Personal Injury Claims FAQs - Part 2
November 10, 2013
There are three things that you must know to resolve a personal injury claim no matter if it involves a car accident, a motorcycle collision, a fall on residential or commercial property, an assault or any other event that causes injury or death. Without knowing these three things, you will never know if you are accepting a fair amount for settlement or if you should take the case to trial. As a personal injury lawyer in Los Angeles for the past 17 years, I have had to analyze these three things in every single case of the thousands of injury claims that I have handled. What are they?
- What are the Different Types of Liens that Medical Providers can Assert on a Personal Injury Award?
- How Can I Prove That the Person or Business That Harmed Me is Legally Responsible for My Injuries?
- What is the Value of the Harm that You Have Suffered?
- What are all the Sources of Money Available to Compensate the Victim for Their Loss?
- Why is it Crucial to Hire a Quality Personal Injury Lawyer as Soon as Possible During This Process?
- Top Five Reasons People Hire a Personal Injury Attorney
- How to Find a Good Personal Injury Attorney?
- Has Anyone You Know Recommended the Attorney?
- Does the Attorney Focus on Personal Injury Cases?
- Has the Lawyer Taken Cases to Trial in the Past?
- What is the Attorney's Track Record for Past Cases?
- Is the Attorney Actively Involved in State and Rational Legal Organizations?
- Does the Lawyer have Published Works, or has the Attorney Given Presentations?
- Will the Lawyer Provide you with References?
- Does the Attorney have any Disciplinary History?
- How Long has the Lawyer been Practicing Law?
What is a lien? A lien is basically a claim of right to payment by a medical provider or insurance carrier from proceeds received from a personal injury settlement or judgment. Liens basically come in two forms as follows:
Statutory Liens: These are claims for right of payment that are “presumed” or somewhat “automatic” based upon statutes under the laws of the State of California. They include liens arising from the following:
- Workers Compensation Benefits: When a person is injured while on the job but, in a manner that provides both a claim for work comp benefits and a separate cause of action for personal injuries (for full discussion of these scenarios click here), the workers compensation insurance provider will have a lien on the proceeds of the personal injury claim.
- Hospital Emergency Services: A hospital may claim a right of repayment for “emergency and ongoing” services furnished to a person injured by “an accident, negligent or wrongful act”. California Civil Code §§3045.1 – 3045.6. In order to make this lien enforceable, however, the hospital must provide written notice in a specified manner as set forth in Cal. Civ. Code 3045.3.
- Receipt of Government Benefits: If any of the medical bills were submitted and paid through public assistance benefits such as Medicare or Medi-Cal, an automatic right of repayment is applied to any recovery from a third party on a claim for personal injuries.
Contractual Medical Liens: These are claims for repayment based upon an agreement of the parties or their attorneys. They usually arise in one of three scenarios as follows:
- Health Insurance Payments: Many health insurance providers (including both PPO plans like Blue Cross and Blue Shield and HMO programs like Kaiser Permanente) have a clause in their patient agreement that “requires” repayment for the costs of health insurance benefits paid out to an insured that are later recovered from a third party tortfeasor (or that person’s or business’s auto or liability insurance company).
- Medical Payments From Auto Insurance Carrier Many car insurance policies have an allowance for payment of medical expenses related to an auto accident up to a certain limit amount. If a person uses these benefits and later recovers money from the at fault driver or registered owner, they may be liable to repay some or all of these benefits.
- Agreements to Treat on A Medical Lien: If a person is without health insurance coverage at the time of an accident, they may need to obtain medical treatment including physical therapy, surgeries, prescription medication and other forms of medical therapeutics on a “lien basis”. This means that the doctor or other medical provider agrees to treat the patient and forego payment until the matter is resolved by way of settlement or verdict.
