Vegas Personal Injury Law Blog

Beginning July 1, 2009, Medicare Secondary Payor requires insurers to report any settlement, judgment or award to Medicare. Failure to report any settlement, judgment or award will result in a $1,000.00 per day penalty to the insurance company. Medicare Secondary Payor can sue for double damages, plus interest. The suit can be initiated against the insurance company, the Medicare beneficiary and his or her attorney, as well as the physician, if the settlement of the claim or suit does not protect Medicare’s subrogation interests.

Medicare is now contacting auto insurance liability insurance companies notifying them that funds be held for payment of Medicare liens. This may even include funds for payment of future medical services. If this happens, the attorney will probably receive a settlement check with Medicare’s name on it. This will certainly complicate and delay the settlement distribution to the medicare beneficiary.

Pain and Suffering Damages are the effects on a person’s life as a result of physical and emotional injuries.  They include the loss of enjoyment of life and pain and discomfort doing daily activities such as cleaning the house, going out with the family and raising children. Placing a value on pain and suffering resulting from a motor vehicle accident is a is a difficult task for any mediator, arbitrator or juror involved with the personal injury case.  There’s no one to scientific formula, chart or table that attorneys and insurance companies can look to you determine the value of a person’s physical and emotuional pain and suffering as the result of an accident.

I was surfing the Internet recently when I came across a web site that claims to evaluate  personal injury claims.  I typed in a medical bills of $5,498.00, vehicle repair costs of $1,000.00, rental car expenses of $250 and wage loss of $500.  The program gave me an estimated claim value of between $13,006.95 to  $26,243.41.  Based on my 25 years of experience in dealing with personal injury cases, I find this to be a simplistic and unrealistic evaluation, especially in situations where a person is not represented by an attorney. Don’t rely on this type of information to evaluate the value of your auto accident case.

Oftentimes, the victim that suffers the most as a result of an auto accident does not receive adequate compensation for pain and suffering because that victim has inadequate documentation, incomplete documentation, or lacks good pain and suffering witnesses. Studies have shown that juries evaluate pain-and-suffering  higher in urban settings than juries in  rural settings.

There are many factors that need to be considered in determining the value of pain and suffering.  Juries (and even insurance companies) look to the credibility of the victim as a witness.  Arbitrators, mediators, jurors and insurance companies also look to see if a person’s actions following an accident are consistent with someone who is in pain.  They look to see how the injured parties everyday life is changed as a result of an accident.  Sometimes extraneous factors such as pain tolerance, occupation and marital status are sympathy factors that can increase the value of a personal injury claim.  The skill and experience of the attorney representing the injured party can influence the evaluation of pain and suffering damages.

Juries often look to, and are swayed by, factors such as the age.  Older people probably will suffer more from auto  accident injuries because their body  cannot recuperate as well younger people.  Juries often have the mind set  that  that younger people should heal more quickly than older people.  Some juries  think that a person suffers more because he continues to care for his children while healing for an injury.  One of the most of the important factors that jurors consider in evaluating pain-and-suffering is the honesty of the injured party.  Sometimes the injured party can be too prepared and too confident on the stand.  

People that have an aggravation of a pre-existing injuries will usually receive less for pain and suffering then people with new injuries.  This has a lot to do with insurance company evaluation.  Their position is that aggravation cases are easy to defend. However, in litigation it should be the attorney’s job to you convince the jury that the old injury was aggravated and that the than aggravation of a pre-existing condition requires more medical treatment and results in more residual pain and suffering than an original injury.

More medical treatment does not necessarily mean more money for a pain and suffering.  However, the total amount of medical bills is definitely one factor that is considered.  Running up medical bills unnecessarily is looked at with a fair degree of suspicion.  Stretching out treatment on a minor injury can be interpreted as greed on the part of the injured party, and this is certainly the position that will be taken by the insurance company.  Jurors have a tendency to award higher damages for pain-and-suffering on accidents that involve major property damage as opposed to minor property damage.

I was in a settlement conference  with  District Court Judge Timothy Williams on a wrongful death case.  The judge told my clients that juries are very unpredictable.  He gave the example of two  separate  cases that went to trial recently involving similar injuries with meniscus surgery following a knee injury.  Two different juries came back with divergent evaluations of medical bills and pain and suffering.  In one case the jurors awarded a reasonable amount in a trial where evidentiary issues should have drastically reduced damages, and in the second case the jurors’ award reduced the actual medical expenses drastically and awarded the injured party nothing for pain and suffering. 

