What are the things to do, or not do, or to be aware of, after an automobile, motorcycle, bicycle, pedestrian, slip & fall, trip & fall, dog bite, or other injury accident?
- What are the most important things for me to do right after the automobile accident to protect my personal injury claim?
- What should I NOT do after my automobile collision?
- Is there a problem if I did not have liability insurance coverage on my own vehicle at the time of the accident, even though the other party caused the accident?
- What is meant by a “contingency” fee?
- What is “Med-Pay” and how can I find out if I have it?
- I am worried that if I have my own insurance carrier pay my medical bills under “Med-Pay” they might later raise my insurance premiums, so why can’t I just have the negligent party’s insurance carrier pay my medical bills as they are being incurred?
- Since I lack health insurance I’m wondering if my treatment could be done on a lien basis and if so how do treatment liens work?
- What is included in my property damage claim and how and when does it get resolved?
- What do I need to know about preserving evidence?
- What are the major factors affecting the value of my case?
- Can I settle my case now and reopen it later if I need surgery?
- What is the collateral source rule and how does it benefit me?
- What is the difference between a lien and a reimbursement claim?
What are the most important things for me to do right after the automobile accident to protect my personal injury claim?
What to do after an accident? One of the important things to do is to contact the CHP or other applicable law enforcement agency immediately and request that an officer be dispatched to do an investigation and to prepare a report. If you can not get this accomplished be sure you get the name, address and telephone number of any and all independent witnesses. Also, you might see if you can persuade the negligent party to write out on a piece of paper how the accident occurred or even to expressly admit fault. This is sometimes possible when the negligent party is afraid of police involvement and thereby can become surprisingly cooperative. If you are able to secure this make sure the paper is dated and signed.
Another important thing to do if you are injured is to get prompt medical attention. You should strongly consider going to the nearest hospital ER where you can be given an examination by an M.D, receive x-rays and pain medications. If you fail to get prompt medical attention the insurance adjuster and defense attorney on the other side will use this fact to make the contention that you must not have received anything greater than minor injuries. If your injuries are significant the last thing you would want to do would be to hand the opposing insurance adjuster, or the defense attorney, ammunition that he or she will surely use against you to deny or minimize your claim. In short, go to the doctor promptly and do this even before you give thought to hiring an attorney.
If your injuries are significant enough to justify pursuing a claim for compensation you must obtain good follow-up medical care. An intensive course of treatment not only strengthens your personal injury claim but also enhances your prognosis for a full recovery. One way to do this is to get your M.D. to give you a prescription for a course of physical therapy. Another way is to undergo a course of treatments provided by a chiropractor that specializes in treating traumatically caused auto accident injuries. The major caveat here is that the nature, extent and cost of your medical treatment must be “reasonable” and this must take into account the magnitude of the physical forces at work at the time of the collision. This is a complex and important legal issue that you should ideally discuss at the Landis Law Firm or with another qualified personal injury attorney.
Take numerous photographs with a quality camera in good light (not in the shade) of your damaged vehicle, including several close-up shots centered on the area showing the most impressive damage. Make sure that at least one photo shows the license plate. This should be done before the body shop begins any repair work.
You probably should not go to work immediately after your accident if you are in a lot of pain. If you have sustained significant injuries your body will need a lot of rest to promote the healing process. Also, if you do go back to work immediately it will give ammunition to the insurance adjuster or defense attorney who will later contend that your injuries must have been very minor or else you would have been incapable of immediately returning to work. If you do miss work and your doctor confirms that you were too injured to return to work you would almost certainly get compensated later for your lost earnings. Also, if you do have to miss some time from your work it will tend to show that your injuries were serious. This could enable you to get more compensation for your pain and suffering when your case is settled.
Finally, another important thing to do would be to contact the Landis Law Firm today for a free consultation.
Communication is one of the most important and often overlooked, aspects of the attorney-client relationship. Knowing where you stand in a difficult time of your life can be very comforting and important.
What should I NOT do after my automobile collision?
There are dozens of things which could damage your claim and you should avoid doing them if possible. These are the most important ones to be aware of:
- Don’t give a recorded statement to the insurance adjuster.
- Don’t give a signed records authorization to the insurance adjuster.
- Don’t delay in starting your treatment.
- Don’t lose or fail to preserve important evidence.
- Don’t tell your doctor you have a legal claim.