There are many benefits to hiring an attorney to represent a victim of negligence or wrongdoing assert and administer the claims for recovery of compensation. One of these many benefits, is that lawyers who are familiar with personal injury law are adept at establishing the validity of any asserted liens, negotiating reductions of these claims for repayment, and making sure the injured person gets these bills paid and nets the maximum amount after payment. There are many nuances to medical providers asserting a right to recover all or part of what they have billed or paid for medical treatment related to a car accident or other injury causing event. For example, liens for medical payments coverage or for health insurance payments or benefits are usually subject to a “made whole” rule. This means that the injury victim must receive enough to fully compensate them for medical expenses, legal costs (including attorney’s fees) and pain and suffering damages before the insurance company can assert a claim. In addition, every lien is negotiable. A good lawyer is skilled at negotiating reductions (and sometimes outright waivers) of these claims so that the client can net as much as possible. Oftentimes, the hiring of an experienced personal injury attorney can mean the difference between getting all the bills paid and money in your pocket or being left with medical expenses and being thrown into collections.
Steven M. Sweat, Personal Injury Lawyers, APC
Personal Injury Law firm servicing all of California including Los Angeles.
11500 W Olympic Blvd #488
Los Angeles, CA 90064
If you notice, I didn’t say did an accident occur? I also didn’t say SHOULD someone be responsible from a moral standpoint or otherwise? I said: How can I PROVE that the person or entity is LEGALLY responsible for my bodily harm? The harsh reality is that many accidents occur every day. Sometimes these are the result of being in the wrong place at the wrong time and there is nothing anyone could have done to prevent what happened. Sometimes, though, the injury or death of an individual is the result of actions, inaction, errors, or downright intentional conduct. From a legal standpoint, it must be determined if those acts or failures to act were conduct for which the law demands that the person causing harm be held accountable. Sometimes the analysis is whether the wrongdoer had a duty to act in accordance with certain standards and, instead, acted unreasonably given the all the circumstances. This is what the law calls negligence. Other times, a person or company may have created a dangerous product which did not function as promised and caused harm or may have turned a blind eye to the wrongs being committed by employees for which they knew or should have known. The key here is what evidence exists or can be discovered through the legal process that will prove your case in court. This evidence can come in the form of eyewitness testimony, documents including medical and police records, physical evidence at the scene of an accident and many other things but, there are rules which prohibit certain evidence from being used in personal injury claims based upon the California Evidence Code and the CA rules of civil procedure. All of this needs to be gathered an analyzed to determine how strong the case would present to a jury at trial to ascertain the probability of a verdict larger than the settlement offer.
In the case of a injury from an incident such as an auto accident, there are a lot of different things that need to be considered before you EVER decide whether to settle or for how much. In the case of a fairly minor incident which causes some months of discomfort and pain, this analysis may be simpler but, for more serious afflictions, it becomes more complicated. Simple or complex, though, every claim must be reviewed as a whole with each aspect of damages taken into consideration including:
- Present Medical Expenses: This should include everything from the cost of the ambulance ride to the cost of ER treatment to the cost of follow up consultations and diagnosis from medical specialists like orthopedists, neurologists, psychiatrists, physical therapists, and other medical professionals. The costs of equipment such as crutches, walkers, adjusting beds, prosthetics, therapeutic devices and anything else necessary for recovery must be factored.
- Future Costs of Medical Care: This can include the cost of surgeries such as to implant hardware to stabilize a fracture or to alleviate nerve pressure from a herniated spinal disc or any number of other things. The cost including the surgeon, the hospital or surgery center fees, the anesthesiologist, and all other expenses must be considered. Furthermore, the cost of post-surgical physical therapy, home health care and any other needs must be accounted for in figuring this value.
- Property Damages: In the case of a car wreck, it must be determined what the reasonable cost of quality repair or replacement of the vehicle should be. In the case of other incidents, the value of personal items like clothing and jewelry must be calculated.
- Pain and Suffering: California law provides that a person who suffers an injury can recover for the pain, suffering, mental anguish, anxiety and disruption to their life that the bodily harm caused. In the event of a death, the law provides for the economic value associated with the loss of love, companionship, society, comfort and solace that the lost loved one provided.
- Lost Income: California tort law provides for the value of any wages missed due to being out following an accident including sick or vacation days. It also provides for the lost earnings in the future including the value of the loss of physical or mental ability to work at the same job or industry where the injured party was employed at the time of the accident. If the event causes a death, the law provides for the amount the deceased would have provided in financial support to their family for their life expectancy.