Therefore, all we can say about the value of pain and suffering on an auto  accident case is that there is no definite formula.  Generally, the better pain and suffering is documented, the higher the award for pain and suffering.  The concept that pain and suffering is worth some multiple of the medical expenses is not a standard of evaluation that is uniformly applied.

As you can see documentation is the key to obtaining a reasonable settlement on the personal-injury auto case.

1. In order to maximize your recovery on any auto accident personal injury case you must seek appropriate medical attention immediately after an accident. A delay of only a few days in obtaining medical treatment will reduce the value of your claim by insurance company standards.

2. In the event that event you are not at fault for an accident, insist that a law enforcement be called to the accident scene.

3. In any event that you are at fault for an accident, it makes sense to a try to negotiate with the other driver to determine if he wants to handle the claim outside of auto insurance. This can be helpful in minor accidents, because even minor accidents are considered at fault accidents by your insurance company. These small accidents will add up and will eventually affect your insurance rates. If you can work with the other driver on property damage, assuming that there is no injury from the accident, this can save you the expense of increased insurance rates and can expedite the repair of the other driver’s vehicle.

4. Especially in any questionable liability situation, do not admit fault for the accident. This can be considered an admission. Your statements can be admitted into evidence in any legal proceedings as an exception to hearsay.

5. If you do not obtain follow-up medical treatment after your emergent treatment, this is a red flag to an insurance company.

6. You must cooperate with your own insurance company. You are required, as a condition of coverage, to answer their questions about the accident. You’re not required to answer any questions from the other side’s insurance company. If you have an attorney, do not give any statements to the adverse insurance company or sign any forms without the approval of your attorney.

7. Do not attempt to settle your case until all necessary medical expenses past and future have been determined. I had a consultation recently involving a auto accident injury claim, where a lady settled her injury claim with the adverse carrier for $1000, despite the fact that she had continuing low back pain and pain radiating down into her lower extremity. Then, a few weeks after the first accident she was involved in a second motor vehicle accident. Obviously, this decision to settle the first accident claim was not well thought out.

8. Keep track of all of your medical expenses. Ask your health-care providers for copies of your bills so that you can determine the costs of medical treatment for your auto accident. You may be surprised to learn to how much things like MRIs, CT scans and pain management procedures cost.

9. In the event you receive a traffic citation as a result of an accident do not pay the fine. Try to get an attorney to handle the ticket for you. In most cases the ticket can be reduced to a parking ticket and nolo plea can be entered. With this plea the ticket cannot be used to determine liability in a civil proceeding.

It is very difficult to be in a rational state of mind following a motor vehicle accident. The first question that may come into your mind following an auto accident is, “Do I have to stop”? The law says that you must stop after an accident. It doesn’t matter if the auto accident involves a pedestrian, a moving car, a parked car or other real or personal property. If you drive away from an accident you can be charged with “hit-and-run”. Even if the accident is not your fault, “hit-and-run” penalties are severe. You may be stuck with a large fine or be picked up and taken to jail. You could even lose your driver’s license. If you hit a parked car, try to find the owner. If you cannot locate the owner, you may only drive away after leaving behind your name, address and an explanation of the accident. You must also notify the local police either by telephone or in person.

The most important thing to do following a motor vehicle accident is to keep track of the facts.

You should always keep a note pad and a pen in your vehicle. It is extremely helpful to have either a cell phone or a disposable camera to take pictures following an accident.

At the accident scene, before you even get out of the vehicle, try to write down the license plate, year, make and model of the other vehicle or vehicles involved in the accident. After an accident the adverse vehicle may leave the scene, especially in situations where adverse driver has a bench warrant or has no insurance or no driver’s license.

Before the police arrive at the accident scene try to obtain and exchange information with all other drivers. Obtain their name, address, home, work and cell phone numbers, license plate number and insurance company information, including their policy number. Keep a record of all names, addresses, phone numbers and e-mail addresses for any witnesses to the accident.

Take photographs of the damage to the vehicles involved in the accident and also take photographs of the other drivers. They may try to leave the scene without providing you with their information. It is also helpful to have photographs of the accident scene in general. Typically, it takes law enforcement between our 15 minutes to an hour to arrive at the accident scene.

After the police arrive at the accident scene they will ask you to fill out a written statement. While you are waiting for the police to arrive you can start preparing your statement.

