Episode #20 - Mark Blane - Empathy in California Injury Law & Impairment Ratings

California Attorney Mark Blane shares his perspective from the California injury law system.

  • 00:10:11 - 05:10:11

    Jerrod Bailey 00:04

    Welcome, everybody to Reimagining Healthcare: A New Dialogue with Risk and Patient Safety Leaders presented by Medplace. We're excited to bring you conversations with top risk and patient safety thought leaders from organizations around the country. Please subscribe to get the latest news and content and if you find this valuable this episode, please share it with your colleagues to get some meaningful dialogues created in your own community. If you'd like to participate as a speaker some time, feel free to email us at speakers@Medplace.com My name is Jared Bailey. I'm the CEO of Medplace somebody's playing host today. And today I'm joined by Mark Blaine, owner of the Law Offices of Mark Lane APC. Hey Mark.


    Mark Blane 00:59

    Hey, how you doing? Jared?


    Jerrod Bailey 01:01

    I'm well I'm well. Let's see I got a little bit of bio information here. You tell me how close this gets to reality here. But what I've gotten you is San Diego, California personal injury and accident attorney, best selling author to the selling legal author yet to tell me a little bit about that. But Mark Blaine specialize in I specialize in personal injury law since 1999. Your recent book, a wolf in sheep's clothing, recently hit the amazon.com best selling bestsellers list in the insurance category and a crack the top 50. In the personal finance category. I love it. So a little bit of an author.


    Mark Blane 01:39

    Yeah, a little bit trying to get some information out to the public so they can make informed decisions, right?


    Jerrod Bailey 01:45

    Yes, indeed. That's great. I was this is totally off script. What was that process? Like? What motivated you to?


    Mark Blane 01:53

    Yeah, well, so the book that hit that Amazon, this was a co-op with several other lawyers. And so we just decided to put some information together in different fields for the public to make informed decisions about what they need to do with their legal case. And it's from everything from health care, injury, just a broad spectrum. And it did really well on Amazon. And so it's still there, if you ever want to get a copy.


    Jerrod Bailey 02:20

    Oh, I love it. I'm going to go look for it right after this cruciate that. So all right. So give me some of your origin story here. Marco, how did you get into Injury Law?


    Mark Blane 02:29

    Right. So I just during school, I just was really passionate with biology and anatomy. I always loved the law, I knew I was going to be a lawyer when I was a little, little kid. So I think just merging those three disciplines together, it was just something awesome to be in personal injury. So that was something that motivated me. And I think it appealed to my attention to detail when it comes to like, anatomical features, the biological process, how we get injured and how the body heals. So those disciplines kind of shape where I am now. I think that's great.


    Jerrod Bailey 03:03

    My daughter, she's 15 and a half. And she, her team just won national competition for mock trial. Oh, so I'm afraid I might have an attorney in my mind before. Before too long.


    Mark Blane 03:16

    No, that's great. It sounds like a prodigious one as well.


    Jerrod Bailey 03:19

    That's right. The apple falls really far from the tree. So that's good. So Tell, tell us about your role in the workers compensation process? Like where do you come in?


    Mark Blane 03:31

    Right. So I'm not a pure 100% Workers Compensation lawyer? Um, yeah, go? Yeah. So I'm the I'm the third party lawyer, I go after the at fault party that chose to not follow the safety rule, if you will. That's not connected to the employer. So I go after those third party claims. Not every worker's compensation case is going to have a third party claim. In California, there's the exclusive remedy rule, which I'm sure it's mimic by maybe every other state in the United States, where if you can't go after a third party, then you're limited, your recovery is limited just to the workers compensation process. So I will go after the third party that caused the injury. And that could be if we use the car crash as an example, let's say you're a UPS driver, you're delivering packages, you get injured in a car crash, you got two claims in California, you got your workers comp, compensation claim. And then of course, you got that third party claim to go after the at fault driver. I'll take the driver side. And then it needed there'll be a lawyer for the workers compensation side.