All of these things and more need to be taken into consideration. Oftentimes, this requires patience and waiting until the full picture of diagnosis and prognosis recovery can be made. Every time, it requires knowledge of the values that have been rendered in prior claims including jury verdicts. This is especially true for pain and suffering, which is a hard thing to put a value on.
The person that harmed you or caused a loved one to lose their life, can only be made to pay from the sources available to that person or business. In the case of a car crash, there is usually automobile insurance but, sometimes the policy is not enough and you need to look to your own underinsured auto coverage. In the case of a slip and fall, assault and battery, or other mishap on commercial or residential property, there may be homeowners coverage or a business liability policy in place. For product defect claims, there may be coverages for the manufacturer that are separate from the distributor that are separate from the retailer. From there, you must determine what the total limits are for the policy or policies including umbrella or excess coverage (policies which cover above and beyond the base amount). It is possible to make the insurance company pay more than the policy limit with the right legal maneuvers.
- Good injury attorneys are trained to gather admissible evidence and analyze legal liability issues. They have years of education and experience to rely upon in deciding not only if anyone is legally responsible but, how easy or tough it will be to prove in court.
- Quality accident lawyers are adept at gathering ALL the necessary information and documentation to support the claim for full and complete damages both present and future and presenting the claim only when it is “ripe” and all expenses can be fully ascertained. They also know the lay of the land when it comes to valuing pain and suffering based upon real, objective information like jury verdict histories.
- Investigation into who is responsible and what type of insurance that person or business has is the job of a good attorney. Insurance companies do NOT share information willingly about their policy, its limits or its scope of coverage nor will they conduct an asset check to determine what could be collected above insurance. It is only through the demands of the legal process that such information can be obtained.
Unless and until you hire an attorney to help you with the claims process, you will never know the answer to these three crucial questions! Therefore, you will never know if you are settling “on the cheap” or selling yourself short or if the risks of moving forward to litigation or a trial outweigh the costs of settling for less. Once a settlement has been reached and a release signed, this is the END of the legal claim and you can never go back. Get the three questions answered before it’s too late!!
Law Offices of Steven M. Sweat
Los Angeles personal injury attorneys and accident lawyers.
719 S. Los Angeles Street #218
Los Angeles, CA
Top Five Reasons People Hire a Personal Injury Attorney
What are the top five reasons people hire a personal injury attorney? As an accident claims lawyer in Los Angeles in practice for over 18 years now, I have my opinions but, I decided to research the topic a little further. I came across a study done by the Insurance Research Council entitled: Injuries in Auto Accidents, An Analysis of Auto Insurance Claims. Granted, this study was conducted in 1999 but, I believe that the motivations for seeking the assistance of an attorney after an incident resulting in personal injury or death still hold truth today. What they found as the motivation for retaining legal counsel for a traffic collision claim was the following:
- “Just wanted to make sure I was adequately protected and everything was done according to the law”: Over 40 percent of those surveyed who had been involved in a motor vehicle collision and ultimately hired a lawyer provided this response.
- “Someone I know suggested it would be a good idea to talk with a lawyer”: 27 % of persons being asked provided this as a motivating factor for hiring a personal injury attorney.
- “Was dissatisfied with delays in getting the claim settled and/or was told by the insurance company that my claim was not covered”: 17 % of respondents stated this as the reason for hiring a lawyer.
- “Was dissatisfied with the amount of money being offered by the insurance carrier”: Approximately 8 percent of those surveyed cited this as a justification for engaging counsel.
- “After hearing or seeing attorney advertising, I decided it would be a good idea to talk to a lawyer” or “A lawyer or someone connected with him or her contacted my household and offered to represent me”: This comprised 6 % and 3 % respectively for motivations to enlist the services of an attorney following a auto accident or other claim.
