful death case arising from the death of a toddler when an IKEA dresser, described as a “MALM dresser” tipped over onto the young child. The lawsuit was filed in the Court of Common Pleas in Philadelphia County where IKEA’s corporate offices in the United States are situated. The Complaint filed in the case of Dudek v. IKEA alleged that the MALM dresser was not designed to be free-standing and could only be used safely if it was secured to a wall, yet, despite this, IKEA marketed the MALM dresser as free-standing. As a free-standing dresser, the MALM dresser posed a risk of serious injury to children from tip-over incidents.
The fatal incident at issue in the Dudek case occurred in 2017 and involved a MALM dresser that had been purchased about 9 years earlier. There were 186 tip-over incidents, some fatal, that had occurred and of which IKEA was aware involving the MALM line prior to 2017. In June 2015, the MALM line was recalled by IKEA, but, as stated in their Complaint, the plaintiffs in the Dudek case never received notice of the recall. The plaintiffs asserted that IKEA had failed to adequately raise public awareness of the defective and dangerous condition of the furniture to prevent and minimize tip-over injuries and fatalities.
The Dudek case raised claims for strict products liability, negligence, and recklessness against IKEA. A strict products liability claim is available in many jurisdictions, such as Pennsylvania, and holds a manufacturer responsible for an injury or death resulting from an unreasonably dangerous product. In states where strict products liability is not recognized, a claim for negligence can be brought against manufacturers for the manufacturing and design of unsafe products.
The importance of these claims against manufacturers of unsafe products is that the highlight the need for accountability and responsibility in notifying the public of the dangers of the products once they are known by the manufacturer. Although IKEA was aware of the dangers of the MALM dresser well before the death of the Dudek’s child, the allegation in the case was that IKEA failed to warn consumers who had previously purchased the product of its dangers and of the recall. This case highlights the importance of not only recalling a product was the manufacturer is aware of its dangers, but also to publicize the recall so that the past consumers who purchased the product become aware of the dangers and aware of the recall.
Delaware’s New Insurance Disclosure Law
By Tiffany M. Shrenk, Esquire–
Delaware Personal Injury Attorneys now have an additional tool in their arsenal in handling and negotiating clients’ injury claims thanks to the new insurance disclosure law signed by the Governor this month.
The new disclosure law, codified at 21 Del. C. § 2907, applies to motor vehicle accident cases where a claim for personal injuries is made against a motor vehicle insurer. Prior to the new law, there was no requirement that an insurance company discloses its policy limits before the initiation of a lawsuit. That meant that when you filed your complaint, you did not know whether the defendant had the statutory minimum amount of coverage or had opted to higher limits. It was only after a case was initiated with the court that an insurance company was required to inform the attorney or injured individual of the amount of coverage available to compensate the injured party for his bodily injuries.
Under the new law, in order to obtain the disclosure of policy limits, the attorney must send a written request to the insurance carrier providing the date of the motor vehicle collision, the name and last known address of the at-fault person, a copy of the police report, and the claim number. Additionally, the attorney must forward the claimant’s medical records, medical bills, and lost wage documentation supporting the client’s injuries and damages. If the amount of the medical expenses and/or lost wages evidenced by the documentation totals at least $12,500, the insurance carrier is required to respond within thirty (30) days of receipt of the written request and provide the amount of coverage available under the policy.
The policy limits disclosure received by the insurance company is required to be kept confidential. The statute provides that the written disclosure of bodily injury limits is confidential and “available” only to the claimant, the attorney, and the attorney’s personnel. 21 Del. C. § 2907(g). The law also provides that the request can be made directly by the claimant if he/she is not represented by an attorney, but the claimant would still be required to provide the medical records, medical bills, and/or lost wages supporting the injury claim.
The original bill was introduced to the General Assembly early in the spring of this year and was sponsored by Representative Trey Charles Paradee and Senator David P. Sokola. The legislation went into effect as of September 4, 2018, the date it was signed into law. The new law is anticipated to reduce the number of lawsuits filed as a result of motor vehicle collisions. It can also be expected that the new law will assist attorneys in resolving their clients’ cases in a more prompt manner since the insurance company will be obligated to review the documentation and respond with the limits disclosure within the thirty-day deadline.
