Personal Injury FAQ
A valid personal injury claim consists of three elements:
- 1. Liability — Someone or some entity (company) must be legally responsible for your injury because of doing something that someone should not have done or not doing something that should have been done. This is commonly referred to as, “negligence.” The most common example of negligence is a rear-end auto accident.
- 2. Causation — You must be able to prove that the person’s negligence was the cause of your injury. In a rear-ended accident case, the question of causation is automatic when we’re talking about the damage to the car, but not absolute when the question of personal injury is concerned. It is the lawyer’s job, with the help of your physician, to prove that the accident caused your personal injury, and therefore your pain and need for medical treatment.
- 3. Damages — The term “damages” refers to what effect the accident had upon you, the injured party. “Damages” refers not only to physical damage to your vehicle, but also to the cost to either repair or replace it. It also refers to medical bills and/or lost wages that were caused by the accident. These are commonly known as “out-of-pocket” damages, or “special damages.” Lastly, and often most importantly, the term “damages” refers to payment to you for your temporary or permanent pain and suffering, loss of future earning capacity, disfigurement, or in some cases death of a loved one.
The 10 most important things to know after an accident that may result in a claim:
1. Whose insurance company wants to know?
Know the difference between YOUR insurance company and THE OTHER PARTY’S insurance company. Your insurance company is there to help you (although it may also become your adversary if the other party is not insured or not adequately insured). You have a duty to cooperate with YOUR OWN insurance company, but NO OBLIGATION to the other party’s insurance company.
2. Should I give a recorded statement, either in person or over the phone?
This is where a lawyer can help you in the early stages of your claim. You should give a recorded statement to YOUR insurance company, but to no other person, whether that person is an insurance adjuster, representative of a law firm, an attorney that you have not retained, or any other person. If you’re not sure who the person is that is asking for the statement (and that they work for your insurance company), then don’t speak to them about the accident or your injuries. Insurance adjusters often act as if they are entitled by law to take your recorded statement, which is not true. Generally speaking, insurance companies that are not your own will ultimately seek to use a recorded statement against you and not to help you.
3. Are my claims for property damage and personal injury the same?
No. After an accident, you have separate claims for property damage and for personal injury. The property damage claim is usually settled not long after the accident, if there is no question as to fault for the accident. The setting of the property damage claim does not affect your claim for personal injury, medical expenses, lost wages, etc. Often, the lawyer retained to handle your personal injury claim will assist you with the property damage claim as a courtesy, although not always.
4. How and when will my medical expenses be paid?
This depends on many factors. There can be many sources for payment of medical expenses after an accident. Ultimately, the insurance company for the party responsible for the accident will have to pay all of your medical expenses, which ends up being a part of the settlement or jury verdict at the end of your case. But along the way, while your personal injury case is pending, your medical expenses may be paid in one or more of the following ways:
a.) Medical payments coverage (“Med pay”) — In automobile accident cases, insurance coverage follows the car, but if not the car, then sometimes the person. “Med pay” coverage will pay up to a certain amount per occupant of a car for medical expenses, regardless of who was at fault in the accident. If you were an occupant of a vehicle, whether your vehicle or someone else’s, and whether you were the driver or the passenger, if there is “med pay” coverage on that vehicle, then the insurance company for that vehicle will pay your medical expenses up to the limit of “med pay” coverage. Limits of “med pay” coverage can be anywhere from $1,000 per person to $100,000 per person. The nice thing is that your medical bills will be paid by the auto insurance company under the “med pay” coverage as soon as they are incurred instead of you having to wait until the case is settled or tried in court. This often allows you, as the injured party, to obtain medical treatment if you don’t have any other type of medical coverage. “Med pay” coverage may also exist in other types of accidents, such as fall down cases when the insurance policy of the place where you fell has “med pay” as part of its insurance coverage. Once again, medical payments will be made regardless of whether the accident was your fault or someone else’s fault, and payments will usually be made without too much delay. If and when you receive a settlement or jury award, however, the insurance company that made the medical payments is entitled to be reimbursed for the “med pay” payments that were made. This is known as a subrogation lien, and your attorney will usually negotiate and handle the payment of any subrogation liens on your behalf at the end of your case.
b.) Your own medical insurance — Your own medical insurance company will pay medical bills that are associated with an accident that is another person or another entity’s fault. Your medical providers will usually submit the bills to your medical insurance company just like any other time that you go to the doctor or hospital. The medical insurance company will usually assert a subrogation lien (see above) seeking reimbursement for any medical expenses that have been paid on your behalf.
c.) Medicare or Medicaid — If you were covered by Medicare or Medicaid at the time of the accident, or any other similar government program, that program will pay your medical bills that you incurred as a result of the accident, just as any other bills that you typically incur. Once again, the governmental entity will often have a lien on your settlement proceeds, which must be negotiated and paid at the time of your settlement with the responsible party.
d.) Letters of protection — If you have none of the above types of insurance coverage or government benefits, (and sometimes even when you do), your attorney may provide written assurance to your medical providers that they will be paid from your settlement proceeds at the conclusion of your case. Often, the medical providers will, upon receipt of the letter of protection, refrain from collection efforts against you because they realize that there is a good chance that they will be paid at the conclusion of your case, even though there is no guarantee that they will in fact be paid because there can be no guarantee that you will receive compensation from the third party or the third party’s insurance company.
