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Personal
Injury & Auto Accident FAQS
How can I help the
Attorney present my case?
1) Keep a Diary
We cannot emphasize too strongly the
importance of maintaining a diary regarding your injuries and
damages. This is nothing fancy and may simply be a notebook or
notepad. It does not have to be kept every day, or every week, but
it is important that you keep it in an attempt to document your
specific complaints. Remember, you and I may have to convince a jury
(composed of eight strangers) that you were injured in this
accident, your injuries caused you pain and suffering and your pain
and suffering entitles you to compensation. This is best
accomplished by providing specific examples and, where necessary,
witnesses that can support your testimony. All pain, discomfort and
injuries should be documented no matter how minor they may seem at
the time. Injuries have a way of progressing. If you have a bruise
from banging your knee and later you develop functional knee pain,
it is vital to have some proof of your injury at the time of the
accident in order to relate the damages.
Your diary should briefly describe how you felt, in general, prior
to the accident. You should then diary how you felt immediately
after the accident, telling in the greatest detail possible what
happened to you and the pain and suffering you endured immediately
thereafter. As you keep the diary, note the date, describe the
effect that the injuries are having upon you and the pain and
suffering that you have experienced. Describe both the symptoms you
are having and the activities that you could not do or cannot do as
well as you could before your accident and/or injury. You should
record your anguish such as worries you have on your mind about your
ability to get well or the effects of your injury on your everyday
living and your ability to provide for your family.
Try to use pictures words. For example, “I was in a lot of pain
today” is not nearly as helpful as “I was in so much pain today when
I reached down to pick up the sweeper I let out a groan and realized
that I could not pick it up because of the pain in my right
shoulder.” This is what we mean by picture words. If somebody
witnessed your pain or limitations, be sure to put down their name.
For example, “Today I had to ask my friend to reach up in the
cupboard and pull out the saucepan because I was unable to extend my
arm upward above my head. My friends name is John Smith. His address
is 22 West Main Street in Cleveland and his phone number is (216)
222-4422.” Use as many picture words as you can to describe your
injuries and pain that you are suffering. At the conclusion of your
treatment, I ask that you forward to me a copy of your diary to
assist me in making a demand on your behalf.
2) Document Your Damages
Photographs are very important
and cannot be overemphasized. We will assist you in taking
photographs if you cannot do them yourselves, but we do need
photographs of your injuries and damages. If you were injured in an
automobile accident or by a defective condition on someone’s
property or a defective product, it is imperative that we obtain
photographs before repairs are made. In a motor vehicle case, you
should have at least four (4) or five (5) photographs of your
vehicle. If there is not much damage to the exterior of your
vehicle, there may be damage visible inside the car or underneath
the vehicle. It is very important that you take photographs of those
hidden damages in these cases. If you need help obtaining
photographs, call us before repairs are started. If you have
injuries that show up on photographs (scars, bruises, swelling,
cuts, stitches, etc.), be sure to take photographs of those areas as
well. If the visible injuries take more than a few days to heal,
document them with a photograph every week and use a camera that
places a date stamp on the photograph. Our ability to reconstruct
injuries by photographs is very important. There is truth to the
saying that “pictures are worth a thousand words.” SO TAKE PLENTY
OF PICTURES.
Keep track of any expenses such as childcare, housekeeping,
traveling for medical treatment and the like. All expenses should be
noted and if you are in doubt, you should make a record and let us
assist you in determining the appropriate ones. Remember that your
inability to do certain activities may be compensable. But also
remember that it is very important to have independent documentation
of this impairment. For example, if you cannot run the sweeper or do
the laundry, write down the name of somebody who has seen that you
are unable to do these things. If you are unable to play golf,
bowling, tennis or the like, write down the name and address of that
person who from his or her observations can document the fact that
you have not been doing or cannot appear to do those activities.
3) Documenting Wage Loss
If you are expected to miss any time
from work as a result of the injuries caused by your accident, it is
important that you have documentation from your physician indicating
that you will be unable to work for a specific period of time. If
your doctor does not provide this for you, we suggest that you
contact your treating physician and/or family physician to request
this documentation (i.e., a doctor’s note). Insurance adjusters
often will not consider wage loss submitted without a doctor’s
recommendation that you stay off work.
4) Follows The Doctor's
Advise
You should visit your physician
as often as is required. If you are hurt, go and visit your
physician. If you do not hurt, do not visit your physician as
this may cause confusion and unnecessary expense. When you do
decide to visit your physician, describe all of the pain and
suffering and difficulties that you are having to the best of your
ability. Remember that whatever you tell your physician in the
course of your treatment will end up in your medical records and may
be admissible as evidence later in court. You should be
careful and honest as to what you tell your medical providers.
