January 17, 2011
Should I get medical treatment after a car accident?
Not every car accident results in an injury. But if you are hurt, you should go to the doctor.
I see this all the time. People think, “oh, I’ll just go next week, or the week after.” A doctor’s evaluation is important after a car accident injury. Even if you don’t have something broken, a doctor may diagnose you as having a “soft tissue injury.” This could be a strain, sprain, or even some type of back injury. A back injury could get significantly worse in the weeks after an accident. A doctor can help prevent any further damage.
One of the big problems in waiting to go to a doctor, is that the insurance company for the other side will argue that there’s a “delay in treatment.” That is, after the accident, you waited too long to go to the doctor. So, you probably weren’t even hurt (or “that hurt.”). Insurance companies place a lower value on car accident cases that have any delays in treatment.
January 14, 2011
Car Accidents and Medical Treatment
A recurring problem I see with people that have been in a car accident is trouble finding a medical provider to actually treat them. A lot of doctors don’t treat “third party” cases. That is, they won’t treat someone if another party caused the injuries. Most doctors want to get paid immediately, and with a car accident case, payment usually occurs when the case has been settled.
The real troubling thing I’ve seen is that someone can go to a primary care physician for years, and once they’re in a car accident, the doctor refuses to treat them. The situation is also complicated because, if you’ve been in a serious car accident, chances are you can’t work. So, you can’t pay the bills out of pocket (and then wait to be reimbursed by the insurance company). Basically, the doctor is abandoning them. So, what can you do?
Look for a doctor that works on a “lien basis.” This doctor will file a lien after treating you to protect their claim and they will get paid out of any settlement with the insurance company.
January 10, 2011
What can I expect at my car accident deposition?
A deposition (depo) is often defined as any out of court oral testimony of a witness. It occurs during the “discovery” phase of the litigation process. If you have a depo scheduled for your car accident case, there’s a good chance that you’ve already answered interrogatories. So, it’s often a good idea to review the questions and answers you’ve already seen. The depo will have a lot of the same questions, but the attorney on the other side will generally be more thorough. One of the benefits of having a depo vs. interrogatories is that it is a lot easier to ask followup questions. The depo also gives the other side a chance to evaluate how good of a witness you’ll be at trial.
Here’s a basic checklist of what to expect at a car accident depo:
- Your name, date of birth, and other background info
- How the accident occurred (and who, what, when, where)
- Medical Treatment Info (and often previous treatment)
- Inquiries into lost income
- Inquiries into previous injuries
- Any witnesses
- Injury prognosis
A car accident deposition of the plaintiff will usually last anywhere from 1.5 to 3 hours or more depending on the complexity of the case.
December 13, 2010
Car Accidents and Health Insurance Payments
A common misconception I see all the time is that health insurance companies will “pick up the tab” for car accident injury cases. Here’s a quick example:
Joe gets into a car accident that was caused by Bad Driver. Joe goes to the ER and to several doctors for followup treatments. His health insurance company pays for all the medical bills. Guess what happens if Joe settles with Bad Driver’s insurance company?
Joe’s health insurance company will be reimbursed for what they paid. This is referred to as their right of subrogation. The same thing will happen if the case goes to trial. Assuming Joe gets a favorable verdict at trial, his health insurance will want to be reimbursed.
November 29, 2010
Are we going to have to file a lawsuit for my car accident?
I had a new client ask: “Are we going to have to file a lawsuit for my car accident? I don’t want the stress of having to go to trial.”
Surprisingly (or not, depending on your view), most cases settle. Back in February ’09, I posted a statistic that “about 97 percent of civil cases are settled or dismissed without a trial.”
Mind you, this number doesn’t actually include the number of claims that are settled without a lawsuit actually being filed. A high percentage of car accident claims are settled before a lawsuit is filed. There’s even law firms and attorneys that will not file a lawsuit (trying cases is time consuming and demanding). If they can’t get the case settled pre-suit, they refer their clients to attorneys willing to try cases (like us!). I believe insurance companies facing attorneys that won’t “go the distance” will value those car accident claims much lower. Insurance companies track opposing attorneys, and likely know how much certain firms will settle for.
Here’s a typical time-line of a car accident case:
- Car Accident Occurs
- ER Visits, Diagnostics, Followup Treatments, etc.
- Property damage claim settled
- Once medical treatment is completed or max medical improvement is reached: Our demand packet (summary of your case and offer to settle with all documentation) is sent to the insurance company
- At this point, the insurance company will often offer to settle the personal injury claim for less than the case is “worth”
- Settlement negotiations continue with the insurance company. At this point the adjuster will eventually give their “final offer.” Some times this is reasonable, sometimes not.
- If the final settlement offer is unreasonable, and our client wants to keep going (some people want to “get it over with” even if the offer isn’t for the full value), we file a lawsuit.
- A lot of insurance companies will increase their settlement offer at this point – even if the facts of the case haven’t changed.
- We’ll have depositions and exchange discovery (interrogatories, etc.), and line up any doctors or experts needed.
- Settlement negotiations and preparations for trial continue.
- Sometimes we’ll have a mediation at this point to help get the case settled.
- If settlement talks fall through, the case goes to trial.
November 19, 2010
Where can this Oklahoma City car accident victim sue?
This is almost always a non-issue. After all, with I-35 running through our great state, accidents with motorists from out-of-state are bound to happen.
