What Insurance Pays for Medical Treatment Required Because of Injuries Sustained in an Accident

car accident attorneyIf you are in an automobile accident, your Personal Injury Protection (PIP) coverage of your auto insurance is your primary health insurance. All auto insurance must contain PIP coverage. This coverage pays up to 80% of your medical expenses up to $10,000. There is usually a $2,000 deductible which must be met first. If you are in an auto accident and you are hurt, you must seek medical treatment within 14 days of the accident or you may lose the PIP medical coverage.

If you are injured in an accident arising in the scope and course of your employment, your medical care is to be provided and paid by your employers Workers Compensation insurance. This is after your PIP coverage if you have been in an auto accident. If you are injured in a non-automobile accident and it happened during your work, then Work-Comp is primary.

If you have your own health insurance, then it becomes primary after PIP has paid out its benefits, assuming you were injured in an auto accident. If the injuries were not from an auto accident and therefore, there is no PIP coverage and if you did not sustain the injury at work, then your health insurance is responsible for your medical bills.

If you are drawing Work-Comp benefits, you cannot submit medical charges to your health insurer. Even if you do not like the care rendered by the medical providers given to you by the Work-Comp insurance company, you can not submit medical expenses to your health care insurer. They will not pay the bills.

In summary, PIP pays first for injuries in an auto accident. Next, Work-Comp pays next if hurt on the job. If not hurt on the job, then your own health insurance, if you have any, pays the medical charges.

Slip/Trip and Fall Claims

personal injury attorney Tampa FLThe law governing Slip/Trip accidents has been changed recently. The burden of proof is different now. The law used to be that all the claimant had to show was that an accident had occurred and injuries resulted from the fall. The burden of proof was on the defendant to prove that they were not negligent in failing to correct the problem that caused the fall.

If someone slipped on spilled milk in a grocery store aisle, the store would have to show that the aisle was monitored and inspected at reasonable times throughout the day and the aisle was clean the last time it was inspected. Therefore, the milk must have been spilled shortly before the fall and the store did not have knowledge of the spill until after the fall.

To prove this defense to the claim, the store would have to show that the store had a written policy regarding inspections of the premises and that store employees were diligent and had, in fact, inspected the area of the fall shortly before the fall. Store customers are legally considered Business Invitees and the store is under an obligation to do everything possible to protect the customer from being hurt while shopping in the store.

If the store can prove this defense, then the question of fault becomes a question of fact for the jury to decide. If it is determined that the store could not have known of the spill in time to clean up the mess, then the store is not liable to the customer for his injury and damaged ever though the customer did nothing wrong in causing his injuries.

The new law provides that the claimant must prove that the store should have known of the spill and had time to clean up the spill. The store no longer has to prove it was not at fault in causing the fall. It is now the claimant’s burden to prove the store was at fault. How does the claimant prove the store should have been aware of the spill and cleaned it up before the fall? How would he know how long the spill existed before the fall?

Placing the burden of proof on the claimant to prove the store at fault makes it extremely difficult for the claimant to prevail. It can be done in some cases, depending on the facts that are discovered prior to trial, but many claims are denied because of this new law the folks in Tallahassee passed and the governor signed into law.

Medical Malpractice Pre-Suit Procedure

Tampa personal injury attorneyAfter all of the medical and surgical records have been reviewed by expert medical consultants and it is determined that the client has suffered significant injuries as the result of medical malpractice, the next step in the claims process is the Pre-Suit Procedure.

Unlike other injury claims, you can’t proceed to filing suit against the negligent health care defendants until the pre-suit requirements are met. What is called a 90 day letter of intent to file a suit must be sent to all of the probable defendants. The letter must contain affidavits from all of the client’s experts advising that they have reviewed all of the pertinent records and they feel that the health care rendered by the client’s providers was below the standard of care.

Also the letter will set forth the injuries sustained by the client as a result of the violation of the standard of care. In addition, the attorney may submit questions to be answered by the providers regarding the facts and issues in the claim. The attorney may also request documents from them that might be important to the claim. The health care defendants are supposed to respond to the letter and the requests within 90 days of the receipt of same.