If you had prior injuries or prior difficulties, tell your physician
about them. If this incident has aggravated your prior
injuries, tell your doctor immediately. If your injuries are
affecting your employment, be sure that you tell your doctor and
your employer about them. If your injuries are affecting your
ability to do recreational activities or the functions of your daily
life, be sure that you tell your doctor about them as well.
Above all FOLLOW YOUR DOCTOR’S ADVICE. If he/she recommends a
consultation with another doctor or a follow-up visit, follow
through with that advice. Also
remember that any injuries to any body parts, no matter how minor
they may seem, must be documented with your physician as soon as
possible after an accident. By doing so you will protect
yourself in the event that these seemingly minor injuries worsen
weeks or even months after the accident.
Occasionally people become dissatisfied
with certain physicians or their decisions regarding treatment
and/or diagnosis. Different physicians often have different
opinions. If you ever desire our help with obtaining a second
opinion or advice about selecting a physician, please do not
hesitate to contact us.
How Long Will My Case
Take?
Generally, settlements, recoveries,
jury awards, etc. take a long time. It may only be three (3) or four
(4) months before we reach a settlement on your behalf. More often,
it will take two (2) or three (3) years after the date of your
accident or injury to resolve your case. The length of your case
depends on a number of factors including, the severity of your
injuries, the length of your medical treatment, how long it takes to
get the proper diagnosis of your injury and whether or not liability
for an accident is disputed or accepted.
One of the main reasons that your case may take a long period of
time is to protect you. When a settlement or recovery is made it is
final and its effects can be felt for a lifetime. You are not
allowed to got back into court two (2) years from now or ten (10)
years from now or twenty-five (25) years from now and ask for more
compensation. All of the compensation that you receive as a result
of your accident or injury will be received by the time you execute
a release or receive a verdict in this case. We are very careful
about settlements and want to make sure that you make a voluntary,
intelligent, and knowing settlement or decision regarding a jury
trial. Even after a case is filed in court we often have to wait a
year or two (2) before the case is called to trial. Since these
cases do take a long time, you can see how important it is to
document all of your injuries and damages because our memories are
not as accurate as we sometimes think they will be. In any event, we
will not settle your case without your authority and approval.
Who Pays My Bills While
I Am Waiting?
You are ultimately responsible for your
medical expenses. If you have any type of medical/health insurance
(including Medicare/Medicaid), we strongly urge you to provide your
insurance information to your providers or if you receive unpaid
medical bills that you submit them to your health insurance company
to avoid harassing creditors’ actions against you. When asked by a
provider how you wish to pay for your treatment always insist upon
the use of your health insurance coverage first. There are many
advantages to handling your case in this manner. Sometimes you must
fill out forms from your health insurer before they will pay your
bills. Contact us if you need assistance with these forms but take
care of them promptly.
You may have the ability to get medical bills paid by your
automobile or homeowner’s insurance if your injury occurred while
operating your car or on your property. Likewise, you may be able to
get those bills paid under the insurance policy of the person that
owns the car or home where you were injured. This type of coverage
is called “medical payments coverage” or “medpay.” Clients often
say, “I don’t want to submit my bills to my insurer because my
insurance will go up.” You have already paid a premium for this
coverage. If your automobile or homeowner’s insurer pays the bills
it is only temporary as they will get their money back when we
settle or resolve your case with the at-fault party. This is what is
known as subrogation.
If you do not have any kind of medical/health insurance, some
physicians will wait for payment from the proceeds of your case. Ask
us about this. The law does not allow us to assist you with payment
of your medical bills. What you can do for yourself is write to the
various creditors and tell them that you have authorized us to pay
them out of any future settlement. We can also write letters to your
providers asking them to be patient and accept payment from the
proceeds of your case. Many times these types of letters are helpful
to our clients, but not always. Be sure to keep us informed if you
are being called upon for past due bills.
What is Subrogation?
Subrogation is a principle that
generally means you cannot be paid twice for the same damages. If
someone (or some insurance company) pays for something (a medical
bill) on your behalf and then someone else (the at-fault person or
their insurance company) pays you for that same bill, then you have
to pay back the money you originally received from the person or
company that was not at-fault but was contractually responsible for
paying your bills. For example, if you had health insurance with ABC
Insurance and it has paid some of your medical bills, when you
finally obtain a recovery or settlement funds as a result of your
accident or injury, we will probably have to pay ABC Insurance back.
The same is true for “Medpay” benefits paid under an automobile
policy or homeowner’s policy of insurance. If a public agency such
as Welfare, Medicaid or Medicare has paid some of your medical
bills, we will definitely have to pay them back. This is
known as the principle of subrogation. You should understand it
because it may affect the amount of your eventual recovery or
settlement funds and it may work in your favor if handled properly.
What is the Difference
Between a Claim and a Lawsuit?
