Q-What if I only have a soft tissue strain that needs only minor medical treatment?
A-If this is how you explain your injuries to an attorney, I suspect that you will not need legal representation. Just be sure that you do not have a genuine, lingering problem that needs medical treatment later on. Get an MRI and if it is completely negative and your doctor agrees that it is negative, the insurance adjuster would love to settle your claim for a nominal amount. But once you agree to settle your claim, your case is permanently closed. So make sure you have completely recovered from this collision.
Q-What is a preservation of evidence letter and should my lawyer send one?
A-If you are involved in an automobile accident and the defendant or a third party (County or City) has evidence (such as a video tape) of the intersection where the accident took place, this preservation of evidence letter will require anyone who has evidence relevant to the case not to destroy this evidence. This letter could add value to the case and protect the client's interests.
Q-What if the police officer summoned to the scene of my automobile accident did not accurately report the facts on his accident report?
A-Clearly, there is a lot of information that the law enforcement officer must collect at the scene of the accident. But if there is a major error in how a collision diagram was sketched out, or if you were cited for speeding and the officer attributed the accident to you and not the person who made a left turn in front of you, you have a problem.
The adjusters use these errors to completely deny any liability (responsibility) for the injuries you may have sustained.
If you come to me for representation with a police report showing you at fault, I will listen to your story BUT the odds are that I will not take your case.
There is an exception, though. Suppose the traffic lights were under video surveillance (as in a school district). Suppose there were witnesses whose names were not on the police report.
In those cases and in others, I will ask you to pay for a private investigator who will take the police report and interview ALL witnesses, collect all videos and THEN go talk to the police officer to see if an addendum is in order.
If so, you have just turned your case around completely. But without such an expense (about $1,000 to $1,500), you can kiss your case good-bye!
Q-What if I told the police officer I was not hurt at the scene of the accident?
A-A number of my clients state to the police officer at the accident scene that they do not need to be taken by ambulance to the ER yet, by the time they get home, or later in the evening of the day of the accident they feel the pain of the impact.
Generally speaking, this is not a problem so long as you go to the ER or to your family doctor the next day or so. There is wide spread knowledge that an impact can take up to 24 to 48 hours to produce soft tissue symptoms. Nevertheless, insurance adjusters will still try to use this delay in treatment as a talking point to reduce the value of the claim.
There are a number of accidents and injury clinics in Metro Atlanta that specialize in auto wreck cases. The better ones have multiple offices so a person can be examined almost immediately after an automobile accident. Some of these clinics have a wide array of doctors that are in their staff, such as an orthopedic surgeon, neurologist, pain management doctors, neuro surgeons and chiropractors. However, do not expect to see any of these specialists (except chiropractors) on the first day you present yourself for medical treatment. Most assuredly you will see a P.A. (physician's assistant), then be given diagnostic tests (the best clinics have the MRI's and CT Scans in house), then be referred to either chiropractic or possibly physical therapy.
The real question to be asked is how authentic is the reputation of the accident clinic? The longer the clinic has been in business, the more people they treat and get a somewhat dubious reputation with the insurance companies. Why so? Because the medical reports, especially on exclusively soft tissue claims, all look alike. This seems to create suspicion on the part of the insurance companies which tends to drive down the value of the case.
Q-Is it OK to discuss my legal claim with the insurance company adjuster who “works” for the fellow who caused my accident injuries?
A-If you have hired a lawyer, then certainly you should not speak to the insurance adjuster. They are ethically not allowed to talk to a person who is legally represented.
But if it is early in your case, and for some unknown reason you STILL have not hired an attorney to represent your interests, talking to the adjuster will get you in hot water.
The adjuster might smooth talk you into giving a recorded statement. The adjuster will ask you to sign medical authorizations so they can get your medical records, not only of your current injuries, but any past medical treatment you may have received for any condition whatsoever.
The adjuster will tell you to submit your bills to them and “they will review then for payment.” Really? I don't think so. The adjuster is looking to set their reserves on your case. The value of the reserves will be set very low with a small number of medical bills
If the adjuster can convince you that he/she has your best interest at heart and is looking to settle your legal claim for a “reasonable value,” then you may end up settling your claim unknowingly. If you have had a few weeks of treatment for a low back strain and you are CONFIDENT you have completely healed from your auto accident injuries, sure, why not settle directly with the adjuster.
But, if you have been seriously hurt, do not deal directly with the insurance adjuster about your injury case. You will never, never, get a fair shake.
There is an old expression that goes well here:” The person who represents himself/herself has a fool for a client”.
Q-What if I stop medical treatment for a while? What effect does that have on my case?