The defendants may do one of three things during the next 90 days. They may participate in the process and submit their own questions and requests for certain documents and information to the client. They may answer the client’s questions and requests. They will then have experts of their own review all of the client’s information and records and submit affidavits regarding their conclusions regarding the claimed violations of the standard of care. After all of this is completed, the doctor’s attorney will answer the letter of intent and submit their experts affidavits and, in most cases, will deny any wrongdoing that violated the standard of care. In my years of experience, the defendants rarely admit fault or responsibility in their answer.

Also, the defendants can do nothing and just let the 90 days pass without any response. Also they can simply admit fault and provide no other information. This rarely happens. Once the denial is received or the 90 days passes, whichever comes first, then the client can finally file suit and proceed with litigation.

Deciding to proceed with litigation should be carefully considered. MedMal litigation is extremely expensive and very time consuming. The expenses, in some cases, can exceed $100,000. or more. The time from sending the letter of intent to trying the case to a verdict can be as long as two years or more. Also most jurors dislike lawsuits against doctors and hospitals. You must have a very strong case and significant injuries and disabilities to have any chance of prevailing. These types of cases are usually handled on a contingent fee basis and if there is no recovery, then there is no fee or costs owed to the client’s attorney. Therefore, the client’s attorney must be extremely selective in deciding to proceed with a medmal claim.

Medical Malpractice Claims

medical malpractice - Tampa personal injury attorneyMedical Malpractice and Medical Negligence are the same thing. It means that a healthcare provider carelessly, negligently caused harm and injury to a patient in the course of the treatment of the patient. This includes doctors, nurses, chiropractors, physical therapists among others.

As a Tampa Personal Injury Attorney, I have handled many medical malpractice cases. When investigating a medmal claim, the first thing that needs to be done is to secure all of the medical records that have information concerning the claim. Medical authorization from the patient will allow the attorney to examine all of the records to determine if the client was harmed by treatment that was below the appropriate standard of care.

The standard of care is a national standard and applies anywhere in the country. The standard is the minimal amount of care that is considered to be satisfactory care and is not negligent or malpractice. If the care is below the standard, then it is deemed to be medical malpractice. It is like drawing a line and any care above the line is acceptable but care below the line is not and would validate a medmal claim.

If the attorney feels that the client’s claim may have merit, then the records and any other medical information is submitted to an expert for review. The review must be by a similar healthcare professional as the client’s healthcare professional who he is making a claim against. In other words, if the claim is against a nurse, then the reviewer must be a nurse of similar training and expertise. If the claim is against a doctor then the reviewer must be a doctor of the same specialty and training as the one against whom a claim is to be made. For example, a claim against a surgeon must be reviewed by a surgeon. A claim against a primary care doctor must be reviewed by a primary care doctor.

If the review determines that the care rendered was below the applicable standard of care, then the next thing to determine is whether or not the client has been substantially harmed or injured by the substandard care. If the injury is minimal and no permanent damage is the result, then the attorney will probably not proceed forward with the claim because it would not be economically feasible. This means if the attorney feels that the value of the claim is less than the time, effort and money to litigate the claim, he will go no further. Keep in mind that medmal cases, like other negligence case i.e. auto, slip and fall etc., are handled on a contingence fee basis. No fee or costs are owed the attorney unless he recovers compensation for the client. It is the lawyer’s money that finances the case and if he feels that the chances of recovery are small, then he will not finance the case.

If the claim appears to be viable, meaning the healthcare provider’s care was below the standard of care and the client’s injuries are substantial, then the attorney will proceed to make a legal claim for the client following the multiple legal requirements to do so in Florida.

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Do You Really Have Full Automobile Insurance Coverage?

Tampa Auto accident lawyerWhen I interview new clients regarding an auto injury claim, I always inquire about their auto insurance coverages. This is important because the driver that caused the accident may have little or maybe no insurance that would compensate my client for their injuries and economic losses. It is estimated that a substantial number of drivers in Florida do not have bodily injury coverage with which to pay for injuries they cause by negligently driving and causing accidents.

