Anatomy of a Personal Injury Case.
March 26, 2010
Introduction. Here I will explain the basic steps that a typical personal injury case will follow. Although not every case is the same, there is a common procedural thread that starts from the time of the accident up until either a settlement or a trial. We will use a simple car accident as our example. Let’s assume you are involved in an accident in which you were rear-ended by another vehicle. In our example, we will also assume that the police came to the scene and actually made a police report. Please note, however, that many police departments have stopped coming to accident scenes and making accident reports unless an ambulance is needed, either vehicle needs to be towed, or the drivers are not cooperating in exchanging the necessary identification and insurance information.
Step One: The first three days. The first step is determining the need for initial medical treatment. You might decide to go to the emergency room by ambulance from the accident scene. You might even decide to go to the emergency room later that day or even the next day. If you think that you are hurt, but don’t require a visit to the emergency room, you should make an appointment with a doctor. At this point, you should also be considering talking to a lawyer. Get a lawyer on your case right away so that your case can be properly monitored from the very beginning. Once you have seen a doctor for an initial evaluation, you may need further treatment or physical therapy. If you have health insurance, you and your lawyer will decide whether you should use your health insurance. If you do not have health insurance, or you choose not to use your health insurance, then your lawyer should be able to make arrangements with a doctor to delay collection of his bill until after the case settles.
Step Two: The first week. At this point, you should be set up with a doctor on a treatment program. Meanwhile, your lawyer is doing an number of things. He is ordering the police report and setting up the claims with the other person’s insurance company as well as your own automobile insurance. Sometimes the claims have already been reported by now, but the lawyer will at least send letters of representation to each of the insurance adjusters. Your lawyer is also making arrangements to have your car inspected and repaired. Your lawyer will probably instruct you that the adjuster will contact you directly regarding the property damage part of the claim. The adjuster will set up a time and place to inspect, photograph, and appraise the damage to your vehicle. Once that is done, the adjuster will suggest that you take the vehicle to one of their approved body shops to start the repairs. You are not required to use their approved shop. You can take the vehicle anywhere you want. Either way, the adjuster will approve the repair of the vehicle and also approve a rental car. You will then take the vehicle to the body shop and pick up your rental car.
Step Three: The first month. At this point, you are probably still treating with your doctor and making some improvement. Your car has probably been repaired by now. Your lawyer has started to build up your file with documentation such as the police report, and any emergency room medical records and bills. He may have also contacted witnesses to get more accident details and contact information. All that is left is to wait until your doctor releases you from treatment.
Step Four: Release from your medical care. When your doctor decides to release you is a decision left up to you and your doctor. If he decides that you are not improving at the proper rate, he may order an MRI or a consultation with a specialist. Either way, the goal here is to get the proper medical treatment so that you may fully recover from your injuries. You may only need physical therapy, or you may need further treatment, such as injections, pain management treatment, or even surgery. Once your doctor decides that you have reached MMI (Maximum Medical Improvement), then he will release you from his care. The most important thing is to get you well.
Step Five: Submission to the insurance company. After you are released from treatment, your lawyer will proceed to collect your remaining medical records and bills so that he can prepare to submit a settlement package to the insurance adjuster. The adjuster will receive the settlement package, review it, and evaluate it for possible settlement. The evaluation process takes about two or three weeks. The adjuster and your lawyer will then have a series of back-and-forth settlement discussions in an effort to resolve your claim to your satisfaction. The goal is to get a settlement figure which is sufficient to pay your doctor bills, case expenses, lawyer fees, and still leave enough money left over for your pain and suffering. Most cases settle at this point. If so, then the adjuster will send your lawyer a simple release form and the settlement check.
Step Six: Filing a lawsuit. If you are not able to settle your case with the adjuster, then you and your lawyer will have to decide whether to file a lawsuit. Filing a lawsuit is the only way to prosecute your rights if you cannot reach an agreement. That doesn’t mean you still cannot settle your case. The parties are free to settle the case at any time during the lawsuit process. Rather, it just means that the parties are at a “stale-mate” in the negotiations. Your lawyer will draft the lawsuit, file it with the proper court, and serve the suit papers on the other driver. On a few occassions, the adjuster may attempt to revive settlement discussions once he learns that the lawsuit has been filed. If not, then the insurance company will hire a lawyer to represent their driver.
Step Seven: Pre-Trial Discovery. Once the lawsuit is filed, then both lawyers will engage in a detailed and comprehensive exchange of information, documents, and deposition testimony. This process is called “discovery” and can take anywhere between 4 – 8 months, or even longer in more complicated cases. Discovery usually involves the parties obtaining and exchanging documents and information such as medical records and bills, police reports, photographs, damage estimates, witness statements, insurance policy information, employment information, income tax returns, driving records, criminal records, and deposition testimony. Rarely do case settle within the discovery stage, although the parties are free to do so if they can.