Example: Someone from Texas rear-ends you here in Oklahoma City. Where can you bring a case against this person, since he or she does not reside in Oklahoma? Do you have to go to Texas?
Fortunately not: In Oklahoma, “venue” in car accident cases is in the county where any defendant may be served or the accident (damages) occurred. This means that in our example, suit could be brought where the accident/injury occurred or where we can get service on the defendant.
November 18, 2010
“Health insurance paid for surgery caused by car accident”
What happens with my health insurance company when they pay for my surgery that was caused by a car accident that was not my fault? Will I get to keep my settlement?
If your car accident case settles (or there’s a court verdict) for damages, you’re insurance company will want to be reimbursed. This is called their right of subrogation. Note that you will still be able to keep the rest of the settlement for your pain and suffering and any lost income that’s included in the settlement.
November 17, 2010
Owing more on your car than it’s worth
It seems like several times a week I meet with someone that was just in a car accident and owes more on their car than it’s worth. Under Oklahoma law, the person who caused the accident does not have to pay what you owe on the car, but the fair market value of the car (assuming it was totaled). How can you help protect against this scenario, and avoid being stuck with car payments and no car to show for them?
Check out GAP Insurance.
Guaranteed Auto Protection (GAP) insurance pays the difference between the actual value of the car and the remaining balance on the loan. Assuming the premium isn’t too high, it’s worth considering adding to your policy.
November 16, 2010
“Why isn’t my auto accident injury case worth more?”
Personal injury attorneys are asked this all the time. I recently had a client, let’s call him Will, ask: “My back was killing me for several months, why isn’t my personal injury claim worth more?”
Here is some background on Will’s case. He was rear ended last year and was rushed to the hospital immediately after the accident. The seat he was in snapped back and Will thought that he had been knocked out. His neck and back were both hurting quite a bit. The emergency room ran up a pretty good bill because they did a CT scan. Will thought he had a concussion and was dazed.
Will checked out of the ER with soft tissue injuries, some prescriptions for a muscle relaxer, and some pain medicine. He was also instructed to go to a follow-up doctor if he was still having neck and back pain.
After missing work for a few days, Will decided he could “tough it out” and went back to work, but his neck and back still gave him trouble. He was in a lot of pain at work and around the house. Two months later, Will’s back is still bothering him, but he’s a tough man and doesn’t bother going to a doctor. Mind you, the ER doctor had instructed him to go a follow-up doctor if he was still hurting.
Will called me about seven months after the accident. His neck and back had finally healed and he was curious as to why the insurance company hadn’t called him and offered to settle his personal injury claim.
The case has since settled for a reasonable amount. At the time though, Will was a little frustrated because he wasn’t able to get compensated for any pain and suffering for the three months that his back was bothering him.
Moral of the story: Go to a doctor if you are hurt! If the pain lingers after initial treatment, don’t try to tough it out; go to the doctor for additional care until the injury is healed. Insurance companies, understandably, look at personal injury victim’s medical records closely for proof of an injury.
October 25, 2010
“Can you receive double medical coverage if you’re in an auto accident?”
I recently received an email posing this question. Here is my reply to the email:
I’m not sure what you mean exactly by “double medical coverage,” but I’m assuming your question is along the lines of: “I was injured in a car accident that was not my fault. My health insurance paid for all my medical bills, so can I keep the whole settlement I get from the other driver’s insurance company?”
Short answer: Probably not. You may be able to get double recovery if you have ‘medical payments coverage’ under your own car insurance company. If you are a named insured, medical payments coverage is not subject to subrogation. Otherwise, if you don’t have medical payments coverage, then generally you cannot get ‘double recovery’ unless the health insurance company does not have a subrogation provision.
Insurance companies often have what’s called “a right to subrogation.” This simply means that they have a right to be reimbursed for what they pay (when someone else is at fault). Note that your insurance company only has a right to be reimbursed for the medical bills. So, they shouldn’t “touch” any recovery you obtain for lost income or pain and suffering.
Let’s look at three examples.
Cliff wasn’t paying attention while driving and runs into Bob. Bob goes to the ER, gets some x-rays, and then is prescribed physical therapy for a few weeks. After a month or so, Bob is completely healed. His medical bills total $4,000 and his insurance company paid them. Then, Bob ends up settling on his own with Cliff’s insurance company for $6,000. Bob’s health insurance company will likely want to be reimbursed the whole $4000. However, we are often able to negotiate for a reduced reimbursement to the insurance company.
Or consider this scenario. The facts of the case are the same, except that the car accident causes Bob to require immediate shoulder surgery. With surgery, physical therapy, and rehab, Bob’s medical bills total $30,000. He’ll also likely have issues with his shoulder the rest of his life. Cliff carries the required minimum coverage in Oklahoma (“$25,000/$50,000”), so his insurance company offers this to Bob. Does Bob’s health insurance company get to keep the whole settlement and leave Bob with nothing for his pain and suffering (and likely missed income)? Probably not. This is where Bob (or his attorney) will need to negotiate with his insurance company to get their subrogation claim reduced.
One more example: same facts as scenario two, except Bob’s medical providers have not been paid by any health insurance company. In this case, if the bills of the medical providers are in excess of $25,000, Bob may not get to keep any of the insurance settlement proceeds. This is likely where Bob would be kicking himself for not having uninsured motorist (UM) coverage and medical payments coverage on his car insurance policy.