NOTE: The remaining few percentage of respondents provided reasons such as “the other party was uninsured” and “One member of my household filed a claim against another household member.”My take on the stated reasons for enlisting the help of an accident and injury lawyer:
After being an attorney licensed by the State of California since 1996, and having helped thousands of Californians from San Diego to Orange County to Los Angeles to the Inland Empire and up into the San Joaquin Valley and the San Francisco Bay Area from all walks of life and with various types of cases, I find some interesting “nuggets” to draw from this study. My view of these various impetuses is as follows:
- Wanting to adequately protect your legal rights and assure that persons who are negligent and their insurance representatives follow the law: This is probably THE best motivation for getting an attorney to help you prosecute a claim for bodily injury or death of a loved. The laws of the State of California have been developed over centuries and their absolute goal is to ensure a fair and accessible system whereby persons injured or killed by negligence or wrongdoing be compensated fully and fairly.
- Hiring an attorney at the suggestions of a friend, family member or “someone you know”: This is also a very valid reason in my opinion to elicit the help of a lawyer following an accident. Referrals can be one of the best ways to find an attorney for an injury claim. However, one caveat I would give would be to use some caution from whom you take advice. Make sure your referral source is someone familiar with the attorney and, preferably, someone who has had a prior, positive experience being represented by that lawyer in a case that is same or similar to yours.
- Dissatisfaction with shoddy treatment by an insurance adjuster including lousy settlement offers: I can’t count how many times I have been retained by someone who feels like they are being taken advantage of by the insurance carrier for the at fault party. Denial of claims and offering less than full value on claims is a standard operating procedure for insurance companies. Therefore, this is a perfectly good and common reason to hire your own legal advocate. However, I would suggest that getting an attorney involved much sooner in the process is much more beneficial. Attempting to represent yourself up to the point where claims are being denied or “low-ball” settlement offers are being made can lead to mistakes that an attorney may or may not be able to fully correct. This could result in permanent loss of value to your claim!
- Hiring an attorney based upon an advertisement or a personal or mail contact from a lawyer or “their representative”: This, to me, probably the worst reason to employ the assistance of counsel. While advertising is a legitimate way to obtain initial information about an attorney, hiring a lawyer from a television, radio, or internet ad alone without doing further research on the credentials and expertise of that professional can result in poor legal representation. One of the worst scenarios is retaining a “settlement mill” law firm (i.e. a group of lawyers who engage in heavy, blanket advertising, take in huge volumes of cases, and simply try to “process” them as quickly as possible and with the least amount of effort to simply obtain “a” settlement rather than an “ideal” resolution. Furthermore, hiring a lawyer from a direct, personal contact is THE worst reason to choose a lawyer! Why? Pursuant to California Rule of Professional Conduct 1-400, it is illegal and unethical for any lawyer to communicate “in person or by telephone” (either directly or through a representative) or to deliver written communications, “concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain” … “to a prospective client with whom the member or law firm has no family or prior professional relationship. . ..” Any lawyer that would send someone to your home, hospital, scene of an accident or anywhere else where they personally try to persuade you to hire a particular law firm or make similar “cold call” efforts over the phone is NOT TO BE TRUSTED because they are BREAKING THE LAW. It is lawyers like this who permanently damage the reputation of the profession and get us deemed “ambulance chasers” or worse. Any attorney who is willing to act in such an unethical manner will, no doubt in my opinion, act unethically and unfairly towards the client regarding rendering services, settling claims, and dealing up front an fair with the client during the claims process.
If you have been injured because of the negligent or intentional actions of another person or entity in Los Angeles, you may have the grounds to file a personal injury lawsuit against the responsible parties. While it is possible to file personal injury claims on your own, working with an experienced personal injury lawyer might make your chances of success much likelier.
People who retain personal injury attorneys often recover much more compensation than people who choose to represent themselves. However, it can be confusing to figure out how to find a good personal injury attorney. There are many attorneys who advertise their services, but not all of them will be the right lawyer for you. Here are some questions that you can ask so that you can find a good personal injury attorney for your case.
Getting recommendations from your friends and family members is a good idea. However, make sure that the lawyers that they recommend to you practice in the area of personal injury law. For example, if your cousin was happy with how her divorce attorney handled her case, that doesn't mean that her lawyer will be able to represent you in your personal injury matter. It is best to limit your list to attorneys who practice personal injury law.