    Jerrod Bailey 04:34

    Got it. Got it. So what does it mean to you to be a voice of the injured person or the injured worker that if the case may ping


    Mark Blane 04:46

    you right, so for me, it's a great privilege and honor to be in this position to help folks who just have been injured a lot of times it's very expensive to even get a lawyer. That's why I love the fact that in personal injury law, we can offer the contingency fee relationship. This allows people from all financial means to have access to the courthouse, if you will, the key to the courthouse, but because of that, and because they're injured in a lot of times, I take serious injury cases, it's a great responsibility as well. So not only am I honored to be that voice for the people that need it, but I feel like I do a very good job. And I'm very detailed in what I do. And for that, it's an honor. So


    Jerrod Bailey 05:29

    I have to imagine you have a lot of empathy in your position, right? And yeah, this is probably the scariest time for some people.


    Mark Blane 05:36

    Yes, empathy is very key, not only to helping your own client that's been injured, but if it goes to trial, believe it or not, you got to have empathetic listening to the jurors. So it's, it goes, it goes full circle, it starts with your client, as a human being who has been injured by someone who was just wasn't following the safety rule. And then we have to communicate that and keep that relationship all the way through trial, if it goes that far. And then at that point, we've got to then listen to the jurors and jury selection to make sure we're getting the right fit for that particular for your particular client. So I think empathy, and empathetic listening, and is a foundation to not only holding that relationship key throughout the process, but also through fruition of the entire having an effective outcome



    at the end of Yes, well,


    Mark Blane 06:25

    absolutely. Yeah, that's



    great. So California can be there in a lot of ways. It's got similar injury law systems and laws, other places, other places, it's a little bit different. We have a national audience, what would what would you say is maybe different about or set apart from California's Injury Law? Well,


    Mark Blane 06:46

    I can comment on the, perhaps the American Medical Association impairment rating, so the California workers compensation system, I think, in mid 2006, or seven, adopted the AMA fifth edition for their impairments, which is really coincidental for me, because I've been using the AMA guidelines, since I've been a personal injury lawyer, and not every case is going to warrant a finding of impairment. But I, it's great to hear that the worker's compensation system in California does allow it because I use it all the time in my practice. And so just briefly, I'm sure your audience knows the AMA fifth edition guidelines, but it's just the objective finding the most objective way to document any impairment. So you can you can argue for that future pain and suffering instead of just shooting from the hip, if you will. And also it gives a basis for the juror or the mediator or judge for, for accounting for pain and suffering and whatnot. So I think that if California is the only state that we're one of the many states that has the AMA guidelines, either it's set, it's set apart from the other states that don't, or maybe all the other states use it as well. But that's one thing that comes to my mind is Yeah,


    Jerrod Bailey 07:58

    that's interesting. Yeah, and I don't know, I don't know how many states have adopted that. But you know, if any, anybody watching this kind of wants to leave in the comments in their state, what you see as what your states adopt for now, it'd be super interesting for me to know, now, and we deal with here at my place, we deal with diabetes. I mean, you and I were talking before the show, we got a platform where doctors around the country basically get connected easily with companies who need their advice on things. And so I Emmys is something that's top of mind for us. And I it might have even been how we found you. But you've created several articles and videos, about ironies, and specifically the drawbacks for them and right, so Right, right. Can you unpack that a little bit for me? Yeah, what makes a good idea or a bad one? Like, right,


    Mark Blane 08:48

    right, your perspective. And it's not to say that every defense, medical, and we call them defense medical exams on the plaintiff side, but it's not to say a defense medical exam is going to always be bad. What becomes bad is when you have a doctor that is routinely abusing the biases, if you will, that's inherent within a defense medical exam routinely. In those cases, you have to be watchful, that's why it's good to have your ear to the community of your colleagues. Because we do talk. We have list serves hearing in San Diego, we and then we start seeing who are the new defense doctors that the insurance are using for these defense medical exams. And so depending on which doctor that's going to be, I'll strategically I'll go to I'll go to that exam. Most of the time, I'll be going to the exam with my clients. And it's very I don't go in there with Hey, I'm recording this unless I absolutely need to, but that's really rare. I just go in there with the expectation that we're both professionals, this defense doctors doing their job, and they're going to write the report based on the medicine, not based on their bias. And then if it is a bias This type of report, then, of course, either we settle the case, or we'll let the community of the juror jurors decide who's more credible here. But I think that's the only part where it gets bad is when you have a defense doctor that's beholden to the insurance company's interest to get more business, if you will, because you're providing these more of a biased opinion. But there are a lot of good defense doctors I've worked with in San Diego over the over the years, that are not in that category, I'm gonna say, and that's, that's nice to see, because we're all professionals just doing our best for our individual clients at the end of the day.