Legislative Update: Delaware’s Personal Injury Statute – Senate Bill 161’s Proposal for a PIP Payment Schedule
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Currently awaiting consideration by the Banking, Business and Insurance Committee in the Delaware State Senate is Senate Bill 161. Introduced to the General Assembly on March 20, 2018, Senate Bill 161 would drastically change the way medical providers are compensated when treating patients who have been injured in motor vehicle accidents in Delaware.
Under the current law, there is no fee schedule for medical providers to follow when submitting bills for treatment rendered to accident victims under the patient’s Personal Injury Protection (“PIP”) claim. When a doctor treats someone covered by PIP, the doctor may bill according to his/her own fee schedule and expect to be reimbursed at 100%.
Under Senate Bill 161, a medical provider can no longer expect reimbursement at 100% of his/her own fee schedule and instead limits the provider to receiving only the charges permissible under the fee schedules established by the Workers’ Compensation Oversight Panel governing compensation for providers treating workers’ compensation claimants. If the bill becomes law, the provider is prohibited from demanding or requesting any payment in excess of the rate approved under the Workers Compensation fee schedule and mandates that the insurance company is obligated to report to the Division of Professional Regulation any pattern of excessive charges or treatment by the provider.
The Act does permit an insurance company to enter into a separate agreement with a medical provider to establish a fee schedule for medical services to govern reimbursement to the provider for treatment under a PIP claim. In the event a separate provider agreement did exist between the provider and insurance company, the provider would receive compensation for medical services according to the contractual agreement between the provider and insurance company and not according to the fee schedule established by the Workers’ Compensation Oversight Panel. While the bill would require payment in accordance with the fee schedules applicable to workers’ compensation claims, other requirements of the workers’ compensation system, such as provider certification, are not required.
Senate Bill 161 is sponsored by Senator Brian Bushweller and Representative Trey Paradee, with nine additional co-sponsors, and reportedly was developed with the insight of the Delaware Insurance Commissioner Trinidad Navarro. The proponents of the bill contend that allowing providers to bill according to their own individual fee schedules with the expectation to be reimbursed at 100% has resulted in excessive medical charges that quickly exhaust the patient’s PIP coverage. A strong opposition to the bill has been voiced by medical providers and trial lawyers who assert that the bill will limit a patient’s ability to receive medical treatment.
Discussions of the need for a PIP fee schedule have been ongoing for many years as automobile carriers have been declining to reimburse providers’ bills at 100% claiming that providers are engaging in patterns of overcharging and excessive treatment. The current statutory minimum PIP coverage established by law is $15,000 per person and $30,000 per occurrence, but although the statutory minimum may seem sufficiently high, the available coverage depletes rapidly when compensation is expected at 100% of the provider’s fee schedule and providers, at least in the eyes of the insurers, are billing at rates that are deemed “unreasonable.” The current PIP law requires that insurers pay medical expenses that are “reasonable and necessary,” and thus, allows an insurance company to deny full reimbursement of a medical bill that the carrier has deemed “unreasonable.” Disputes between insurance companies and medical providers as to the reasonableness of the amount charged have been ongoing for several decades. In 1994, the State of Delaware Department of Insurance issued Auto Bulletin No. 10 to address automobile insurers’ refusal to pay providers the amount charged basing the denial of the bill on the carrier’s determination that the amount charged was “unreasonable.” Where the full amount of the provider’s bill is not paid by the carrier, balance billing to the client of the unpaid amount may occur, which then leads to legal action against the carrier either in the form of an Automobile Arbitration before the Delaware Insurance Department or an action filed in one of the state courts seeking payment of the bill by PIP carrier.
Whether Senate Bill 161 will be passed to amend the PIP payment system remains to be seen, but it is certainly a major area of concern for practitioners and medical providers of the state, and its progression through the General Assembly should be closely monitored.
Tiffany is an associate attorney at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania. She joined MacElree Harvey in the summer of 2016 and spends her time in the Delaware office located in the Village of Centreville and in the Kennett Square office.
If you have been injured in an automobile accident, contact Delaware car accident lawyer Tiffany M. Shrenk at 302-654-4454 or tshrenk@macelree.com.
