Injury Law Proves Risky
By Brian C. Anderson, Claims Counsel
Wisconsin Lawyers Mutual Insurance Company

Personal injury practice continues to be the riskiest area of practice for lawyers. Nearly 25 percent of malpractice claims made against lawyers arise out of personal injury practice. Following are examples of claims made against lawyers practicing personal injury law. We share these claims experiences to help policyholders be aware of the risks involved in personal injury practice.

Too little, too late

The insured represented a client who sustained a serious knee injury in a slip-and-fall accident in an out-of-state restaurant. While the client’s damages were significant, establishing liability against the restaurant where the accident occurred would be difficult. The restaurant’s insurer waited until two days before the statute of limitations tolled to deny the claim, finding no liability.

When the attorney attempted to retain associate local counsel to file a lawsuit, he learned he had missed the statute of limitations governing personal injury claims. The fact the attorney had not explained to his client the difficulty he would face establishing a liability claim against the restaurant before missing the statute of limitations further aggravated the situation.

UM and UIM spell trouble

The plaintiff was injured in a rear-end automobile collision involving the tortfeasor. The plaintiff retained the insured, who suggested the value of her claim exceeded the tortfeasor’s $25,000 liability policy limit, but never provided her with an assessment of the “fair” total value of her claim.

At the time of the accident, the plaintiff had a $300,000 underinsured motorist (UIM) policy. The attorney settled the claim for the $25,000 policy limits without notifying the UIM carrier or allowing it an opportunity to preserve any subrogation claim it could assert against the liable underinsured motorist. The carrier denied the UIM claim because of the attorney’s failure to provide the required “notice.” The plaintiff made a claim against the attorney, seeking the entire UIM policy limits.

Congenital condition, not injury

The plaintiff suffered a serious neck injury following an automobile accident. The insured presented a substantial settlement demand based on the medical records, reports and documentation he gathered on the case. The attorney advised his client to reject a large settlement offer made early on based on the apparent strength of his client’s case and the matter was placed in suit.

During the course of discovery and after the plaintiff’s independent medical examination, the attorney met with the client’s primary treating physician. To the attorney’s surprise the doctor indicated that most of the plaintiff’s current complaints and all future medical expense she was likely to incur were directly attributable to a degenerative neck condition the plaintiff had at birth, and not related to injuries she sustained in the accident. With expert witnesses already named and the primary physician’s deposition on the horizon, the plaintiff was forced to settle her case at a discounted amount, far below the initial settlement offer.

The client blamed the attorney for not preparing her case better or advising her properly about the initial settlement offer in light of her doctor’s opinion and her unfavorable past medical history.

Thanks to the Wisconsin Lawyers Mutual Insurance Company for their permission to re-print this article.