We find that many of our clients
experience apprehension, anxiety or even guilt about being involved
in a lawsuit or “suing” someone for their injuries. First, you must
understand there is a big difference between submitting a personal
injury claim (usually to an insurance company) and filing a lawsuit.
Only 10-20% of our clients actually end up in a lawsuit regarding
their injury case (although the trend has been increasing as more
insurance companies take a hard line stance in negotiations). When
you retain us to represent you, we investigate and document your
injury case and submit the claim to the insurer in an attempt to
negotiate a fair settlement. It is only when the insurance company
refuses to offer a fair settlement or denies responsibility for your
injury that a lawsuit becomes necessary. Second, the only reason
any injury case has value is because you have the right, under
our civil justice system, to have a jury of your peers settle any
dispute you have regarding the value of your injury. With this in
mind, we must prepare every case with an eye toward proving your
damages to a jury and only then will the insurance company offer a
fair settlement to avoid going to court in your case.
Property Damage
(Automobile Cases)
By far the greatest complaint of our
clients has to do with the way the insurance companies handle the
property damage to their automobile. Unfortunately, the law
does not give us much ammunition to fight them in this area and for
the most part your property damage can be handled without our
involvement. If you encounter problems with the property
damage portion of your case, do not hesitate to call and we will try
to assist you.
If liability for an accident is
accepted, the at-fault party’s insurance company is required by law
to pay for the damage to your car and provide a reasonable
replacement vehicle (rental) while your car is being repaired.
They do not have to rent you a Mercedes Benz. However, if you
use your vehicle for work (i.e., a pick-up truck to move materials
to a job site or you have a minivan to transport your children), you
should request and get pre-approval from the insurance
company for this type of rental to accommodate your needs). In
any event, the insurance company only has to provide a rental until
the repairs are complete or they offer you the fair market value of
your vehicle if it is a total loss (“totaled”). The insurance
company for the at-fault driver is not obligated by law to pay
for the additional insurance offered by rental companies.
Therefore, you should not pay for this additional insurance unless
it is necessary. A rental vehicle is a “replacement vehicle”
and most of the time covered under your automobile policy.
You should check with your automobile insurance company to
verify that the rental car is covered under your policy then
you can safely elect not to purchase the additional insurance.
If you have a only a liability bond or a policy that only provides
liability coverage, you may be required to purchase the additional
insurance on the rental vehicle and unfortunately the law does not
require the at fault insurer to reimburse you for the insurance
charges on the rental bill.
If your car is “totaled” (meaning it
would cost more to fix it than it is worth) then the insurance
company is required to pay you the “fair market value” of your
vehicle. Make no mistake about it, there is nothing fair about
fair market value but it’s the law. The fair market value
is not the Blue Book or NADA value nor is it what a dealership would
charge you for the same car (the theory is that the dealers mark up
the price to make a profit and you are not a dealer). However,
many clients find that the fair market value is not enough for them
to go out and buy the same car, or even worse, they owe more to the
bank than the car is worth leaving a balance after your car is
totaled. There is a type of insurance coverage that pays this
difference called “gap insurance.” You may have purchased this
type of insurance when you bought your car, check your paperwork and
report the loss to the insurance company immediately if you have gap
insurance coverage. Note: Many used car dealers that finance
the sale of their cars require gap coverage so check the paperwork
you received with your car!
If your car is totaled and you have to
replace your car, you are entitled to the sales tax you pay on your
replacement vehicle up to the fair market value of your loss vehicle
(i.e., you own a 1995 Escort worth $2,000.00; it is totaled in an
accident that is not your fault; you go out and buy a new Cadillac
that costs $25,000.00; the insurer will have to pay the sales tax on
the first $2,000.00 only). Sometimes the insurers pay the tax
up front and sometimes they will only pay it if you provide a
receipt showing the sales tax within thirty (30) days of your
vehicle being declared a total loss – check with the adjuster to
make sure you are clear on this.
If liability (or fault) for the
accident is disputed or being investigated, the other driver’s
insurance company does not have to pay your property damage or
provide a rental car. In this case, you should check with your
insurance company regarding your coverage. You may have to pay
a deductible under your policy, but this may be refunded to you if
the other driver is later found to be at fault.
What if I was cited for
a Traffic Offense in Connection with my Personal Injury MVA case?
If you are arrested or cited as a
result of an automobile collision, call one of the lawyers in this
office immediately, and we shall see that someone represents or
advises you appropriately. NEVER plead guilty to a traffic offense,
and do not even pay a traffic ticket without first consulting us!
What to do if I am
involved in an automobile collision as a driver or if I witness an
automobile collision?
Any time a motor vehicle you are
operating is involved in a collision on a public road in Ohio, the
laws require you to do the following:
http://www.ohiobar.org/pub/lawfacts/index.asp?articleid=3
i.e., the Ohio State Bar Association
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