- Don’t have big gaps in your treatment.
- Don’t have “No-Shows” appear in your treatment record.
- Don’t hire and then fire numerous doctors.
- Don’t fail to tell your doctors about all your injuries.
- Don’t personally meet with the property adjuster. (That person will be secretly observing and noting “body language information” to use against you later when you settle your injury claim!)
- Don’t sign a Release before getting a legal consultation.
- Don’t disregard the Statute of Limitations!
Is there a problem if I did not have liability insurance coverage on my own vehicle at the time of the accident, even though the other party caused the accident?
Yes, under Proposition 213 enacted by the voters of California in 1996, if you were operating your vehicle that was uninsured at the time of the accident you will not be able to collect compensation for your pain and suffering, however you would still be entitled to recover compensation for your “out- of- pocket economic damages” such as lost wages, the damage to your vehicle and reimbursement of your medical bills. Fortunately, the law does not bar a passenger in an uninsured vehicle from collecting full compensation for all damages, including for pain and suffering.
What is meant by a “contingency” fee?
When you retain Landis Law Firm to handle your personal injury claim your attorney, Chris Landis, will be representing you entirely on a contingency fee basis. What that means is that unless your claim is successful (which is defined as you getting money in your pocket) your attorney will charge nothing at all for his professional time and will even waive the recovery of his out-of-pocket costs. This is a great way for you to retain an sttorney because you can be assured that your attorney will work very hard to win your case and will strive to get you the most compensation that is available, given the relevant factors involved in your case.
What is “Med-Pay” and how can I find out if I have it?
Most people who purchase car insurance also purchase “Med-Pay” because there is a very small additional premium for such coverage. If you have “Med-Pay” that is a very good thing because you can (and should) have your insurance company pay for your accident related medical expenses as they are being incurred. Then, later on when a settlement is achieved with the negligent party’s insurance company, you will get your medical expenses paid a second time. To find out if you have “Med-Pay” you can check the declarations page of your insurance policy. If you have such coverage it will also show the limits, such as $2,500.00, $5,000.00 or some other amount. If you cannot locate the declarations page of your policy you can call your insurance agent and ask for information about the kind of coverage you have.
I am worried that if I have my own insurance carrier pay my medical bills under “Med-Pay” they might later raise my insurance premiums, so why can’t I just have the negligent party’s insurance carrier pay my medical bills as they are being incurred?
The negligent party’s insurance carrier will not pay any of your medical bills until after you have agreed to an overall settlement of your entire personal injury claim and have signed a General Release. The reason that the negligent party’s insurance carrier delays payment of your medical bills is that they want to increase the financial pressure upon you in the expectation that it will increase your motivation to resolve your entire claim and to sign a full General Release. It is important to note that if you have your own insurance carrier pay your medical bills under “Med-Pay” your insurance carrier will not raise your insurance rates if the accident was not your fault. It is also important to note that the Landis Law Firm will never charge a fee upon money you receive from your own insurance carrier under your Med-Pay coverage.
I do not have any health insurance so I’m concerned about how I can get treated for my injuries but a friend mentioned getting treated on a lien. What is a lien and how does it work?
First, it is important to recognize that if you get little or no treatment for your injuries the insurance adjuster will only be willing to offer you a very small amount of compensation. On the other hand, if you were reasonably required to get extensive treatment over a prolonged period of time the insurance adjuster can be expected to rate your injuries as being much more serious and he or she will usually offer much more compensation to settle your personal injury case. But there can be a challenging problem when a person who was injured in an accident lacks a good health insurance plan such as Blue Cross or Medicare.
If you retain a personal injury attorney such as Christopher Landis this type of problem can usually be quickly resolved. As soon as you have retained your attorney you will have the possibility of getting your medical treatment provided on a “lien” basis. Medical treatment rendered on a lien occurs where your attorney promises your doctor in writing that he will directly pay the doctor’s bills from the attorney’s trust account at the time of the settlement. Basically, the doctor is willing to render service on a credit basis when assured by the attorney that you have a good legal claim and that the attorney will honor the lien at the time the claim is resolved. This is a “win-win” situation for both you and your doctor. Because the Landis Law Firm has an unblemished record over several decades of honoring its promises there are a large number of doctors willing to provide medical services on a lien basis to its clients.
What is included in my property damage claim and how and when does it get resolved?
