Personal Injury FAQs
Not every car accident case goes to court. In fact, many cases are settled without anyone ever stepping foot in the courtroom when you and the defendant (or defendant’s insurer) come to a deal. An auto accident attorney can help you negotiate such a deal, and having a lawyer may make it easier to get a fair outcome because the insurance company will understand how seriously you take your rights.
However, if you are not able to negotiate a fair deal with the insurer and if you aren’t happy with the settlement amount, then you’ll need to go to court to convince the jury that the defendant’s insurance company needs to pay what your case is worth. An attorney can advise you on when it makes sense to settle and can also help to prove your case in court if necessary to get a fair outcome.
Whether you go to court or not, having an attorney with experience is key. You need a lawyer with negotiation experience to get the fairest settlement offer, and with courtroom experience in case your claim ends up in court.
Can I still recover compensation for car accident damages if I wasn’t wearing my seat belt at the time of the accident?
In many states, your compensation will be reduced if you were not wearing a seat belt at the time of your crash. This is because not wearing a seat belt can result in more serious and more expensive injuries. However, the determining factor in whether you can recover compensation is whether the other party was at fault and negligent in causing the crash, not whether you were wearing a seat belt.
Because the laws differ by state on damages and compensation limits, as well as on how plaintiffs are treated if they weren’t wearing seat belts, you will need to speak with a local lawyer in your state for an assessment of the factors that impact your recovery after a crash.
If the insurance company for the other driver calls or contacts you, you should not answer any questions or say anything about what occurred. While you need to be polite, you don’t need to give a statement and you should talk to your lawyer before doing so.
It is especially important to talk to a lawyer before you agree to any type of settlement of your claim. Insurance companies are trying to save as much money as they can and pay out as little as possible. Claims adjusters and employees of the insurance company look out only for the company. They often try to settle cases quickly or for less money and may not explain to you exactly what you are signing when they try to get you to accept an agreement.
If you sign a settlement agreement and give up your right to sue, there is typically no undoing what occurred and you won’t be able to get more money, even if it turns out you’ve been more seriously injured than you thought. To make sure this doesn’t happen and that you do not accidentally take less than you are due or give up any of your rights, you should sign nothing without a lawyer. You also don’t want to accept or cash insurance checks without consulting with a lawyer first, as cashing a check could be seen as acceptance of the settlement.
The first thing you should do after a car accident is determine whether anyone was hurt, either in your car or the other vehicle. If someone was injured, you should immediately call for medical assistance. If no one was hurt, you should contact law enforcement.
If it is safe to do so, do not move your vehicles until law enforcement has responded to the scene and advised you about what to do. The location and placement of the vehicles could help the police to determine the cause of the accident. The police who respond to the scene will also take your statement, the statements of the other drivers, and statements from passengers and other witnesses.
In addition to contacting medical help and/or law enforcement, there are also several other key things to do after a car accident, including:
- Get the name and contact information of the other drivers and of eyewitnesses to the accident. You should also get insurance information from the other drivers.
- Contact your insurance company and the insurance company of the other driver.
- Watch what you say. While you should answer direct questions asked by law enforcement, you should not volunteer any information that you don’t need to, and you should never comment on who is at fault for the crash. It is especially important to be careful if an insurance adjuster shows up at the accident scene, since you do not want to say anything to the insurance adjuster that could compromise your claim (this is true whether the adjuster is from your insurance company or the other driver’s).
- Contact a legal professional. You should have a car accident lawyer representing you right away in order to protect your rights. Your lawyer will take over negotiations for you with the insurance company to ensure you get a fair settlement and that any evidence you need from the accident is collected.
- Get medical assistance. You should always get checked out, even if you don’t believe anything is wrong. There are some injuries (like internal injuries or brain injuries) that might not be symptomatic immediately. Some of these injuries can be very serious. If you do not get help right away, then the insurer or other driver could argue that your medical problem was not related to the accident. When you do talk to the doctor, make sure to explain what happened during the accident and to point out any injuries you sustained.
The law entitles you to copies of your medical records. To obtain your records, you will need to submit a written request to the facility where you were treated and/or to the doctor who treated you. When you submit your request, be sure to include your name (spelled correctly); your date of birth; any patient numbers assigned to you; and your Social Security number. Your medical records may not all be consolidated and it may be necessary to contact each service provider individually. You may also be charged a small fee to obtain copies of your records.
Consenting to treatment is not a waiver of your right to bring a malpractice claim. When you sign a consent form, this is an indication that you have been told about the risks of the procedure and agreed to undergo the procedure or receive the treatment anyway. In general, except in extreme emergencies, you will need to consent prior to receiving any type of treatment. In fact, when you enter a hospital, you typically sign a blanket consent form giving permission for general treatments you will receive.
However, when you sign a consent form, the form does not provide consent to permit the doctor to make mistakes.
In the vast majority of medical malpractice claims, you will need to have expert testimony to help you prove that you were the victim of malpractice. This is because these cases are highly technical and hinge on what an experienced physician or care provider would do, rather than what the average person would do. Only other doctors or care providers will be able to testify as to what a reasonable physician with your doctor’s background should have done.
The doctor you take action against will likely have his or her own medical experts as well, arguing that the doctor did not make a mistake. Many medical malpractice cases are essentially a “battle of the experts,” with the outcome of the case hinging on whether the plaintiff or the defendant has better witnesses. An experienced medical malpractice attorney can help you connect with the right medical expert.
The time limit for filing a medical malpractice claim is called the statute of limitations. States set their own time limits, and they are not uniform across the country. The time limits usually range from one to seven years; however, there may be special rules if the care provider was a public employee or affiliated with the government or a government agency.
