Washington Personal Injury Blog

Why should someone get money for pain and suffering?

Don Jacobs — Thu, 04 Sep 2008 12:47:23 GMT

Jurors called to service in a personal injury trial often have a have a difficult time trying to determine the value of another human's injury. When someone is careless and injures another in our country, they become responsible for the damage they caused. In legal terms, they become responsible for economic and non-economic damages. Jurors usually don't have a problem with determining fair economic damages. Examples of economic damages are things like medical bills, wage loss and car repairs. But people have a lot of difficulty with non-economic damages, what some people call the fuzzy or unclear stuff like pain and suffering. Pain and suffering does fall into the category of non-economic damages. However, the category includes a lot of other items as well. From little things like inconvenience all the way up to some of the most important things in all of our lives, like loss of a loved one, loss of a limb, loss of health or the disruption of someone's lifestyle. Some people ask why anyone should be entitled to money damages for these items. They argue that money can't replace a loved one, can't fix someone's health or make it so the injury doesn't cause disruption in their life. It is hard to argue that money is an equitable replacement for many of the harms and losses caused by an injury. Because of this, some people think that when someone injures another, they should only have to pay for economic losses. The other losses should just be written off under the "things happen" theory in life. So why does our system require that someone who injures another be responsible for both categories of damage? Our American justice system was inherited from the British. The principles of justice in the system come from our Judeo-Christian culture. That culture values individual human life. One of the foundations of our nation is the feeling that certain rights are given to every individual. Our Declaration of Independence includes the words "Life, liberty and the pursuit of happiness". As such, our culture puts a high value on the sanctity and dignity of human life. If someone causes injury to another, either intentionally or carelessly, and they only have to be responsible for the medical bills and wage loss, that would be the same as telling the victim that their life, their health has no value.

Originally posted at InjuryBoard by Don Jacobs

Injured pedestrians and insurance benefits

Don Jacobs — Mon, 01 Sep 2008 15:07:32 GMT

So you find yourself crossing a street in a marked crosswalk after the "WALK" sign is illuminated. Or maybe you are riding your bike in the same situation. The law in most states gives you the right of way in this situation. So what happens if some careless driver makes a right turn without looking? If his negligence causes an injury you have a right to compensation. When the case is settled, sometimes many months down the road, you have the right to be compensated for any out of pocket losses and the harm you went through. So what about before then? Who pays for your medical bills or lost wages in the interim? If the driver who struck you has "Personal Injury Protection" or "PIP" coverage on his policy you may be able to access it to pay for medical bills. This "PIP" coverage is an extra coverage people buy to pay for medical bills and some wage loss if they or their passengers are hurt in an accident. Due to a quirk in some state's laws, it can also cover pedestrians they hit with their car. As an injured pedestrian, you become an insured under the policy and are treated the same as if you were a passenger in the car. In a sense it is treated just like you were the customer who purchased the insurance. In fact, if you had your own insurance, they would refuse to pay until you used up this coverage. This coverage pays for 100% of your medical bills subject to a typical policy limit of $10,000 to $15,000 and a one to three year coverage period. Most medical clinics accept this coverage as it usually pays 100% of their bill, unlike normal medical insurance where they have to take significant discounts. Unfortunately, a lot of pharmacies will not direct bill and require payment up front for medication, although you can get reimbursed if you provide the pharmacy receipts. The insurance company may require you fill out an application for benefits and sign a medical release form before they provide coverage. However, once it is open you'll have a claim number to give to whatever clinic you see for direct billing. Most clinics accept this coverage since it pays so well. There is no deductible or co-pay and it covers 100% of the bill. However, some clinics still demand some up front payment from a patient to start care which they reimburse once they get paid by the company. You will need to ask any clinic you choose what their policy is so you can make sure you treat somewhere that doesn't require this. Asking if they accept PIP coverage and direct bill should do the trick. The "PIP" coverage also has a wage benefit but it isn't near as good as the medical benefit. The wage benefit won't pay anything for lost work until you are off for at least two weeks. After that, they typically pay only 85% of your take home or $200 a week, whichever is less. It also takes some time to get this benefit started. Proof of disability from a doctor and proof of lost income from the employer must be provided. Insurance companies are notoriously slow in paying this benefit. Delays and uneven payments are the rule, not the exception. Relying on this coverage for steady regular payments after you miss two weeks would be a mistake. It is also important to remember that this "PIP" coverage is different from the driver's liability coverage. The liability coverage will provide funds you can access once you are through with treatment and your injury has healed. Your settlement, or court award if you have to go through a lawsuit, will include all of your medical bills, your full wage loss and money for pain and suffering. A settlement will often not happen for many months and if you have to use the court system, it could take a year or more. Until then, the only money you get as an injured pedestrian involves the PIP benefits explained above.