When you are in an auto accident caused by the negligence of someone else that party’s insurance carrier is obligated to either repair your vehicle or replace it, whichever costs less. For example if your car was worth $3,000.00 just before the accident and the auto body repair shop estimates that it will cost 4,000.00 to repair your vehicle your vehicle is considered to be a “total loss” and the insurance carrier owes you $3,000.00 plus towing and storage costs, plus pro-rata taxes and license fees plus a rental vehicle from the date of the accident until they pay you for your loss. If your vehicle was not totaled you are entitled to have the repairs done by the auto body shop of your choice. You are also entitled to be provided with a comparable rental vehicle while your vehicle is being repaired or be paid the reasonable value of that cost if you elect not to actually get a rental vehicle. Your property damage claim can usually be resolved shortly after the accident even though your personal injury claim will usually take quite a bit longer. If you have “Collision Coverage” you can either have your own insurance company cover your property loss claim (and then they would seek reimbursement from the negligent party’s insurance carrier) or you can elect to present the claim directly to the adjuster representing the negligent party. If you choose the second option you will usually be required to sign a Property Damage Release. Before you sign such a release make sure that your vehicle has been fully repaired and that you have been compensated for your rental car. Most important, make sure the release does not include your personal injury claim but rather covers only your property damage claim. If you have any doubt make sure you consult an attorney before you sign the release. Please note that the Landis Firm will never charge a fee on your property damage claim but will give you free advice on how to resolve it as long as you have retained it to represent you on your personal injury claim.
What do I need to know about preserving evidence?
The disappearance or destruction of crucial evidence is one of the most frustrating and challenging things that can happen in a personal injury case. This can be a big problem in a wide variety of cases including automobile accidents, trip and fall accidents and sometimes even in dog bite accidents. For example, in a recent case where a female client was attacked by a large German Shepherd there was a very fortunate outcome of the case only because an important piece of evidence had been carefully preserved. Specifically, the torn T-shirt containing the dog’s DNA was sent to a DNA lab and the lab confirmed that the DNA on the T-shirt perfectly matched the saliva sample collected from the German Shepherd pursuant to the court order. Thus, the DNA test disproved the owner’s false claim his dog had been locked inside all day.
Another example would be, in trip and fall accidents in order for the plaintiff to meet his or her legal burden of establishing that their injuries were caused by the fault or negligence of another it is critically important to be able to prove that there was some dangerous feature present at the scene of the accident which caused him or her to trip and fall. But unfortunately what too often happens is that as soon as the property owner is informed of the accident they alter the accident scene to eliminate or correct the dangerous condition. Once the alterations have been made any photographs that are taken can’t demonstrate the nature or magnitude of the defect that existed at the time of the accident.
In trip and fall cases it is extremely important to have good quality photographs taken as soon as possible after an accident has occurred. In order for the photographs to be of good enough quality to satisfy the legal requirements they must be taken at ground level with a good camera, be taken in good light and at a very close distance. All too often the injured person will not be aware of these requirements and will take photos at head height. Often too, they will take the photos while standing up in dark or shadowy conditions and use a disposable camera held thirty or more feet away from the defect that caused their accident.
Not only should the photos be taken with the camera at ground level (or close to ground level) they should include a ruler or yardstick in the scene being depicted. This is important because under California law a trivial or minimal defect is not deemed to be legally actionable. For example if an upraised section of a concrete sidewalk caused the person to trip, a ruler standing next to the defect can be crucially important to establishing that the magnitude of the defect meets or exceeds the legal standard.
What are the major factors which may positively or negatively affect the value of my case?
There are many factors which may affect the value of your case. Some of them are positive factors which will boost up the value of your case whereas others are negative and can be expected to depress the value of your case. The ones discussed below are usually the primary factors but depending upon your particular case there could be additional positive or negative factors.
1) Liability: Can it be established that another person or company was negligent and that you were not negligent?
2) Adequate Money Source: Does the negligent party have sufficient liability insurance and if not (in an auto case) do you have UM/UIM coverage in a sufficient amount to cover the total amount of your damages?
3) What is the nature & severity of your injuries?
4) How many different parts of your body were injured?
5) How painful were your injuries?
6) How disabling were your injuries?
7) Was your employment interrupted and if so can an income loss be documented?
8) Were your injuries able to be resolved or are they permanent?