Most clients tell me they have FULL COVERAGE when I ask. Unfortunately, they are mistaken and really only have bare bones coverage. The minimum coverage that you must have to own and drive a car in Florida is No-fault personal injury protection ( PIP) and property damage. The PIP coverage pays up to $ 10,000. for medical expenses and/or lost wages of the at fault driver. It pays for the client’s property damage but nothing for the client’s injuries, lost wages or medical expenses

If that is all the other driver has for insurance, there is nothing I can do to help compensate the client for their losses. The only exception is if the client himself has uninsured or under insured auto coverage. What this means is if the responsible party has no or not enough bodily auto insurance coverage to pay for your loss, you can look to your insurance to pay your claim. They stand in the shoes of the at fault driver and will pay for your loss up to the limits of your UMI coverage. UMI coverage protects you so you will be compensated whether or not the at fault driver has the necessary insurance coverage.

FULL COVERAGE means you have auto insurance to pay for some ones injuries if you are at fault in an accident and you have coverage yourself if the driver that injures you doesn’t have bodily injury coverage. UMI insurance costs somewhat more but it is a coverage that you wish you had if the other driver doesn’t have enough coverage. Protect yourself and your family. Purchase UMI coverage. Make sure you do have FULL COVERAGE.

Trial of a Personal Injury Claim

Lawyer GavelIf your case does not settle, the next thing that happens is the case will be tried in front of a jury. The first part of a trial is to pick a jury. The court subpoenas a large number of citizens from the county where the trial is held. They will be a jury panel from which your jury will be picked from. The panel will be escorted into the court room and the judge will advise them of the process of selecting a jury and what their duties and obligations are if picked to be on the jury.

Next, the attorneys ask questions of the panel to decide who they want as jurors in the case. This is called Voir Dire examination. It means the prospective juror is sworn to say the truth when questioned to ascertain his competence to serve as a juror. The lawyer who has filed the suit on behalf of the injured party goes first and then the lawyer defending the case goes next in asking questions of the panel. After the lawyers and the court excuse some of the panel for various reasons, those jurors that remain will be sworn in as the jury to try the case.

Next, the attorneys will address the jury and give their Opening Statements. The Plaintiff’s lawyer goes first and then the defense speaks next. The statements are the attorneys versions of the facts and what they believe they will prove to the jury to show that their client should prevail after all of the testimony has been presented to the jury.

Next the Plaintiff’s attorney will call the various witnesses he wants to testify on behalf of his client. After the direct examination of the Plaintiff’ lawyer, the defense lawyer will cross examine the witness. Keep in mind that the Plaintiff always goes first because he has brought the action and he must prove his claim. The defense defends against the claim to show the claim has not been proven. After all of the plaintiff’s witnesses have called and examined, the plaintiff rests his case and then the defense presents all of their witnesses and then the Plaintiff cross examines the defendants witnesses. Once all of the witnesses have testified, the defense rests its case.

Next, the attorneys give their closing statements to the jury as to what they believe the testimony has proved and why they feel the jury should decide in their clients favor. Again, the Plaintiff goes first and then the defense goes next. However, the Plaintiff gets to argue again. This is called Rebuttal.

After the final arguments are completed, the Judge will give the jury the instructions of the court to guide them in their deliberations in deciding the facts of the case. The Judge is responsible for deciding the law that governs the case and the jury’s responsibility is to decide the facts of the case.

After the instructions are given, the jury goes into a separate room to decide the case. They will take with them all of the various exhibits that have been placed in evidence. They will remain secluded until they have reached a verdict based on the law they were given by the court and the sworn testimony of the witnesses. The jury will then return to the court room and render its verdict.

Mediation Settlement Conference before Trial

Tampa auto accident attorneyOnce the discovery is completed and the parties are ready to set a trial date, a motion to set the matter for trial is filed with the court. However before the case can be tried, most, if not all of Florida courts demand that the parties mediate the issues and try to settle the case.

It is up to the parties to select a mediator to hear the case. Mediators are usually attorneys who mediate cases on a regular basis. Once the mediator is selected, a hearing date is established and a location is agreed to.