When you are considering a particular attorney, it is important for you to figure out whether he or she focuses on the area of personal injury law. You can peruse the practice areas that the lawyer has listed on his or her website or ask the lawyer whether or not he or she focuses on personal injury cases or if he or she has a more general practice. Choosing a lawyer who has experience handling cases that are similar to yours makes it likelier that your attorney will be familiar with the latest case decisions and other changes in the law that might impact your claim.
There are many personal injury attorneys who never take cases to trial. Instead, they simply settle all of the claims that they handle as quickly as possible. Choosing a lawyer who never goes to trial may not be the best idea. When insurance companies know that a lawyer is willing to go to trial, they are likelier to make higher settlement offers so that they can avoid the costs of litigation and the possibility of verdicts against them. Ask the attorney who you are considering how many cases he or she has taken to trial and what his or her record is on them. It is also important for you to understand that the vast majority of claims are settled before trial. While your claim will likely reach a settlement, you still should find a lawyer who is willing to fight for you through trial if it is necessary.
If you have extensive injuries, it is important for you to find a lawyer who will be able to obtain a large settlement or jury verdict so that you can be fully compensated for your losses. When you interview personal injury lawyers, ask them about their track record for settlements and verdicts. You can look at an attorney's website to see if he or she is a member of the Million Dollar Advocates Forum or the Multi-Million Dollar Advocates' Forum. These are two exclusive professional organizations that limit their memberships to attorneys who have recovered settlements and verdicts for their clients that exceed seven or eight figures. If the attorney who you are considering is a member of one of these two organizations, his or her website will likely have a badge. You can also simply ask the attorney if he or she is a member of one of these organizations.
Good personal injury attorneys often have memberships in state and national trial lawyers' organizations. When attorneys are members of these groups, their memberships allow them to learn from their peers about the latest trial techniques and legal changes that impact litigation. Trial lawyers can also learn about some of the new tactics that insurance companies might be using to try to avoid paying out settlements to injured victims. Keeping current with everything can help your attorney to improve his or her practice so that he or she can be an even better advocate for you.
Attorneys who are highly knowledgeable about personal injury law might have published articles about the field or have been asked to give presentations about different personal injury law topics. Ask the lawyer if he or she has published any articles about personal injury law in the past or if he or she has given any lectures or presentations about it.
A good personal injury attorney should be willing to provide you with references from past clients if you ask. If the attorney has clients who are willing to speak to you about the good job that he or she did, that is a good sign that the attorney might similarly work hard for you. If you are provided with the names of past clients who are willing to talk to you, follow up with them. You can also look at reviews of the attorney that have been written by other people online about the experiences that they had.
Personal injury attorneys are subject to the ethical rules for attorneys and are regulated by the state. You are able to check online to see if an attorney who you are considering has any public disciplinary record on the website of the State Bar of California. Simply type in the lawyer's name with his or her last name first. If the lawyer has any disciplinary record, it will be displayed. While a past disciplinary action does not necessarily mean that you should avoid a lawyer, it is a good idea to ask an attorney who has received a disciplinary action to explain it to you.
When you are choosing an attorney, you will want to find someone who is experienced. While it is true that there are many good attorneys who haven't been practicing for very long, you likely do not want to choose an attorney who is learning on your case. Ask the lawyers who you interview about how long they have practiced law and when they were first licensed. You might also ask the attorneys about how many cases they have handled and the percentage of cases that have been in your particular legal area.
Personal injury cases can take a long time to resolve. When you choose a personal injury lawyer, you will likely be working with him or her for many months or a couple of years. It is important that you choose a lawyer with whom you click. Pay attention to the attorney's communication style and whether or not he or she listens closely to what you tell him or her.
Finding a good personal injury attorney to represent you is important. By taking the time to ask the right questions, you might find a lawyer who will work hard to recover the maximal amount of compensation. To learn more and to schedule a free consultation, call the Law Offices of Steven M. Sweat at 310-592-0445.