9) If the injuries got resolved how long did the recovery process take?
10) What is the nature and extent of any permanent residual injuries?
11) Causation of Injuries: What was the mechanism that caused your injuries? Was there sufficient physical force applied to your body to plausibly explain the nature and extent of your claimed injuries? Can it be established with credible medical evidence that the symptoms and problems you are complaining about were caused by the subject accident? Was there an earlier or later accident in which the same parts of your body were injured?
12) Gender and Age: What is your gender and age? Depending on the type of accident that occurred your gender and age may be neutral factors. Alternatively, they might either elevate or depress the value of a particular case.
13) Nature, Timing and Cost of Treatment: Did an ambulance take you from the scene of the accident to the E.R.? Was there a hospital admission? What kind of treatment was given? How long did the treatment last? Was there excessive delay in the commencement of treatment? Was there a significant gap in the treatment? Was the treatment reasonably required? What was the total amount that was paid to the health care providers for all your treatment and was the amount reasonable.
14) Claimant’s Pre-Accident Status: Did you have a pre-existing condition? If so, can it be established that the accident “aggravated” the pre-existing condition in a particular manner for a specified period of time?
15) Recorded Statement: Did you give a recorded statement to the insurance adjuster? If so, this can impair or limit your claim, depending upon what you said.
16) Objective Evidence: Whether or not there is physical or scientific evidence can strongly affect the value of a case. In auto collision cases it is very helpful to have photos showing dramatic damage to the vehicle or else a body shop estimate indicating that the repair costs were over $3,000.00-$4,000.00, ideally including frame damage. Also, in order to objectively prove the nature and extent of your injuries x-rays and MRIs can be extremely important.
What if I settle my case now but after a year or so I discover I need to have surgery. Can I then reopen my case and get the negligent party to pay for my surgery?
Except in workers compensation cases the answer unfortunately is: No, you can’t. Although in workers comp cases you are allowed to leave future medical benefits open, in a third party liability case when you settle your claim you must sign a Release which precludes you from ever making any type of future claim against the negligent party, including a claim for your future medical treatment.
What is the Collateral Source Rule?
The collateral source rule is a fantastic legal doctrine which can put a lot of extra money in your pocket when your personal injury case gets settled. Here are some simple examples of how it works. Let’s say you had a serious automobile accident which resulted in injuries that required you to get $10,000.00 in medical treatment and also prevented you from fulfilling your normal employment duties for 60 days. Let’s also say you had Med-Pay benefits on your own auto policy which paid your medical bills and you received $4,000.00 in state disability benefits during the 60 day period when you were incapacitated from your work. In that scenario many people would think that the negligent person’s insurance company could deduct the $4,000.00 you received in state disability benefits from your wage loss claim and could deduct the $10,000.00 you received in Med-Pay benefits from the medical damages component of your claim since your “out of pocket losses” were significantly less after you received those benefits. Those people would be totally incorrect. The collateral source rule says that the negligent person’s insurance company is not allowed to deduct the value of benefits you obtained from some other unrelated collateral entity. Thus, you can legally and appropriately accept duplicate benefits for the same damages from multiple financial entities. This puts more money in your pocket at the end of the case.
What is the difference between a lien and a reimbursement claim?
To answer the question in the simplest of terms a lien has sharp teeth whereas a reimbursement claim that is not backed up with a lien is more bark than bite. A lien can be created by statute or by contract. An example of a statutory lien would be a claim held by Medicare or Medi-Cal for the reimbursement of the payments that a governmental program made to your doctors for your accident-related treatment. Another example would be a claim held by a hospital for the reimbursement of costs associated with your treatment in the emergency room.
A common example of a contractual lien would be the one you granted to your chiropractor when your treatment began. But whether it is a statutory lien or a contractual lien they must be honored when your case is successfully concluded. Anybody in the chain of custody of the settlement proceeds who fails to honor a valid lien could have personal liability for the unpaid amount. That liability constitutes the sharp teeth. But, if the entity seeking reimbursement does not possess a valid lien, Landis Law Firm will not honor the claim. Certainly, no money would ever be deducted from your settlement as a result of such a claim. Moreover, Landis Law Firm will offer you free advice after your case is settled regarding how you should react to any collector or entity who is harassing you about one of such claims. Nearly always, there is nothing more than barking going on.