A-We call this “gaps in treatment.” These gaps are legal case killers. Why would you stop medical treatment if you argue you are genuinely hurt and need continuing care? Is it because you went to Chicago to tend to your ailing grandmother? Or you went to a funeral of your uncle? Both of these “excuses” are valid IF for a very limited time. What is limited? Well, that is in the “eyes of the beholder.” All of this goes to credibility of you and your medical condition.
Certainly if you and your doctor agree to suspend physical therapy to see how you do without it, AND this is in the office notes of your doctor, then there SHOULD be no problem with the treatment gap. This is still a very tricky situation. All adjusters are trained to look at gaps, if any, in your treatment and to use the gap as a way to draw a line in the sand as to the end of your treatment.
If you receive a lumbar epidural injection, your anesthesiologist or pain doctor or orthopedic doctor may want you to go for 3-4 weeks without any other treatment so see how the injections works for you. This a common. But don't wait 8 weeks before returning to the doctor for follow up.
So, some gaps in treatment are a natural occurrence and some are not. Common sense should prevail.
Q-If I am on social media before my automobile accident, should I continue after my wreck?
A-Insurance adjusters are quick to hire investigators to check up on your social media entries after an automobile accident. Why would they do so? Ultimately, it is to minimize the money they will end up paying you at the time of settlement of your claim.
But in the short run, if what they see on your social media entries is vastly different from what you are telling your doctors about your medical condition, you have just “torched” your case.
How can you expect anyone (especially a calloused, negative, insurance adjuster) to believe you are seriously hurt due to the auto wreck if your social media entries show you dancing at a birthday party for your cousin? Or on a cruise ship sliding down one of those water filled tubes into the swimming pool below?
You will be judged very quickly to have no credibility at all. And your legal/insurance claim for damages will be completely challenged.
Q-If I handle my own automobile accident case, will I get the full value for my claim?
A-I suspect you will not be getting payment for your lost wages. You may have used vacation or sick pay for time off getting medical care. Will you be reimbursed for this benefit from the insurance company?
How about the medical bills, especially from the hospital and radiologists who see you in the ER? You will be getting many bills, monthly, for their services. When do you pay them back? Can you negotiate the cost of their ER treatment? When is the best time to do so?
These are only a few items that you need to deal with when you handle your own injury claim. Yet, lawyers have the experience to address these problematic issues daily.
Q-Should I handle my own automobile case?
A-Auto adjusters are, by and large, a bunch of narrow minded, penny pinching, negative people who believe that the insurance company money you are seeking is “their” money.
Almost no one can get as much money from the insurance adjusters as a well-experienced attorney. The adjuster would love to deal directly with you and not with your lawyer. Adjusters handle hundreds of cases a year. You are handling your first or possibly second. So that makes you a pro? I don't think so.
Automobile accident cases should be handled by an attorney from the beginning, as quickly after your actual accident as possible. There are many reasons for this statement. See the question below.
Q-Why does my group insurance company want reimbursement for my medical bills in my automobile accident case?
A-Your group insurance company has a right of subrogation. This term means that if another party, company, organization is responsible for the cost of your treatment, your group insurance company will want their money back.
Lawyers who have experience in handling automobile accidents can negotiate with the group insurance companies to take less money as reimbursement. There are a number of factors involved, such as how much money did you ultimately receive for your injuries from the at fault party and their insurance company. The lawyer can usually make a truthful and persuasive case for a decent reduction of the medical charges paid by your group insurance, especially if you were unable to receive in settlement sufficient funds to pay all your medical bills!
Q-Can my family doctor be in charge of my medical treatment after my automobile accident?
A-While family doctors are many times our best friends, they generally do not like to get involved in automobile accident cases. Smart family doctors will quickly refer you out to a specialist, if they know one. But a bit of cautionary advice here: If you see a family doctor right after your automobile accident, you MUST tell the doctor about your automobile accident. Withholding that information will cause you immense headaches at many different levels in your claim for money benefits.
The most obvious is that the claims adjuster will need to see these records and if you have not detailed your automobile accident and medical condition to your family doctor right after the accident, how can you expect the adjuster to believe you were actually hurt? You will have just “tanked” your case. Period.
Family doctors have almost no experience with who the specialists are who treat automobile accident victims. This is another reason why you need to talk to a lawyer who can guide you to quality specialists in the medical field.
Q-Are chiropractors considered quality medical providers in the eyes of the insurance company adjusters?
A-First of all, adjusters will attempt to discount any and all doctor care you receive in order to “low ball” your treatment and the value of your claim. I had an adjuster call me in 2020 to tell me his company discounted the orthopedic care my client received because “it was not necessary.” Heavenly days! Who makes that decision?
