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MAKING A BODILY INJURY CLAIM IN A MOTOR VEHICLE ACCIDENT
Injuries that arise out of the accident victim’s involvement in a motor vehicle can occur in a number of roles, including that of being another motorist, a pedestrian, a bicyclist or a motorcyclist.
Many times the outcome of the claim is affected by the amount of insurance that the negligent party has, or doesn’t have. If that is the situation, then the injury victim may have to make recourse under their own motor vehicle insurance, for either Uninsured Motorist (UM) benefits or Underinsured Motorist (UIM) benefits, if they have same.
It is important to recognize some of the pitfalls and problems that can arise in bringing a bodily injury claim, and to minimize or avoid these issues it is imperative to retain an experienced and knowledgeable attorney.
Here are some of the basic rules to be aware of:
1. Use Your Own Insurance: Under what is called the Collateral Source Rule, the negligent party does not get credit for what they owe the accident victim on the claim if the accident victim utilizes their own medical insurance to cover their bills. The negligent third party is still legally responsible for those bills, so long as they are reasonable in amount and are medically necessary.
Accordingly, the accident victim can maximize their recovery by using their own medical insurance, be it a healthcare plan, HMO, or medical payment coverage benefits arising under their own automobile insurance policy. Paying off the bills early will also prevent the provider from sending the bills out to a collection agency, the latter of whom won’t necessarily agree to wait until the claim is concluded in order to get paid.
2. Delays and gaps in Medical Treatment: Many accident victims are reluctant to seek immediate medical treatment, for any number of reasons. They may think that the insurance carrier for the other driver needs to authorize such treatment and/or direct pay the healthcare provider (they don’t and they won’t); the accident victim may not have health insurance coverage of their own; or they may have difficulty seeing a healthcare provider right away due to their job commitments or other personal reasons.
The bottom-line argument is that injured people seek prompt medical attention and non-injured people do not. Any delay in seeking medical attention will only give the insurance carrier for the other driver the argument that the claimant was not hurt or hurt that bad.
If the reason for lack of immediate care is the accident victim’s lack of medical insurance or concern over incurring medical bills, then there are any number of healthcare providers, especially chiropractors, who will treat the victim on a lien basis, which means that the provider will await the outcome of the claim before getting paid, at least if the victim has retained an attorney.
3. Don’t Believe Insurance Company Assurances: Insurance companies may offer token settlements immediately after the accident occurs, in exchange for the victim signing a release of claims. This is the “carrot on the end of the stick”, and an accident victim should never sign a release until they have concluded their medical treatment and/or they are fully aware of what their future medical expenses may end up being.
Sometimes insurance companies make generalized statements along the lines of “we are responsible” or “we will work with you to resolve your claim”, but these type of non-specific platitudes have no legal weight or effect whatsoever and are solely designed to lull the victim into a false sense of security, thinking that they can avoid legal expenses for an attorney because the adverse insurance company is going to “take care of them”.
Do not fall for these lines unless you want to end up being a victim twice.
4. Insurance Companies Are Not Obligated to Pay for Every Expense an Accident Victim Incurs: Many accident victims believe (naively) that because the accident wasn’t their fault, that the adverse insurance company must cover all of their expenses related to the accident. This is not true.
Again, any medical care must be “reasonable and necessary”. This means that the adverse carrier can dispute the rates charged by the victim’s healthcare providers, and/or argue that it was not medically necessary. This is especially true when the accident victim receives conservative care, such as physiotherapy and/or chiropractic care. You can’t treat indefinitely and expect it to be covered, although retaining a knowledgeable attorney to best present your medical necessity of care to the carrier can go a long way in securing appropriate compensation.
Some health care will not be considered by the carrier if it isn’t truely “medicine”. This would include nutritional supplements, acupuncture, or therapeutic massage that is not affiliated with a physical therapist or a chiropractor.
Likewise, mileage, parking expenses, and other incidental out of pocket expenses incurred to see a healthcare provider or to make a claim are not going to be considered either.
5. Attorney’s Fees and Costs are Negotiable: Under the law, absent a pre-existing relationship between the client and the attorney, a contingency fee agreement between the attorney and client must be in writing. A contingency fee means that the fee is contingent on the attorney obtaining a recovery for the client on the injury claim, and this is the fee agreement that is almost universal in the legal profession when representing accident victims.
The retainer fee amount is negotiable between attorney and client, and the retainer agreement must state as much. If the attorney does not have legal malpractice insurance, then that fact must be divulged to the client in writing as well.
In addition to fees, costs will have to be incurred in making the claim, whether or not the accident victim retains counsel. These costs could include copying medical records, postage, hiring an investigator, court filing fees, service of process, and fees for expert witnesses if the matter proceeds to trial. The retainer agreement should state how the costs are to be handled, whether the attorney is going to advance same, and whether or not the costs are contingent as well.
6. Loss of Earnings Claims: In addition to economic damage claims for medical bills, the accident victim can claim additional economic damages for loss of earnings or detriment to earning capacity, if such events occur.
The Collateral Source Rule is again in play, and the adverse insurance company cannot claim credit if the accident victim receives state or private disability benefits when they can’t work. If the employee takes off from work due to their injuries but the employer doesn’t dock their pay, then the adverse insurance company doesn’t get credit for that benevolence either.
Similarly to the incurrence of medical bills, the time off from work must be reasonable in light of the injury. This can be a disputable issue in many claims.
Loss of earnings claims are more supportable when the accident victim’s physician recommends in writing that they take time off, as opposed to the victim just deciding on their own initiative that they don’t feel up to going to work. Loss of earnings from having to stay home and recover are more supportable than loss of earnings claims because the victim had to take off from work early to make a doctor’s appointment.
If the accident victim is self-employed and/or has a commission type of income where their income varies, then such a loss of earnings claim may be difficult to document, absent the unfortunate situation of suffering a catastrophic injury where it is indisputable from a medical vantage point that the patient couldn’t work in the past or in the future.
7. Non-economic Damages: In addition to compensation for economic damages such as medical bills and loss of earnings, the accident victim is entitled to compensation for non-economic damages for the pain, suffering, and inconvenience related to their injury.
There is no legal or arithmetical formula for calculating the amount of such a loss, and it is best derived at by an experienced and knowledgeable personal injury attorney.
Some of the factors that can influence non-economic damage amounts would include the nature of the injury; the length of treatment; whether surgery was involved; whether the injury can be objectively diagnosed by an MRI scan, CT scan, or x-ray; whether there is a documented loss of earnings claim in a significant amount; whether there is scarring or a permanent disability involved; what similar injury claims are resolved for; and what a jury might do if the decision is left up to twelve people in a box.
Non-economic damages are not based on what the accident victim subjectively believes they are entitled to, especially if their medical treatment is limited and there are no objective medical diagnostic tests confirming the reason for their symptoms.
CONCLUSION: Don’t be a victim twice by deciding to weather the storm that follows an accident by dealing with these and other legal issues by yourself. Injury claims of any significance will almost always fare better for the accident victim with an attorney at the helm, as opposed to trying to do it yourself.
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