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Today is my 50th birthday and I wanted to do something worthwhile for my clients and everyone else who has suffered a personal injury due to the negligence of another and who is fighting with an insurance company to get the settlement or recovery you deserve. Here are my six best tips to guide you if you have a personal injury case. I developed these guidelines and recommendations while prosecuting personal injury clams during the past 25 years.
1. BE CAREFUL ABOUT WHAT YOU POST ON SOCIAL MEDIA
You should assume that the Insurance Company is going to view everything you post on line. When you file a personal injury claim or lawsuit, you give up certain privacy rights and the insurance company can subpoena your facebook, twitter, instagram or other accounts. It seems like everyone likes to exaggerate on social media about how far they ran, or that they went hiking in rugged mountains or that they went river rafting over dangerous rapids etc. If you are doing activities that your doctor has advised you not to do and are posting these activities on social media—this will damage your case. Similarly, if you have given a deposition and testified that you are not able to do certain activities and then you are posting about doing these same activities, you have just given the insurance company a smoking gun to use to defeat your case and your credibility.
2. CHOOSE YOUR MEDICAL PROVIDERS CAREFULLY
If you are in a significant auto accident or other type accident, you want to seek emergency medical care from a hospital immediately after the accident to get checked out and to make sure you know the extent of your injuries. If you do not seek treatment until the next day, the insurance company may claim that you did not suffer a serious injury because you did not need immediate medical attention.
After emergency care, you want to quickly follow-up with your own primary care physician—I recommend against having your lawyer recommend a doctor or going to a medical outfit that advertises on TV for treating personal injury victims. The reason is that when lawyers and doctors refer clients back and forth to each other, Insurance Companies become aware of this by seeing the same doctors and lawyers on the same claims and this can negatively impact the credibility of your personal injury claim. The insurance company will want to know why you didn’t you go to your own doctor for a referral as opposed to getting one from your lawyer? This leads me to tip #3.
3. TELL YOUR DOCTOR(S) EVERYTHING
Many times people who are involved in a serious accident focus on what is hurting the most at the hospital or when they initially see their primary care physician. You need to tell your doctor about every single complaint and symptom at your first visit and subsequent visits. As far as many insurance companies are concerned, if you did not report the complaint or injury in your first visit, then it probably was caused by something other than the accident. Also, you never know which of your injuries, if any, may end up becoming a permanent injury and if you did not initially report the injury, there will be a question as to whether or not it was caused by the accident.
I recommend that before you go to your first visit with your primary care physician following the accident, you write down from head to toe every pain, symptom and complaint that you have. You need to be very specific and tell the doctor everything i.e. tell your providers if you are having headaches, if you cannot sleep, if your pain is a shooting pain, if you have any numbness or tingling, if you are having panic attacks when you drive etc. Be as specific and detailed as you can.
Your doctor’s prognosis and treatment are only as good as the information you provide to them so make sure you provide them with all the information.
4. TAKE PHOTOGRAPHS AND PRESERVE EVIDENCE
This may seem obvious but you would not believe how many people fail to take injury photographs or wait to retain an attorney until after the bruising or other visual evidence of the injuries are gone. It is true that a picture or video can be worth a thousand words and many times we have obtained large settlements because of the pictures we were able to obtain early in the case. We routinely retain professional photographers for serious injuries and photographs of decubitus ulcers or bed sores or other injuries regarding medical malpractice may also be used as evidence to prove liability, in addition to damages.
Similarly, if you are in an auto accident with disputed liability or a slip and fall accident or other type of accident, the accident scene should be photographed as soon as possible so that skid marks, dangerous conditions etc. are preserved. For serious accidents with disputed liability, we recommend sending an accident reconstructionist or safety expert to the scene as soon as possible to take measurements and photograph or video the accident scene.
5. NO RECORDED STATEMENTS AND BE CAREFUL WHAT YOU SAY TO ANYONE ABOUT THE ACCIDENT
Do not give a recorded statement to the insurance company—it is not required and it can only hurt you. Understand that if you give a recorded statement and your case does not settle and proceeds to litigation, the insurance company is going to take your deposition and have a transcript of your testimony. If your case proceeds to trial you will have to testify again and any inconsistencies between your recorded statement, your deposition testimony and your trial testimony will be emphasized by the insurance company’s lawyer on cross examination. The insurance company will use any such inconsistencies to claim that you are not credible.
There have been rare occasions under unusual circumstances when I have allowed a client to give a statement to an insurance company. When I do authorize a statement, I do not allow the insurance company to record the statement. I recommend against giving the insurance company any statement, but if for some reason you feel compelled to give a statement, tell them it cannot be recorded.
Similarly, understand that anyone who you tell how the accident happened or how your injuries impact you, can be called as a witness to testify against you. When you are talking about the accident or your injuries it is not hearsay and anything you say can be admitted in Court. It is best to only discuss the accident and your injuries with your doctors, spouse and your lawyer if you have one.
I can attest that these 5 tips are not something that I researched or pulled off the internet from someone else—these five tips are based on my 25 years of prosecuting personal injury claims and obtaining recoveries for my clients. I hope these tips will help you and wish you the best in convincing the insurance company to pay you the money you deserve.
Today is June 24, 2015 and I have another tip for anyone looking to maximize their recovery on a personal injury claim.
6. USE YOUR PERSONAL HEALTH INSURANCE AND DO NOT SIGN MEDICAL LIENS
To many times we see accident victims who are reluctant to use their own health insurance and insist/request that the adverse driver’s insurance company directly pay for their medical treatment. When this happens, medical providers commonly have the injured patient sign a medical lien authorizing the medical provider to be paid out of the settlement the patient ultimately obtains from the adverse insurance company. THIS IS A MISTAKE—ALWAYS USE YOUR PERSONAL HEALTH INSURANCE AND DO NOT SIGN ANY MEDICAL LIEN UNLESS THIS IS THE ONLY WAY YOU CAN RECEIVE MEDICAL TREATMENT.
You paid an insurance premium for your health insurance coverage and you should use your coverage. Your health insurer has negotiated rates for services with your medical providers and if you have a private or non-ERISA health insurance policy, you typically will not have to pay your health insurer anything out of your personal injury settlement. Granting your medical providers a medical lien is taking money out of your pocket/settlement.
For example, let’s say you need a surgery that costs $50,000.00 and use your health insurance. Your surgeon/medical provider will bill your health insurer $50,000.00 and your health insurer via its negotiated rates will pay the surgeon/medical provider about $7,500.00 and the surgeon will write of as an “insurance adjustment” the remaining $42,500.00. Alternatively, had you provided the surgeon/medical provider with a medical lien, the surgeon will expect or claim that he/she is entitled to receive full payment of $50,000.00 out of your insurance settlement. While we are almost always successful in negotiating and reducing medical liens, it is always in your best interests to use your health insurance. You should only sign a medical lien if you do not have health insurance and this is the only way you can receive medical treatment.