The parties and the attorneys are present at the hearing. Also, a claims person from the defendant’s insurance company must be present with settlement authority to settle up to the policy limits of the defendants insurance coverage. That doesn’t mean he will pay up to the policy limits, he just must have the insurance company’s authority to do so if it is needed.

All of these people will be together in the conference room to start the proceedings. The lawyer for the injured plaintiff will go into a discussion of the issues and advise the defendant of exactly what the testimony and proofs at trial will be and why the plaintiff will prevail at trial and what the anticipated amount of the jury’s will probably be.

Next, the defense attorney will advise the plaintiff what he anticipates the testimony and proofs to be and the fact that the jury will give him less than what he wants, possibly nothing at all. The mediator will then ask the party’s themselves if they want to make a statement. If they do, they can go ahead and make a brief discussion of what they feel is important and why they will prevail if the case is tried.

Once, all of the statements are completed and all of the questions are discussed, the parties are placed in separate rooms and no longer will they all be together again for the rest of the mediation. The mediator will then meet with the parties separately to discuss the settlement offers and counter offers. The mediator has no authority to make a finding of the facts and award an amount of a settlement. He’s sole function is to try and help the parties to a resolution and settlement of the claim.

He will go back and forth to consult with the parties, advise each party what has been offered and carry counter offers back and forth until the case settles or the parties reach an impasse. If the case settles, then the parties sign documents agreeing to dismiss the case. The signed settlement agreement can’t then be revoked and is a contract that is binding on the parties. The court will be apprised of the settlement and the case will be dismissed. If the case is not settled at the mediation conference, then the court is advised of same and the matter can proceed to trial.

Keep in mind that just because the case doesn’t settle at mediation doesn’t mean it can’t be settled later. The case can be settled anytime including during trial.

What Happens After Suit is Filed in a Personal Injury Claim?

Scales of justiceOnce suit has been filed, the defendant is served with a summons and a copy of the complaint. They have 20 days to file their answer to the complaint.

Once that occurs, the parties serve interrogatories and request to produce documents pertinent to the issues in the case. Interrogatories are questions to the adverse party that must be answered within 30 days. This is called “DISCOVERY”. The defense wants to know more about you and your claim. They will ask about any prior accidents and injuries, previous law suits, lost income etc. They also want information regarding your past medical care and who has treated you for the injuries you are suing the defendant about. They want information to learn everything they can about your past, your family, your work history and your version of what happened in the accident that brought the suit against their client.

They also will request documents to be supplied to them regarding proof of lost income, tax returns, a copy of all of the medical and surgical records concerning your treatment for your injuries caused by the accident. If you had previous medical care for similar injuries, they will want those records as well. In short, they want to know everything about you and your past that could have anything to do with your claim for damages.

The same is true for your discovery of the defendant’s past including prior accidents, insurance coverage, his version of how the accident happened, any medical issues he might have had that could have played a part in the accident. Also, had he been drinking before the accident, was he on the phone or texting when the accident happened etc. Does he wear glasses when he drives and why? Again, you have the right to also to learn everything about the adverse party that could have played a part in the accident.

Next the attorneys will want to take the discovery depositions of the parties. A deposition is sworn testimony taken outside of the courthouse. Depositions are taken for two primary reasons. One is to learn as much as possible about the opposing party relative to the claim. Also, the attorneys want to see how you handle the questions asked of you and they want to see if a jury will like the deponent and believe him if the case has to tried.

The defense has the right to have a health care provider (ie: a doctor, psychologist, physical therapist etc.) examine the plaintiff regarding his claim of injury from the accident. They also have a right to secure all of plaintiff’s medical records and any other records relevant to the issues of the case.

Also, the attorneys will want to depose any and all witnesses to the accident. The defense also will want to depose the plaintiff’s treating physicians to obtain their opinions concerning the injuries, the cause of them and whether the injuries are temporary or permanent. If permanent, they will want to know about the need for future care, disability, work restrictions etc.

Once the discovery by the parties is completed, the parties are in a position to evaluate the claim and begin settlement discussions. They can also advise the court to have the matter set for trial.