The problem with chiropractic treatment is that the treatment notes kept by the Chiropractor are horrible. They are hand-written notes that cannot be read by anyone. Symbols are used, short-hand notations are used and no one can understand them.
Orthopedic doctor notes are almost always typed up for each visit with a diagnosis, plan of treatment and an interpretation of various testing that has been performed.
Chiropractors treat three (3) times a week for six (6) to eight (8) weeks and then pronounce the patient well. There is little individual assessment. Quick care, minimal improvement. This leaves you, the patient, scratching your head, wondering why you are still in pain and why all the treatment you received did little good.
Orthopedic or neurologic care has a way of getting to the diagnosis sooner. These doctor disciplines do tend to give medicines (that mask the pain) and refer you to physical therapy for 3-4 weeks. This is not too much better than the chiropractic treatment.
Q-What is the value of my automobile accident case?
A-Without trying to sound like a lawyer who is dodging the answer, there are quite a lot of factors to consider. Here are a few that I tell my clients right up front at our first meeting to manage their expectations:
- Did you break a bone at the scene of the accident? If so, your case has more value due to the impact, your need for more extensive treatment, the pain and suffering from a broken boke, the possible limitations in range of motion from the broken bone and possibly due to limitations in work ability causing a substantial wage loss.
- Was your car (and the defendant's car) declared totaled after the accident? Pictures of mangled cars tend to demonstrate to the claims folks that genuine injuries resulted from the collision. Of course, this is not always true. Low impact collisions can cause huge injuries. It is just more difficult to prove or more difficult to convince others (adjuster, jury members) that the injuries were so extensive when you drove your car away from the scene of the accident.
- Did you begin treatment immediately after the accident? In other words, were you taken by ambulance to the local ER from the accident scene?
This is but one element of the extent of your injuries. This turns into a “money pit” when the local hospital performs every test known to man, then sends you a bill for $28,000 but you need no further medical treatment after the ER evaluation. This scenario does not have the elements of a “good case.”
Generally speaking, if you were not bleeding at the accident scene, not in pain, told the police office you were OK, refused to go to the ER, and you were able to drive your car away from the accident scene, you will find few lawyers that can turn this “sows ear into a silk purse.”
Q-With so many lawyers out there advertising they handle auto wreck cases how do I know which one is the best for me?
A-No matter which lawyer you view on the web, most of them will have one or two testimonials from real clients they have helped. Most automobile accidents cases settle before the two year statute of limitations to file a lawsuit arrives. As a result, your lawyer must know how to direct your medical care to quality doctors, counsel you appropriately on the right steps to take throughout your case and be able to negotiate effectively with the insurance adjusters and with the providers of medical services in your case.
The lawyer should have a staff who can answer your questions and who can move your medical care forward without creating gaps in treatment and without allowing the medical treatment to become excessive.
Start by examining Google reviews given by the lawyer's previous clients. See if you get a good feeling about how the lawyer communicated with his former clients. That should tell a lot. Lawyers need to be good “people persons.” Competency is ALMOST as important.
Check with the Bar Association for prior legal malpractice claims. And do not forget to ask the lawyer if he/she has a current policy of legal malpractice insurance in force for his/her practice.
Amazing but no prospective client or existing client has ever asked me this question. And yes, I do have a very extensive legal malpractice policy but have never had a claim filed against me.
Q-If my medical treatment at a large accident clinic gets me better, should I stop or continue on to better my legal case?
A-Excessive medical treatment is harmful for your case and seems to me to be unethical. It is, however, up to you to communicate with your doctor, your P.A., your therapist and your chiropractor, and tell them you need no further care when you reach that point.
You are the consumer of medical care. You must be wise with the quality of medical care you receive and you must know when to stop that care by informing your care giver you are better.
Do remember, that while you and your lawyer have possibly made arrangements to obtain treatment on a “lien” you will be expected to pay for it out of the settlement of your claim. If you over-treat, the clinic will over-bill and at settlement you will be the one who is underpaid!
Q-Can I sue the defendant who negligently caused my accident over the limited amount of insurance he/she purchased?
A-These type of cases are tragic. If my client needs a cervical spine surgery due to the defendant's negligence, yet this negligent numbskull had purchased only $25,000 of liability insurance (the minimum required in Georgia), my client is “up the proverbial creek without a paddle.”
If your attorney sends a demand letter according to certain legal standards for the policy limits of $25,000 and the insurance company refuses to settle for this amount, at the trial of the case (about 4 years later) a jury could award damages for an amount in excess of $25,000 and the insurance company would be liable to pay the full amount under what is called “bad faith.”