Delaware PIP coverage: what to know about Independent Medical Examinations
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Were you injured in a motor vehicle collision in Delaware while occupying a vehicle insured in Delaware? The coverage of that vehicle is the primary payer of medical treatment and lost wages, known as your personal injury protection coverage or “PIP”. PIP coverage determines the number of payments your insurance company must pay for your medical treatment and lost wages. In Delaware, the least amount of PIP coverage required is $15,000.00, but you can buy more coverage. When you are injured in a motor vehicle collision and require lengthy medical treatment, your insurance company may become concerned about the amount of money it is spending. In that situation, the carrier may attempt to stop its obligation to pay your medical bills or lost wages.
The insurance company’s mechanism to get out of paying for your treatment and lost wages is to get a report from a doctor saying you no longer need treatment. In Delaware, a PIP carrier has the right to send it’s insured to an independent medical examination (IME). The goal of the PIP carrier is to receive confirmation from the independent physician conducting the examination that the insured is no longer in need of further medical treatment. Once the PIP carrier receives an IME report saying no further treatment is necessary, the PIP carrier is no longer obligated to pay benefits and will stop PIP coverage.
When your insurance company schedules you for an IME, be aware of the following:
The IME Doctor is not “Independent”
Often, the doctor conducting the medical examination is an out-of-state physician who regularly performs IMEs for insurance companies. This means a doctor paid by the insurance company will do the exam and send a report to the company. The doctor will not treat you.
You must attend a Personal Injury Protection Independent Medical Examination
The obligation to attend a PIP IME arises from the language of your insurance policy, which more than likely reads like this: “The insured is required to attend an independent medical examination at the insurer’s expense, to be conducted by a physician of the insurer’s choice, as often as the insurer reasonably requires.” Delaware courts have upheld the requirement of an insured to attend a PIP IME. In Marrero v. State Farm Fire and Casualty Company, the Delaware Superior Court stated: “Delaware Courts have held that before an insurer is required to make payments on a claim, the insured must comply with all statutory obligations, as well as all contractual conditions set forth in the policy.”[note]State Farm Fire & Cas. Co. v. Purcell, 2015 WL 5440513, at *2 (Del. Super. Sept. 14, 2015).[/note]
Although you must attend an IME if your PIP carrier requests one, it does not mean that the carrier can compel you to attend on a scheduled date when you are not available or make you attend an appointment that is far away. Typically, when told of the IME, the date, time, and place have already been set by the insurer and IME doctor. If when you receive the notice you cannot make the date or time, or the site is very inconvenient, your personal injury attorney can contact the carrier and ask for certain allowances.
Be ready to discuss how the accident occurred, your symptoms, and your treatment history
The reason you must submit to the IME is that your insurance company is looking to end your coverage. Since the result of the IME has an impact on future PIP coverage, you should take the IME very seriously.
The first part of the IME is typically an interview with the doctor. During the interview, be ready to discuss how the accident occurred; what injuries you have sustained because of the accident; and what treatment you have received. Review any available medical records to refresh your recollection as to who has provided medical treatment to you and what medical diagnoses you have received. You will need to tell the doctor of any restrictions in your activities and time missed from work. You will also be asked about any prior motor vehicle collisions and past injuries. Be honest during the interview about any past collisions and injuries and even later injuries.
After the interview, there will be a physical examination performed by the IME doctor of the parts of your body injured in the collision and for which you have sought medical treatment. In addition to the interview and the physical examination, the doctor may also review medical records in preparation for the IME report.
There is recourse when an IME report causes termination of PIP coverage
If after the IME, the doctor issues a report in which he states that more medical treatment is not necessary, the PIP carrier then has a basis to end coverage. The carrier sends a letter to tell you that future bills will remain unpaid. This means the PIP carrier will not pay for any further medical bills or lost wages that you incur. At that point, your personal injury attorney can pursue a claim against the insurance company either through insurance arbitration or through a civil lawsuit filed in court to force your insurance company to pay more PIP benefits up to the amount of your PIP coverage.
If you have any questions regarding personal injury protection and independent medical examinations in Delaware, please contact Tiffany M. Shrenk at (302) 504-7295 or tshrenk@macelree.com.
Tiffany is an associate attorney with the law firm of MacElree Harvey, Ltd. in the Delaware office. Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in a range of civil litigation matters including, but not limited to, personal injury, trust and estate litigation, real estate litigation, as well as contractual disputes and consumer fraud. Contact Tiffany at (302) 504-7295 or tshrenk@macelree.com.
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