    Jerrod Bailey 10:38

    Yeah, that's great. And it really is interesting, like coming from a technology perspective, I talk a lot about system design. And when you see flaws in the system how do you how do you design for those flaws, right? And how do you how do you create systems that either mitigate bias or eliminate bias or at least even just measure or account for it? All really interesting questions to ask, because you're looking at, I think, because I think what both sides are interested in is a fair system that achieves justice at the end of the day. And you know, what, what things in it are just sort of inherently built with flaws, I think is an interesting question to ask, because literally, everything solvable, but


    Mark Blane 11:19

    Right, right, get the right problem. And we both want to verify that fence in the plaintiff bar want a fair fight? And it I think it just serves the interests of justice at the end of the day, if it's, if there's a fallacy going on, and it's been repeated. But that's why we have a jury, right? Because juries can see through that, and they can, they can assess and use their common sense. They've been around for a while they can make decisions one person, one person making one decision is not as good as 12 people collectively making a decision. And so that's kind of the process. Yeah, like,


    Jerrod Bailey 11:55

    again, I think it all goes to system design, like how do we Yeah, that's why we have a jury of our peers. Right. It's to help counteract some of the issues that happen when you don't have those things in place.


    Mark Blane 12:06

    Right. So system in the world to my dad. Yeah.


    Jerrod Bailey 12:09

    Yeah, it's interesting. I haven't spent enough time studying other systems to really kind of look at what other experiments are going on what other things have happened. And at the end of the day, what's the data show about you know, how these different these


    Mark Blane 12:23

    Yeah, that would be? That would be interesting. I know that when it comes to jury trials, we're the only last bastion country that allows for both criminal and civil matters and all matters. For example, I think England, they still have course, civil jury trials, but only for product defect cases. I don't think they have it for injury cases like we do the United States. No kidding. Yeah. And I know that India, was interested in the San Diego court system about 10-15 years ago, they did a study of how efficient we are with our court system here. And they want to emulate that.


    Jerrod Bailey 12:56

    It's great. Yeah. Okay. All right. Well, we'll start with talking about system design and friction inside of the system. If that's part of the system, right? If you create two sides, and then you create friction between the two, you're going to you know, it's it can be uncomfortable, but it's also part of coming to the right answer. Is it possible to get on the same page as defect defense counsel, in the interest of the injured worker? Like what was Yeah,


    Mark Blane 13:22

    yeah, absolutely. Now, like you have good and bad defense doctors, occasionally, you have a good and bad defense lawyer. Like I said, we're mainly professionals. And that's something that's neither here or there. I always get along with defense counsel whenever possible. And if there's any disputes that come about with that relationship, it's usually in discovery. And so we'll have to go to the judge and figure out discovery, which happens rarely. And of course, judges do not like that they want. They want this to be seamless, and efficient. And there shouldn't be Don't drag down my docket with discovery issues that you gentlemen should, or ladies should have all figured out. But nonetheless, from time to time, we do have defense counsel that tried to test the code and stretch it to certain aspects and what's a while liable, and we do have to meet with the judge on that. But that just comes with time and experience. And I think as I grow with that, it just something you just have to recognize that is it's adversity in life we don't just have it in an injury case. But you know, life's not perfect. We're not living in a perfect world. So I think, just press on through that. And it always gets resolved.


    Jerrod Bailey 14:31

    Yeah, it's great. Yeah. Well, so life care planning is always a topic. It's a topic on both sides. It really sort of defines the debate in some cases, right. What you get any perspective on that? You are you playing any role in the life care planning process yourself?