While you may have up to seven years in some jurisdictions, it is advisable to bring your claim as soon as possible once you discover you have been the victim of malpractice. The more recently the malpractice occurred, the more evidence will remain of what occurred. Your medical malpractice attorney will be better able to gather evidence and information about recent events so that you can build the strongest case possible.
Doctors aren’t expected to be infallible with every diagnosis, but they are expected to be reasonably competent in all aspects of medical care, including diagnosing medical problems. That means that a misdiagnosis could be a form of medical malpractice, although it is not in every case.
Typically, your doctor can be considered to be liable for malpractice based on a misdiagnosis if:
- The doctor failed to complete a medical history.
- The physician failed to recognize obvious or known symptoms of an illness.
- The doctor failed to recommend or administer appropriate diagnostic tests based on the symptoms you were exhibiting.
- The physician or any care provider misread the test results.
There are certain conditions that doctors may misdiagnose more than others and/or where a misdiagnosis can have more serious consequences. Examples include pulmonary embolisms, cardiac problems, cancer, fetal distress and meningitis.
In situations where your doctor misdiagnoses these or other illnesses, the key test of whether you will be able to recover compensation is whether the doctor’s failure led to a worse outcome and caused harm. Simply being frustrated or emotionally upset about a misdiagnosis is not enough to give rise to a medical malpractice claim.
At The Abelson Law Firm, our dedicated medical malpractice attorneys will schedule a free consultation in person or over the telephone. You can explain your situation, and our malpractice attorneys will help you to determine whether you might have a case. Our attorneys are experienced in medical malpractice litigation, which is a very complex and specific area of law, and our specialized knowledge can be useful in determining if you have a potential medical malpractice claim.
If our malpractice attorneys believe you may have a claim, it will be important to obtain medical records that detail your condition prior to, during and after treatment. All medical records should be reviewed as part of your malpractice claim, including details on consultations with care providers; information on medical exams and follow-ups; and complete investigations into the event that was potentially negligent. Typically, expert witnesses will need to be involved in evaluating your medical records and in proving that the doctor or medical provider who treated you was negligent.
When evaluating your case, our malpractice attorneys will also consider other outside factors to help determine what options you have. These factors can include state caps or limitations on malpractice awards; time limits for filing claims (called statutes of limitations); and the severity and lasting consequences of your injury. Every case is different, and these essential factors should be evaluated by a knowledgeable malpractice attorney in deciding how to proceed.
Health care providers, including physicians, hospitals, dentists and nurses, have an obligation to do their jobs with reasonable skill. If any of these medical providers falls short and is negligent in the care they provide, this could be considered medical malpractice. An injured patient can make a legal claim for medical malpractice if the negligence was the direct cause of injury.
In a medical malpractice claim, the injured patient must demonstrate that the medical provider was negligent by comparing what the provider did with what a reasonable medical provider would have done in a similar situation. If any reasonable medical provider would have done better or avoided the mistakes made by the provider in question, this is negligence that can lead to a malpractice claim.
Some of the most common failures on the part of health care providers that lead to malpractice claims include:
- Improper handling of patient records
- Misreading test results, including CT scans, MRIs, X-rays or other lab tests or medical results
- A failure to recognize or respond to the symptoms a patient is exhibiting
- A surgical mistake, including operating on the wrong patient, operating on the wrong body part, or leaving a surgical sponge or tool inside the patient
- Failure to diagnose a medical condition
- Drug errors.
These are just a few of the many medical mistakes that can be made. In any case where a medical provider is negligent in a way that causes harm or that worsens a medical problem, the patient could be entitled to take action. The negligence doesn’t need to be the only cause of the harm, so long as it played a role in worsening the medical problem. Because it can be difficult to determine whether you have a medical malpractice claim, it is advisable to consult with an experienced medical malpractice attorney to evaluate your case.
There are maximum drive-time rules passed by the Federal Motor Carrier Safety Administration (FMCSA). Changes were most recently made to the Hours of Service Rules in 2011 and the new final rule on the issue was published in the Federal Register on December 27. The rules became effective as of February 27, 2012, with compliance not required for some provisions of the rules until July 1, 2013. FMCSA hours of service regulations, including updated rules, can be found on their website.
What are some safety rules and regulations that truckers must follow in order to minimize accident risks and protect others on the road?
Truck drivers are prohibited by the Code of Federal Regulations from engaging in certain risky or dangerous behaviors. Some of the prohibitions imposed on truck drivers include:
- A prohibition against having a blood alcohol content of 0.02 percent or higher when coming to work or when driving.
- A prohibition against having any alcohol in their possession, including alcohol found in common medications such as cough syrup. Drivers are permitted to have alcohol as part of a shipment in cargo compartments of the truck.
- A prohibition against consuming any type of alcohol while doing safety functions.
- A prohibition against using any drug — legal or illegal — before work that could cause impairment or interfere with the ability to operate a vehicle safely.
- A prohibition against refusing to submit to a test for alcohol or for drugs as required by the Department of Transportation (DOT).
Truck accidents in the United States are caused by many factors. The unique size and features of a truck compounds the risk of accidents since trucks have more momentum, longer stopping distances and more maintenance requirements than passenger cars. Some examples of behaviors that can lead to truck accidents include:
- Road rage or driver aggression
- Pressure and unrealistic scheduling by trucking companies
- A failure to maintain or inspect truck parts, including brakes, tires and lights
- Tailgating or following too closely
- Lengthy hauls and tough schedules with minimal breaks
- Driving while distracted, especially when texting or using a cell phone
- Not having proper blind-spot mirrors
- Speeding, going above the reduced speed limit for trucks and/or driving too fast for road conditions