But what is even more likely is the insurance company recognizes your damages are extensive, probably far over the mere $25,000 of policy limits, and tenders the $25,000. If there is no other insurance available to pay for your serious losses, wage loss, permanent impairment, loss of future wages and pain and suffering, then you are left with the option of suing the individual personally.
Frankly, no lawyer wants to do this unless the defendant has lots of personal assets to collect a judgement from. But if this same defendant has lots of assets, a large house, a business, lots of cars or real estate, that defendant would be smart enough to have a much larger policy or policies of insurance so as not to lose these property assets.
If you did sue the defendant personally and could prove you had, for instance, $300,000 of damages, and a jury could grant you that amount, now you have to go and collect this amount. You would then have to hire a collection lawyer to chase this fellow all over creation to find his assets. Then the defendant could bankrupt against a jury decision.
So, the sad news is that you would have little or no chance of collecting over the “hypothetical $25,000” from either the insurance company or from the defendant.
But, there is hope. It is called Uninsured or Underinsured Coverage. Let's talk about this form of insurance next time.
Q-What is UM (uninsured motorist) Insurance and do I need it?
A-First of all I hope you already have purchased the insurance before reading this question and answer and certainly before your automobile accident.
Uninsured motorist insurance is insurance you purchase so that you are covered in case the person who hits you has insufficient insurance to cover your damages. Of course, you must purchase this insurance from the same company you purchase your liability insurance. Common amounts are $50,000, $100,000 and $250,000. It is relatively inexpensive. You must ask for it. Georgia law does not require you to have UM coverage.
If you have damages, due to a neck surgery resulting from an automobile accident, and your medical treatment costs and wage losses mounted to $175,000 and the negligent defendant purchased only $25,000 of liability insurance, if you had $250,000 of UM coverage you could demand your insurance company pay $175,000 minus $25,000 to you in settlement of your claim.
It is amazing how many drivers have minimum insurance coverage ($25,000) or many have no insurance at all. You need UM to protect you and your family if you are seriously injured and you have no group insurance to pay for your extensive medical treatment. Don't wait! Purchase this insurance now!
Q-What if I am hit and injured by the negligence of another driver who flees the scene of the accident, never to be found?
A-Be sure to report your accident to the local police and get a police report. So long as you have previously purchased UM insurance, you may still present your claim/case to your own insurance company. You can still seek lost wages, medical payment reimbursement, permanent injury and pain and suffering. It is as though the law sees the runaway vehicle as an uninsured driver, activating your policy to pay for your damages.
Q-f I am at least partially at fault for the auto collision, do I still have a good case?
A-Most lawyers will say no to represent you if you were at least partially responsible for the automobile accident.
Now, having said that, if your injuries were major, meaning loss of leg, a hand, a huge clearly demonstrated herniated disc injury, some lawyers would take your case. You need to realize that if you were partially at fault even with the injuries I suggested, the insurance company will deny all responsibility. This forces your case into litigation and most likely a jury trial to determine who was at fault.
In these type of cases you will need to have a serious investigation of the facts surrounding the at fault issue right up front. All possible witnesses need to be contacted. A conversation with the police office will be necessary. Without a reasonably favorable outcome from this investigation, you will have difficulty winning your case no matter how injured you are.
Q-Will my prior injury or my prior medical condition ruin my automobile injury claim for damages?
A-Do realize that at some point in your current case the claims adjuster will discover that you had a prior injury, a prior claim and possibly a prior medical condition (a chronic neck or back or hip condition not related to any claims).
Full disclosure is mandatory but just when you provide that full disclosure is a key factor. Do not give a recorded statement to an adjuster without an attorney being present. You will also need to obtain all prior medical records to determine the relationship of the old injury to the new automobile accident injury.
Your lawyer needs to try and obtain from your former medical providers the nature of your old injuries and when you were completely healed and reached maximum medical improvement from those injuries.
It gets much more problematic if you had a prior accident that produced a minor strain or sprain, got extensive treatment, hired an attorney and the attorney argued in his settlement demand that you will need treatment for “the rest of your life” due to the severity of this prior injury. How can you say that your prior injury was of no significance when the lawyers makes such a statement on your behalf?
But if your prior injury has healed or your medical condition is not now painful, and then you were negligently injured by another driver, you should still be entitled to just and fair compensation for your current injury.
A fair settlement will involve collecting all old records possibly getting the doctor for the old injury to issue a statement or a report addressing your condition when the doctor dismissed you so that you can prove your new injury was NOT a mere continuation of your prior accident or medical condition.