Eventually the police will ask you about how the accident happened. They will also ask you if you need medical attention. While you’re at the accident scene your adrenaline will be pumping and you may not experience any symptoms of a neck or back injury. These symptoms may not appear until hours after the accident and often appear after you have left the accident scene. If you have any sign of trauma after the accident, you should relate that to the investigating officer. If you decline medical attention, advise the officer that you will seek medical attention after you leave the scene of the accident with your private physician, quick care facility or your local hospital. If you have symptoms of dizziness, numbness, headache, disorientation or even minor neck and back pain, this should be reported to the investigating officer. If any part of your body made contact with the interior of your vehicle report that to your investigating officer.

In most cases the investigating officer will provide you with either a driver exchange card or a computer printout with basic information concerning the parties and vehicles involved in the accident. Always get the event number before you leave the scene from the officer so that you can obtain a copy of the traffic accident report.

You will either leave the accident scene by ambulance, by a ride in the tow truck, by a ride from a friend or relative, or you will drive your own vehicle away from the accident scene.

At some point after you leave the accident scene you must contact your own insurance company to report the accident.

If your injuries are severe or you have a concern about your health, go to a hospital.

If you have any signs of injury that require medical attention, this should be your first priority after being involved in an accident. See your family doctor, a quick care facility or chiropractor, if your injuries are not severe enough for you to go to the emergency room.

If you go to a hospital, you will need to know that you will probably incur three bills. The first is the hospital bill itself. The second is the bill from the emergency-room doctor, and the third is a bill from the radiologist who reads your x-rays. While you’re at the hospital you should try to obtain information concerning the identity of the healthcare providers related to these three bills. Oftentimes, it is difficult to obtain copies of the bills related to the emergency-room doctor and radiologist, because these bills most often are submitted to health insurance and the injured party never receives a copy. It is important for you to tell your attorney that he had x-rays at the hospital, so that he can order the radiologist’s bill.

If your symptoms continue, you should seek follow-up medical care. This may involve going to a chiropractor, doctor of osteopathy or medical doctor who is familiar with personal injury claims. If you go to a general practitioner who is not experienced in personal injury claims, the record keeping and the ability of the healthcare provider’s office to fully address your personal injury claim may not be sufficient.

If you lose time from work, keep a log of the time that you’ve taken off work as a result of the accident. If you use sick days, or if you use PTO or FMLA, this should be documented. Always require your treating physician to provide you with a doctor’s excuse, whether or not one is required by your employer. In the event that you have an inability to function properly at work due to your injuries, this should be documented by your supervisor. Also, a letter from your employer verifying and income loss, use of sick days, use of paid time off, or use of FMLA is extremely important to document your wage loss claim.

If you are a student, and you miss time from school, document missed school time and your inability to perform your schoolwork.

If you have visible injuries continue to take photographs of your injuries periodically and document the date of each photograph.

Keep a daily log of your pain, discomfort, emotional distress, fatigue, tenderness and inconveniences. Write down your feelings and experiences on a day-to-day basis documenting how the injuries have interfered with your daily life and relationships. This information should also be reported to your health care providers so that it can get into your medical records. See my Blog Post, “How Will Your Auto Accident Claim Be Evaluated?”

In the event that your vehicle is driveable, there is no rush in getting your vehicle repaired. Most people are anxious about getting their vehicle quickly repaired after an accident. If your vehicle is driveable, try to have the adverse driver’s insurance carrier take care of the property damage. This way the property damage will not be subjected to the deductible of your own automobile collision coverage. Ask the adverse insurance company if they utilize preferred shops? In the event that your vehicle is repaired at a preferred shop, the insurance company is on hook for any delay in the repair of your vehicle. In the event that your vehicle takes longer than expected to be repaired, the insurance company has to eat the delay by paying for your rental car during the entire time that your vehicle is being repaired. If you choose your own repair shop, the adverse insurance company will most likely only pay you for the reasonable amount of time that it should take to have your vehicle repaired. Believe me when I say that these delay issues are common problems on personal injury claims.

It is important to obtain a copy of the property damage estimate. In event they have a preliminary estimate from an insurance company and you take the vehicle to a repair facility, that repair facility will determine whether or not they can repair the vehicle for the amount of the preliminary estimate. If they can not, the proper procedure is that the repair facility will contact the adverse carrier to have a follow-up appraisal of the vehicle, especially after the vehicle is torn down and exterior parts are removed to reveal underlying damage.

Keep track of all of your out-of-pocket expenses for things such as ice packs, heating pads, bandages based bandages, childcare expenses, cancellation of vacations or loss of pre-paid trips, replacement of clothing, taxi service, or payments to others for transportation.