Step Eight: Mediation. Once the parties are satisfied with the information they have obtained and exchanged during the discovery stage, the case will proceed to mediation. Mediation is simply a settlement conference. Mediation presents the best opportunity to settle your case in the lawsuit stage. Generally, the Court will order the case to mediation. However, the parties can also agree to attend mediation on their own. The typical mediation consists of you and your lawyer meeting at the mediator’s office, along with the defendant’s attorney and the insurance adjuster. The mediator is usually an attorney but does not have to be an attorney. The mediator is trained and experienced in dispute resolution. After a brief joint introductory session, the mediator will break the parties up into their own private rooms. You and your lawyer will be in one room, while the defense lawyer and the adjuster will be in another. The mediator will then shuttle between each room explaining how the case should settle. If the mediator is successful in working out a settlement between the parties, then a “Memorandum of Settlement” will be signed by you, your lawyer, the defense lawyer and the adjuster. All that is left at this point is to have the adjuster and defense lawyer issue the settlement check and prepare the final settlement papers.
Step Nine: Trial. If you are unable to settle your case at mediation, then you may have to go to trial. That doesn’t mean you cannot settle your case after mediation and before trial. Remember, a settlement can made by the parties at anytime in the lawsuit process, even during the trial. Trial takes a great deal of preparation for you and your lawyer, but it may be your only option if you are unable to get your case settled. Because of the huge back-log in our courts, sometimes it may take two or more years to actually get to trial. Although the prospects of going to trial may be intimidating to some people, most cases do not go this far. About 80% of cases settle without even a lawsuit being filed. Even if a lawsuit is filed, about 95% of those cases actually settle without going to trial. Sometimes, however, a small percentage of cases cannot settle and a trial is the only option.
I hope this helps take some of the mystery out of the claims process. Keep in mind though that every case is different and must be judged on its own merits. No two cases are exactly the same, and no two clients are exactly the same. That is why it is important to hire a lawyer as soon as possible. Having the proper legal representation early in the process will reduce the risk of your case being mis-handled and increase the chances of a more favorable outcome.
Top 5 Do’s and Don’ts of a Personal Injury Claim
March 24, 2010
Below are some common issues I have seen throughout my career in handling personal injury cases. Although they represent the most common issues that arise, there are many other circumstances that can effect the proper handling of a personal injury claim. This posting is intended to highlight the importance of consulting a lawyer in order to avoid the many traps and pitfalls that can be devastating to your injury claim.
1. Don’t delay seeking medical treatment. Delay in seeking medical treatment is probably the most common problem I have faced with personal injury cases. If you are injured in an accident, then common sense dictates that you would seek medical attention within a reasonable time. You would either go to the emergency room, make an appointment with your primary doctor, or find a doctor to help you. The longer you delay in seeking medical treatment, then the more difficult it becomes to convince someone that you were really injured or that injuries were caused by the accident. However, so many people still delay in seeking medical treatment for many reasons. One common reason is that the injured person hopes everything will just get better on its own. However, a few days turns into a week, which turns into two or three weeks. Before you know it, a month or more has passed. The best practice is to seek medical treatment as soon as possible. If your injury is serious enough, then go to the emergency room by ambulance from the accident scene. Others may choose to go home first, and then decide later that day to either go to the emergency room or make an appointment with their doctor. Either way, the injury has at least been documented close in time to the accident.
2. Don’t quit your treatment or fail to follow your doctor’s advice. This goes hand-in-hand with the previous issue. Again, if you are legitimately injured, then you will be expected to follow up with your medical treatment and follow your doctor’s advice. Always be truthful with your doctor about your complaints and be sure to follow his advice about your treatment. If you are unable to keep an appointment, then it is fine to call the doctor and reschedule. However, don’t just stop treating on your own and try to be as consistent as possible with your medical treatment.
3. Don’t give a written or recorded statement. Let’s assume you are involved in a car accident. You then receive a call from the other driver’s insurance adjuster who states that he needs to get your “recorded statement” regarding the accident. You either believe, or are led to believe, that you are required to give this statement. Likewise, you give the recorded statement. In the statement, you inadvertently say something wrong or leave something out. You have just hurt your case. The recorded statement can now be used against you in the future. Here’s the basic rule-of-thumb: NEVER GIVE A WRITTEN or RECORDED STATEMENT WITHOUT CONSULTING A LAWYER. You are not required to give a statement of any kind to the other person’s insurance company. However, you might be required to give a recorded statement to your own insurance company. Either way, the best practice is to have the benefit of legal representation before deciding whether to give a written or recorded statement.
4. Don’t try to handle the case yourself. Another common problem is that many clients decide that they would do better to handle the case themselves. That’s like bringing a knife to a gun-fight. Only a lawyer knows your legal rights. If you choose to handle the case yourself, you are at a huge disadvantage when dealing with an experienced claims adjuster. If you handle the case yourself and then later decide you need a lawyer, you might run into some difficultly finding a lawyer that will take your case since there is a good chance that the case is now “tainted” by something you might have said or done. I always tell potential clients that they are more likely to do more harm than good when choosing to represent themselves. That makes it more difficult for a lawyer to help them in the future.
