I WAS HURT IN A CAR ACCIDENT – SHOULD I SUE?
No one expects to be in an automobile accident, particularly one that results in personal injury. Most people never give the possible outcomes a second thought until they find themselves needing medical treatment after an accident. The job of a professional personal injury law firm is to work as a team with the victim to put forth the strongest and most convincing case that will lead to a speedy, just resolution to the victim’s claim for damages.
What is a “Personal Injury” lawsuit?
In most Personal Injury (“PI”) cases, the injured victim sues an insurance company for losses the victim incurs due to an accident. Michigan is what is known as a “No-Fault” state, which means that when you have an accident, your auto insurance provider automatically pays for your certain damages, regardless of fault, up to a specified limit. In exchange for this guaranteed payment of no-fault insurance, you give up some of your rights to sue the other driver. On the other hand, you are also protected from being sued in the event you are at fault in an accident.
What are “PIP Benefits” in an auto accident case?
Your insurance carrier is obligated to pay Personal Injury Protection (“PIP”) Benefits, including:
1. All medical bills related to your auto crash injuries that your health insurance does not pay. This includes, but is not limited to, co-pays, prescriptions, and even mileage going to and from health care providers;
2. 85% of any lost wages resulting from your injuries;
3. Up to $20/day for replacement services for household duties you performed prior to the auto crash and can no longer do as a result of your auto crash injuries. These duties can include cooking, dishes, house cleaning, laundry, driving, lawn mowing, snow shoveling, etc;
4. Attendant services, including, but not limited to, nursing services at home. Some examples: compensation to a spouse or child who assists you with bathing, dressing, massage, exercise, medications, changing bandages, and other services of a personal nature.
These are PIP benefits you pay for when paying your insurance premiums. These benefits are not “handouts.” You are entitled to what you have paid insurance premiums to cover.
What information do I need to give my attorney?
It is important that you document all expenses and services as proof, using forms provided by either your attorney or insurance company as well as a calendar. Keep track of:
• Mileage to and from medical appointments, including OT, PT, and other providers;
• Replacement services such as housekeeping, cooking, yard work, driving, and laundry;
• Attendant/nursing services such as home nursing, personal care assistants, medication management, massage, PT, and OT.
You also must have your doctor write a prescription on a month-to-month basis for replacement/household and attendant/nursing services. The prescription will usually be written for a service to be provided, for a certain number of hours per day, for a specified period. The replacement benefits alone can add up to more than $7,000.00 per year if the doctor prescribes them and the claimant and helpers properly document these services.
What other things should I document?
• Do everything possible to remember any facts and details about the incident, any conversations you had with anyone concerning the incident and any statements you may have given to anyone in this regard.
• Give your attorney the names and contact information for any witnesses who could testify (either on your behalf or on behalf of the other driver) about the incident, including when, how, and why it occurred.
• Give your attorney the names and contact information for any witnesses who could testify about any injuries you claim to have suffered from the incident as well as any pain, discomfort or limitations that have resulted therefrom.
• Document your injuries as completely as possible, both in writing and with pictures as appropriate. Keep copies of all your medical records and bills.
• Keep a personal injury journal, or diary, in which you should describe daily how you are feeling, what limitations you have on your activities, how much pain you are experiencing, where you are experiencing that pain, whether you are taking any medication or undergoing any treatment and how the injuries and/or pain have affected your lifestyle on each particular day. You can also use the journal to take notes during medical appointments.
Can I also sue the negligent driver?
You may also have a case against the “third party” driver who was at fault for the car crash. This third-party liability is for non-economic damages: for pain and suffering, and loss of consortium, as well as for wages lost beyond the three-year period which your own insurance carrier usually covers. In order to sustain a third party claim, you must sustain a threshold impairment of body function. In other words:
• Your injury must be severe.
• It must be objective and supported by your medical records and doctor’s opinion.
• It must be caused by the auto crash.
• Typically, this means your injury must result in at least three months off of work.
• It must also affect your ability to lead your normal life style.
These cases are difficult and are often dismissed because the injury is not severe enough.