Adjusters look to every possibility to lower the value of your injury claim. Pre-existing condition is one of the elements they like to use in their bag of tricks. If you document, document and give full disclosure, it will not allow the adjuster to hit this target
Q-MEDICARE AND PI CASES
A-In many of our auto accident cases and in some of our workers' compensation cases Medicare pays a bill that is generated for medical treatment. It is usually an emergency room bill because the emergency room business office grabs the first card they can from the distressed and injured person, and many times that card is a Medicare card instead of a group insurance card or a workers' compensation employer's name and number. Medicare will pay the bill.
However, when the parties arrive at a point where they want to settle their claim if Medicare has paid a bill, then Medicare needs to be reimbursed. The lawyer who represents the injured person must see that reimbursement to Medicare is part of the settlement. Many of us lawyers, for years, have not taken this matter very seriously to reimburse Medicare. Now, the U.S. Department of Justice's Attorney's Office (in this case for the District of Maryland) issued a press release on March 8, 2019, stating that they just settled a case with a plaintiff's law firm who had not re-paid the Medicare Conditional Payments Department as set forth in the Medicare Secondary Payer Act and related statutes, rules, and regulations.
In Philadelphia, a Personal Injury law firm settled allegations that the firm failed to reimburse the United States for payments made by Medicare to medical providers on behalf of the firm's clients. The settlement called for repayment on the part of the law firm to the tune of $250,000.
These two enforcement actions are very clear reminders that when a party fails to reimburse Medicare, the United States CAN recover the conditional payments from attorneys or others who received settlement proceeds, specifically 42 C.F.R. Section 411.24, provides a right to recover payments from a primary plan or “any entity” including a beneficiary, provider, supplier, physician, attorney, State Agency, or private insurer that has received a primary payment.
These enforcement actions demonstrate the risks of ignoring responsibilities and failing to comply with measures under the Medicare Secondary Payer Act. It should be a simple matter to run a “conditional payment search” and to address any balances owed in advance of or as part of the settlement. Talk to your attorney and make sure this has happened because anyone can be sued for failure to repay Medicare.
Q-Access to Physicians
A-There are many times when a client comes to me in an automobile accident case and they are treated by a doctor who has not ordered any diagnostic testing. How on earth can one establish a proper diagnosis when the doctor will not take the time to order a CT scan, an MRI, EMG, or a nerve block or any other diagnostic testing? It just cannot be done.
One of the rules that we have in our office is that we must make determination as to what is the diagnosis of our client's condition. Simply put, one cannot properly treat without proper diagnostic testing. We do our best to analyze medical records and the current medical treatment in light of that diagnosis. We also spend much time in determining the right doctors that our clients can use. We try to persuasively convince our clients' insurance company to allow for those particular doctors to treat, even if it costs additional money and time. These are important behind the scenes decisions that we make with your consent and it can make a big difference in your case results.
Q-Is a clarification of an offer to settle to be constructed as a counter-offer in an automobile collision case thus, opening up the possibility of a “bad faith” claim against the insurer.
A-The answer is yes. In a recent case decided by the Court of Appeals but whose appeal was denied by the Georgia Supreme Court, Liberty Mutual's desire to change the release document included as an essential part of the settlement, was determined to be a modification of the settlement offer. Liberty Mutual argued that they were not changing the offer to settle. They lost this argument on the subject to a “bad faith” claim for failing to settle within their policy limits.
They say that “the devil is in the details.” Here the details were a pretty big deal. Many lawyers who settle their client's auto wreck cases, now have clarification from the court that an offer must be accepted “as is” without modification to avoid exposure to pay greater sums in “bad faith” claims.
Q-Can a fender bender auto accident produce a large jury verdict?
A-In a 2019 auto wreck case tried in Eastman, Georgia, in November 2019, what started out as a minimum two car collision, ended with a jury verdict for the plaintiff of over $430,000.
The defendant pulled into a left turn lane to make a left turn. The plaintiff accelerated and pulled up next to defendant, maintaining his lane. Suddenly, the defendant decided she was no longer going to turn left. As the defendant pulled back into the lane to her right she collided with the plaintiff. Both cars were driven from the scene.
The plaintiff did feel shoulder pain and eventually had shoulder surgery for a rotator cuff repair.
Farmers Insurance Company, a rather belligerent insurance company for their low ball payment tactics, had a $250,000 policy of insurance covering the defendant. Right before trial they offered $38,000. Ultimately the jury awarded $429,355.
The take away here is that even a minor collision with genuine medical damages can produce a large verdict if handled properly. Too bad that Farmers Insurance Company did not offer closer to their policy limits to settle. Apparently the plaintiff would have accepted a lot less than $250,000.