Should I Settle or File Suit for an Injury Claim?

Tampa personal injury If the insurance company’s final settlement offer is less than you want for your claim, you have to be aware of what your rejection of the offer means. If the offer is woefully less than you feel your case is worth, then you don’t have much choice, either accept it or file suit.

However you must be aware of many issues and problems that come with filing suit. Once you sue the people that caused your injuries and financial losses, the insurance company will retain the services of an experienced, determined trial lawyer to defend the case and who will do his best to defeat you.

He is now in charge of the handling of the suit and the insurance adjuster is no longer in direct contact with you and your attorney. Defense attorneys are paid by the insurance company by the hour for the work they perform in defending the case. The longer the case drags on, the more they make. It is not in their best economic interest for the case to be resolved in a reasonable time. They will do everything they can to delay resolution of the matter and the justice you seek.

Also, when you file suit, you open yourself to questions about your life and you will have to provide information to the defense that you feel is personal and you may not want to answer but you will have to. Your past is fair game even though you feel there is no relevancy to your claim and the information sought.

You will have to answer questions about your past medical history, remote as it may be. Your financial information will have to provided if you are claiming a wage loss because of your injuries. Marital and family questions will be asked and must be answered, no matter how you question their need. In other words, you must disclose everything about your personal life even if the information has no bearing on your claim, with few exceptions.

Also, the courts are backed up with various lawsuits and litigation. There is such a backlog that it could take years before your case will finally be tried. The folks in Tallahassee have not sufficiently funded our courts so we can have enough Jurists and support personnel to handle the claims on a timely basis.

Think long and hard about this before you file your suit. If you feel you must file suit to receive the justice you deserve, then make sure you have a competent, experienced trial lawyer representing you to successfully take you through this process in an aggressive, timely manner.

When Do Settlement Discussions Begin

personal injury lawyer Tampa FLOnce the client has finished their medical/surgical treatment and has been released by their doctors is when settlement talks with the adverse party’s insurance carrier can begin.

However, you still need to provide information regarding the client’s economic losses caused by the accident and the resulting injuries and disabilities. Wage records from client’s employer must be obtained to determine the loss of income because of accident. Also documentation regarding future loss of income must be supplied.

Next, all the medical and hospital bills must be gathered to show any balances owed by the client. Additionally, a statement from the client’s health insurance company reflecting the exact amount they paid to the client’s health care providers must be obtained. They have a lien which allows them to be reimbursed for some, if not all, of the payments they have made out of the settlement proceeds. This is called Subrogation. It is in every health insurance policy.

By law, the client must pay the lien. If the lien is not paid when the case settles, then the client’s attorney is also responsible to pay the lien. The lien must be taken care of before the client receives the net proceeds of the settlement.

In catastrophic cases, a Life Care plan must be submitted to the adverse insurance carrier. This reflects the future life time care the client needs over the rest of his projected life expectancy for medical care, physical therapy, full time nursing care, special beds, wheel chairs etc. The total anticipated costs are provided by experts who gather all the information needed based on prior experience. The total cost is reduced to present value. This means the amount of money that needs to be received now to pay for the special needs of the client over his lifetime. Depending on the severity of the disability, this can be a significant amount of money.

Also, all of the medical and hospital records and all other records of health care providers must be obtained before any settlement discussions can take place. Once all of this information has been received and thoroughly reviewed and lawyer has a good idea of what the value of the case is for settlement purposes, then the attorney submits a settlement proposal to the insurance company and the discussions begin.

When an offer is made, the lawyer must discuss it with the client and make recommendations and decide to accept the offer or reduce the demand and continue to attempt to resolve the claim. The talks will continue until a settlement is reached or the final insurance company offer is rejected.

Before finally deciding to settle or not, the client must be informed by his attorney of the ramifications of rejecting the final offer. The only alternative is to file suit and become involved in litigation which usually takes a protracted amount of time, effort and expense. Also, the attorney’s percentage of the recovery for his fee increases from one third to forty percent once suit is filed. The client should be fully aware of all of this before he decides to settle or file suit.