5. Don’t wait too long to hire a lawyer. Many people wait too long to hire a lawyer. Many times this is because the client tries to handle the case themselves or because the client is intimidated by the legal process. Delay causes a multitude of problems, such as evidence getting lost or destroyed, and eye-witnesses relocating. But even more important is the “statute of limitation.” Every personal injury claim must either be settled or a lawsuit filed within a certain period of time or else your legal rights will expire. If you wait too long to hire a lawyer and the deadline is quickly approaching, many lawyers may decline taking the case because he is now pressed for time in properly investigating the case, gathering the evidence, preparing and filing the lawsuit, and serving the defendant with the lawsuit. Therefore, you run the risk of being left without proper representation as the statute of limitations approaches. The best approach is to hire a lawyer as soon as possible so that you have the advantage of an experienced professional helping you from the very start.
How Insurance Companies Handle Your Injury Case.
March 13, 2010
IT IS IMPORTANT THAT YOU KNOW HOW YOUR PERSONAL INJURY CASE IS HANDLED BY THE INSURANCE COMPANIES
By reading this page, you will gather valuable information about the role an insurance company plays when you make a claim for personal injuries.
There are different duties and responsibilities that an insurance company has depending on the type of insurance coverage.
DISCLAIMER: This page is provided for informational purposes only. Every case is different and you must not substitute this information for competent legal advice. Rather, the information is intended to highlight the benefits of hiring an attorney who can best protect your rights.
LIABILITY INSURANCE
Liability insurance provides coverage for the damages that a person may be legally liable to pay to another person as a result of an accident. The insurance company will usually investigate the claim and pay any damages it deems proper. Likewise, the insurance company maintains complete and exclusive control over the handling of the claim. The insurance company will also hire an attorney to defend the responsible party should a lawsuit be filed.
Example: You have a car accident with another vehicle. You claim the accident is the other driver’s fault. The other driver’s insurance company will investigate the claim by reviewing all the pertinent facts, police report, medical records and bills, and photographs. If the insurance company determines that their driver was at fault for the accident, it may choose to offer you a settlement for your losses (car repairs, medical bills, lost wages, pain and suffering, etc.).
It is important to know that liability insurance represents and protects the liable party. The liability insurance purchased by the other driver is just that – it is their insurance and not yours. Likewise, the insurance company only has a duty to protect and defend their insured.
If you are unable to settle your claim with the insurance company, then you would have to file a lawsuit against the other driver. The law does not permit you to sue the insurance company directly. If you choose to file a lawsuit, then the other driver’s insurance company will hire a lawyer to defend the other driver against your claim.
To add insult to injury, should the case proceed to a trial, you would not be allowed to mention to the jury that the other driver has liability insurance, nor can you tell the jury anything about your prior dealings with the insurance company. In effect, the insurance company you believed should be helping you is, in fact, protecting the other driver.
This is how liability insurance works: It protects the other party for his/her liability. THE INSURANCE COMPANIES HAVE EXPERIENCED PEOPLE WORKING FOR THEM – AND YOU SHOULD TOO!!!
Most claims, however, are settled without the need for a lawsuit or a trial. But understand that any settlement with the insurance company is for the benefit of the liable driver in obtaining a full and final release of your claims.
UNINSURED and UNDER-INSURED MOTORIST COVERAGE
1. Uninsured Motorist Coverage.
Unfortunately, not everyone carries liability insurance as they are legally required to do. If you have the misfortune of having an accident with someone who is uninsured, then your uninsured motorist coverage will cover the damages that the uninsured driver would be legally liable for. Your insurance company will investigate the claim and make a determination of whether the uninsured driver is at fault, and how much he/she would be legally liable to pay for your losses.
2. Under-Insured Motorist Coverage.
With this type of coverage, the other driver has liability insurance, but the insurance is insufficient to cover all the damages you sustained. Now, you can file a claim with your insurance company for the damages in excess of what the other driver’s liability insurance was unable to cover.
Under each of these circumstances, your insurance company now takes on the role of the other person’s insurance company. The difference, however, is that you are now the protected party since this is coverage that you purchased for your own protection.
PERSONAL INJURY PROTECTION (PIP)
Personal Injury Protection (“PIP”) is insurance you purchase to cover medical expenses and lost wages you incur as a result of an accident. The benefit is that this coverage is payable to you regardless of fault in the accident.
Another added benefit is that PIP is recoverable regardless of anything you may collect from the other person’s liability insurance. Furthermore, you do not have to reimburse your insurance company for PIP benefits if you collect from the liability insurance company. The only time your automobile insurance company gets credit for any PIP benefits paid is when your claim is for additional uninsured or under-insured motorist benefits.
HEALTH INSURANCE
Health insurance is separate and apart from automobile insurance. If you are injured in an accident, especially if the injuries are severe, it is always beneficial to use your health insurance. This way, you get the medical treatment you need without relying on the other person’s liability insurance.
If you happen to collect a settlement from the liability insurance company, then your health insurance company may have a right of reimbursement for the medical bills it paid. However, their reimbursement right is usually much less than the amount of medical bills actually incurred, and might be further negotiated to an even lesser amount. The net effect is that you are usually better off reimbursing your health insurance company than paying the medical bills directly out of any settlement.
NEVER UNDER-ESTIMATE THE BENEFITS OF HIRING A LAWYER WHO KNOWS YOUR RIGHTS!!!