    Mark Blane 14:50

    Yeah, as far as not every case is going to need a Life Care planner. Of course, not every series is going to need one but there are cases that do need one and that's Those were the cases that are the more serious injuries or injured cases I have. And I'll use that to my experts, like plant life care planners to figure it all out, because is detailed, as you know, had one case recently where the guy fell from a 16 foot defective ladder, had 14 surgeries, wit almost passed away in two of the surgeries. So of course, we got to have a life care plan on this one. So yeah, I leave that to the experts to get those details in line. And that is part of the damages that the client is going to need to depend on, either through mediation, settlement or trial. And we have a good team of life care planners that I've sometimes employ on case here in San Diego, and they do a terrific job. And if it goes to trial, they're very good with testimony. Because a lot of times it's about communication with the jury, because there's a lot of technical terms with life care plans, I explained. So yeah, yeah, so we touch on it. But like I said, I just don't, of course, I don't do those. That's why I got experts that do it. But definitely something that we have here in personal injury,


    Jerrod Bailey 16:08

    it's top of mind for us, because we're getting asked more and more by clients, if we would expand into that space. Right now we have a lot of doctors and nurses, right, because you need clinical opinions on things. But, but there's other types of experts or there's other types of doctors and nurses that have specific backgrounds that lend themselves to be able to do you know, certain types of life care plans, or especially when you have certain kinds of injuries and things like that in play. So you know what I found coming from seeing other industries, I've done some other stuff in healthcare, but being here at my place now, like seeing how healthcare works, it's amazing how much inefficiency and friction there is in the marketplace, when you have this expertise in the world to be able to do these types of certain types of things, but actually finding them is engaging them and putting them to work and getting the result you want out of them is, is challenging. And that's what you find with with a marketplace, there's a lot of friction involved. And you see in other industries, how they've solved it by by making these kind of marketplace plays to be able to do that. So and it's top of mind, I hear it a lot. And it is sort of a, especially if it's a type of case that requires a life care plan. It's such a critical piece in the middle. Right, how both sides are approaching it is interesting to me.


    Mark Blane 17:22

    I usually find them needed on multiple surgery cases. Yeah, a lot more than on single surgery. But definitely an important piece of the damages that a person has the right to claim.


    Jerrod Bailey 17:34

    So I always like to ask this question. This is going off script again, too. But you've been in the industry for a while. And you've seen, I'm sure you've been frustrated with things that you know, take a long time or difficult to do. Is there any is there any place where technology should be? Like I've got here, I've got this great technology, background and platform. What are the things we had a magic wand and you could have technology sort of solve for something industry? What things come to mind defending? Well, I


    Mark Blane 18:03

    do a lot on occasion, we do focus groups. So having a good video, audio equipment is always some tactical equipment, we need to have employees, especially on novel issues that come about with personal injury law. I think with trials don't need to get too fancy with it. Some jurors that's changing. You know, having a PowerPoint is a lot more entertaining in presenting evidence than if not having one. But then again, there's bad PowerPoints and there's good PowerPoints. So far as far as that Oh, tech, here's one that comes to mind. Collision reconstructionists they're getting a lot better in terms of graphics in terms of reproducing the, let's say a major car collision or multiple car collision event. Yeah, those are good. The jurors respond in focus groups respond really, really well to really good produced reconstruction not only with the collision itself, but also the plaintiff and the way the plaintiff body moved. And yeah, these anatomical features to these videos. And so that's, that's really changed and last 10 years


    Jerrod Bailey 19:18

    really illustrates for the the layperson, like what's what actually happened and what what's really material value just to understand it. And you know, Kevin also seen this in other industries, how visuals can be used to storytel and really help anchor people in concepts that then can travel through the rest of the, of the trial and be used at closing right as, as just kind of an anchoring sort of mental thing. It's not used often enough or when it's used. I don't see it done very well in Brighton setting,


    Mark Blane 19:51

    right. Here's a book. There's a book on this called I think it's something like Don't tell me show me. Yeah. And that's something that you're kind of touching upon there with your point. Yeah, you want to the it is part of the history is the video reproduction is a part of the injury story itself. And if you can enter, weave that with your story, it's going to communicate much more effective to the jurors or mediators, because I've seen good presentations actually help settle cases in mediation, and you don't have to go all the way to a jury trial. So absolutely. And that's what we're because as a plaintiff word, I'm ultimately a storyteller. And I'm taking the jury on a journey through a story and they're gonna finish the final chapter.