5. How do I know what my property damage claim is worth?
Your property damage claim is worth either the cost to repair your vehicle or to replace it. Reasonable minds may differ, however, on the value of your car, but sources such as “blue books” or certain websites are often consulted to determine these values.
6. How do I know what my personal injury claim is worth?
This is, as they say, “the $64,000 question.” The bottom line: your personal injury claim is worth what a jury decides it is worth if you go to trial. Of course, most personal injury claims are never decided by a jury, so your claim is worth what you and your attorney are able to convince the opposing insurance company that it is worth. In other words, all parties involved try to predict what a jury would say if the case were tried. This is where the lawyer’s experience is key. Naturally, the hope is to settle the claim for as much or more than we believe the jury would give as compensation; although when the case is settled, no one ever really knows what that figure would have been. Most importantly, the case is never settled without your deciding to do so after having been advised by your attorney along the way.
7. Can I, as the injured party, affect the value of my personal injury claim?
Yes. Unfortunately, injured clients probably more often affect the value of their claims negatively than positively. Why is this true? Generally, because of a lack of knowledge or experience on the part of the injured party, but also because of the injured party’s lack of responsibility when it comes to following through with timely medical treatment.
8. How do I avoid negatively affecting the value of my personal injury claim?
Make sure that you do, or in some cases avoid doing, the following things:
a.) Avoid “gaps in treatment.” — Insurance adjusters just love to tell lawyers who represent the injured party that the lawyer’s client had a “gap in treatment,” or several “gaps in treatment.” While we all know that we don’t run to the doctor or physical therapist every time we have a pain, the insurance industry likes to argue to lawyers, to injured people, as well as to juries, that if the injured party didn’t go to a doctor for a period of time, the person either wasn’t hurt, or wasn’t hurt as badly as he or she claims. The other claim from the insurance industry is that if the person had gone sooner or been more diligent about treatment, the person’s injuries might have resolved either easier or completely, and this is often a very true statement. So, to avoid the “gap in treatment” argument, and in order to have the best chance of maximum physical recovery, you should be very diligent about following up with your doctor and/or physical therapist regularly. Do not miss appointments. Do not fail to perform your home exercises that were prescribed. Do not fail to follow up with doctor or therapist if you still have pain. When you have pain, it is not only important that your condition be appropriately treated, but also that your condition (pain) be documented.
b.) Be truthful and accurate when speaking to your medical providers. — Sometimes, the things you say to your doctor or therapist can be used against you by opposing attorneys, and even taken out of context. For example, when you say, “I’m fine today,” does that mean that your day is going well or that your pain level has improved or your pain is gone completely? It is of the utmost importance that you never exaggerate your pain level or ability to perform certain tasks. By the same token, it can also be detrimental to your case to give a false impression by what you say to your providers that you are no longer having any physical symptoms. If you’re still hurt, say so. If you’re better, say so, but make sure you clarify the degree and meaning of “better.”
c.) Always inform your attorney right away about any past medical conditions, criminal convictions or employment problems. — Credibility is everything when it comes to personal injury claims. Insurance adjusters, defense attorneys and, in the event of a trial, jurors, are going to form an opinion about what kind of person you are. If you are perceived as less than honest, the value of your case, whether for settlement purposes or at trial, will suffer. The person who caused the accident is responsible for aggravation of any preexisting conditions. Admit the previous medical treatment or condition — don’t try to hide it! The same is true for criminal arrests/convictions. Most criminal arrests/convictions are not admissible in personal injury cases. Your attorney will know which ones are admissible and can deal with the issue, but not if you fail to tell the truth about your past. The same holds true for previous employment problems, such as past firings or poor performance reviews. Tell your attorney about any of these things. Remember…credibility is everything!
9. Will I be reimbursed for lost wages (missed work)?
Yes, but not right away. Unlike Personal injury compensation claims where you are reimbursed for lost wages while your claim for compensation is pending, no payments for lost wages will be made by the insurance company until a settlement is reached. The lost wages will be calculated by your attorney with assistance from you and your employer. The figure will be added to the total medical expenses to form a starting point for placing a value on your overall claim. Lost wages are merely one component of the overall personal injury claim. The total claim usually consists of various components, as described in the answer to Question 3 above.
10. When should I consult an attorney?
It never costs money to at least consult almost any attorney about a personal injury case. Most personal injury claims are handled on a percentage where the attorney receives a percentage of the compensation that the attorney helps you obtain. If no recovery is obtained, there is no fee owed. So, you can’t really hurt your case by consulting an attorney shortly after the accident, but the opposite can be true. By failing to consult an attorney, you could make any of the mistakes discussed above, including settling your claim before you have reached maximum medical improvement. Settling your claim too early may well mean that you have settled your claim for much less than you deserve.