What is involved in preparing for a trial?
In preparing your case for trial, the attorney may need to know some personal things about you which you may initially consider to be private, irrelevant or immaterial to your claim for damages. The attorney’s purpose in asking questions in this regard is not to invade your privacy, but to prepare your case thoroughly for trial. If there are any difficulties with your case, or there are points that need further documentation or clarification, you and your attorney should know about them as soon as possible to prepare your case adequately and effectively and to counter any possible defense counsel attacks. Your journal will help you and your attorney during depositions and the trial to be as specific as possible about the kinds of damages and injuries you have suffered.
You must be candid with your attorney about any prior problems you have had with the police, the courts or any other third party, even if you believe they are insignificant or occurred long ago. You must also let your attorney know whether you have experienced any prior injuries or have undergone any medical, psychiatric or counseling treatment in any regard, including alcohol or drug dependency treatment.
Be assured that the defendant, or his attorneys and investigators, will do everything they can to obtain this type of information from outside sources, and they will attempt to use it to their advantage at trial. Only if your attorney knows about issues ahead of time can he work together with you to prevent introduction of that evidence, if any such evidence exists, or to limit its use at trial. One of the worst things a client can do in any legal case is withhold information from the attorney, only to have the opposing attorney blindside your attorney with that information during a hearing. There should be no surprises at a trial!
Will I be asked questions, or have to testify?
The defendant and her attorney have the right to conduct “discovery” under the rules of civil procedure. It is likely that the defendant’s attorney will be sending interrogatories (lists of questions) to you. Those questions will seek answers on many issues concerning your personal background, the incident, any injuries you sustained and your claim for damages. Your attorney will have you complete a questionnaire which records much of this information already, and will help you and your attorney prepare appropriate answers to the defendant’s interrogatories.
The defendant’s attorney may also want to take your deposition, which is a statement made under oath. At the deposition, you must be prepared to respond to certain questions about you, your injuries and your claim. The defendant’s attorney will ask these questions. Your attorney will be present along with a stenographer. You and your attorney will prepare for this deposition testimony well in advance of the deposition, and your attorney will protect and guard your rights.
Do I have to submit to a physical examination?
When you claim physical and/or psychological damages as a result of your personal injuries, the defendant may have a right, as allowed by rules of civil procedure, to have his own physician and/or psychologist or psychiatrist examine you at the defendant’s own expense. If such a request is made by the defendant, you and your attorney will have an opportunity to review and question, if appropriate, the qualifications of the examining physicians, psychologists or psychiatrists and will also have an absolute right to obtain any copies of evaluations and reports that result from such examinations.
Other things to keep in mind
Surveillance – Always remember that you may be under video surveillance by the insurance company. If, for example, you have claimed that your injury keeps you from driving, and the insurance company representative spots you driving, your case is weakened. Particularly in today’s world of smartphones, iPods,® and digital webcams, it seems “there is always a video.” Don’t be paranoid, but do be mindful.
Whether or not it is captured on video or in photographs, you may from time to time wonder what conduct is expected of you while a case is ongoing. For example, many clients ask questions such as, “Would it hurt my case if I returned to work?” or, “Would it help my case if I refrained from doing certain kinds of activities?” You should refer these types of questions to your physician, who will guide you on all decisions on health-related issues. If, however, you have any question whether a matter should be referred to your physician, please consult with your attorney.
I think I have a personal injury claim – what do I do next?
To sum up, a great deal of mutual effort and cooperation between you and your attorney will be necessary to ensure that you make a well-prepared, well-informed, and persuasive presentation of your claim. Honesty, openness, and candor with your attorney is crucial. If you have been injured in a car accident, it is in your best interests to consult with an attorney who is experienced in personal injury law. With proper counsel and cooperation, you will be able to move forward in an organized, efficient and positive manner and reach a prompt and fair resolution of your claims.
For more information, please contact us:
Rex C. Anderson, PC
Attorney at Law
9459 Lapeer Rd. Ste 101
Davison, MI 48423
Phone: 810- 653-3300
Author: Rex C. Anderson