    Jerrod Bailey 20:35

    Yeah. I mentored hundreds of startup founders over the years in startups have a problem with stories, they have to take something that nobody's ever seen before, and tried to try to somehow tell the story of why you might need this thing. Right. Right. Ever had it before. And all of a sudden, they need to convince you that you need it, right, this piece of software, this app or whatever, it's, you didn't know you needed it before. Right? That's right. Yeah. And, and these can be concepts that are really complicated. And so good storytelling means that you can take something even potentially complicated and explain it in a way that your grandmother can go, oh, I can see the value of that. That makes sense, right. And that's a hard thing to do. And as you're as you're working with juries, you're going to have a whole cross section of Americans that you're that you're having to bring along. And they're all starting from different starting places, right. But a good story with understandable data behind it can really be impactful.


    Mark Blane 21:29

    We are Wired for Story, storytelling, hearing a good story ever since we're little The first thing we hear stories for our mom and dad says right?


    Jerrod Bailey 21:37

    Brain, your brain clicks over into a different position. Right? And we're in story story listening mode, right? That's right. It's really fascinating. It is what's great. I actually know somebody who does really good visuals for courtroom settings. If you ever looking for any nab you in the comments are like, hey, that would be great. All right. Tell us in the comments. But okay, great. So Mark, anything else that you'd like to touch on? Was there a drum that you beat all the time that you're like, I just I, as often as I can get this message out? I'd like to,


    Mark Blane 22:09

    I think I just tell people look, not every case is going to need a lawyer. Right? But every case deserves good legal counsel and that way. So you can make an informed decision on what you need to do with your options. So that's one thing I drumbeat all the time, not only just now with my marketing, but when when I meet a client, or for the first time on the phone, say, Look, you may not need a lawyer here, or you do and here's why. And then I also offer free ebooks on my website for anyone who's interested in knowing more about that. So


    Jerrod Bailey 22:40

    that's great. I love it. Yeah. Love it. Anybody who's willing to take the time and effort to write a book has had enough to say at that point to like, yes.


    Mark Blane 22:49

    Yeah. I mean, you see the defense point of view all the time. So I just wanted to put in paper look, this is what you're going to expect it you have to if you have this situation for you or your family. So yeah,


    Jerrod Bailey 22:59

    that's great. Well, Mark, it was a pleasure. Yeah. Likewise, getting to hear a bit of your story today. And thanks for touching base with base with us. For those of you who want to connect with Mark, I think I've got your LinkedIn I can post that we'll put your contact information up in general, but generally speaking, where should they reach out? Oh, they can


    Mark Blane 23:19

    just email or call me. You can put my LinkedIn. I'm over social media, then your website is Blaine law.com.


    Jerrod Bailey 23:28

    Well, in law.com, that's B L.


    Mark Blane 23:30

    A N E. Yeah, no, I know I in the blank.


    Jerrod Bailey 23:35

    It's always good, too. Good to remind people. Well, listen, everybody. Thanks for listening to reimagine healthcare, a new dialogue with risk and patient safety leaders. Subscribe and Share if you found it valuable. And if you'd like to participate again, its guests just email us at speakers at Medplace.com. And make sure you do follow mark and connect with him on LinkedIn. And thank you, Mark, for being with us today.


    Mark Blane 23:56

    Thank you for the invite. I really appreciate you doing that. So thank you.


    Jerrod Bailey 24:00

    Anytime. All right, good luck. You will I'm sure we'll be in touch.


    Mark Blane 24:03

    Sounds great. Thanks to your Alright. Bye bye

Mark Blane joins Medplace to discuss California workers' compensation and injured worker system elements. He describes his role in taking on third-party claims, using impairment ratings, and how defense and plaintiff lawyers can compromise in the interest of the injured worker. Blane also covers IME bias.


Guest - Mark Blane

Owner of Law Offices of Mark Lane APC

San Diego California Personal Injury & Accident Attorney, and Best Selling legal author, Mark C. Blane, has specialized in Personal Injury law since 1999. His recent book, "A Wolf in Sheep's Clothing" recently hit the Amazon.com Best Sellers list in the insurance category, and it cracked the Top 50 (#42) in the personal finance category.

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