Originally posted at InjuryBoard by Don Jacobs

Insurance medical exam

Don Jacobs — Sat, 30 Aug 2008 22:26:58 GMT

Someone isn't paying attention while driving. Maybe they're on the cell phone, texting or looking at emails. Maybe they're late and can't find an address, frantically looking around for a street sign. For whatever reason they don't keep their eyes on the road ahead. Not paying attention while driving isn't just negligent, it's illegal and dangerous. Doing so can cause a collision. People can get hurt. Property can get damaged. Not paying attention makes you responsible for the other person's injury and property damage. Compensation has to be paid for the damage you caused. When people do this they usually turn the responsibility over to their insurance company. After all, that's what they pay them for. Once they hand over the responsibility however, they rarely learn what happens to the people they hurt. They aren't told how the other driver is treated. People stuck dealing with an insurance company to recover fair compensation for an injury don't typically find any sympathy. To the contrary, they find their injury being questioned or its seriousness disbelieved. Many find their credibility attacked and their statements about how the injury affects their life belittled. If they choose to treat with a chiropractor they are often told the treatment won't be covered. When injured consumers can't deal with this confrontation and can't get fair compensation on their own, they often find themselves calling a lawyer and becoming involved in a lawsuit. That's when the real attacks on credibility occur. Insurance companies know that the American public has bought into their now decade's old media and public relations program to convince everyone in the country that all lawsuits are frivolous. They know by attacking the victim's credibility they can use that public perception to their advantage. One of the tools they have at their disposal is the court ordered medical exam. The tool is often referred to in the language of the industry as the "independent medical exam". The process involves forcing the injured consumer to have their body examined and submit to questioning by a doctor chosen by the insurance company. Often the outcome is predictable. People weren't really hurt or any injury they grudgingly concede occurred is pooh pooh-ed as minor and inconsequential. They never seem to agree with the doctors who treated the victim. They either treated them too much or kept them off work too long. The end result? The injury victim from the collision finds themselves being victimized again by the process. They wonder why they ever brought the claim in the first place. And the insurance industry? Not only do they cherish having created this feeling, they hope the victim tells all their neighbors, friends and family.

Originally posted at InjuryBoard by Don Jacobs

Evaluating an injury case

Don Jacobs — Fri, 22 Aug 2008 12:06:48 GMT

When someone harms another human in our country they become legally responsible for the injury they cause. This is true whether the injury was the result of an intentional act, like an assault, or if it happened because they were just being careless, as in most auto accidents. This personal accountability is the foundation of our tort system. We are all legally responsible for our actions. We inherited this law from the British over two hundred years ago. The act of injuring someone is referred to as a "tort". So how much is a tort case worth? Most states separate tort damages into two categories, economic and noneconomic. Examples of economic damages are things like medical bills, wage loss or car repairs. People usually think of noneconomic damages as the pain and suffering in the case. The category does include pain and suffering, but it involves a lot of other items as well. Noneconomic damages can include little things like inconvenience, and very big things like loss of a loved one, loss of life or limb, loss of health or the disruption the injury created in one's ability to enjoy life. Valuing noneconomic damages can be difficult. If you ever get to serve on a jury in a personal injury case, you will hear other prospective jurors state they have no idea how to put a price tag on a person's injury. Don't expect much help from the judge either. Judges routinely respond to questions on how to figure damages by telling jurors no set formula exists. They tell them to use their own personal judgment based upon the evidence. At the end of the case, the judge will read aloud a written instruction on the law concerning noneconomic damages. This written instruction isn't much help either. In most states, the language from the instruction reads similar to the following:

"In determining an award of noneconomic damages, the law requires a reasonable basis for your computation. With reference to these matters, you must be governed by your own judgment, by the evidence in the case and by these instructions."

So how do lawyers evaluate a case? How do they advise a client as to the reasonableness of a settlement offer? Lawyers experienced in the field will tell you every case is different. Each needs to be evaluated individually. Usually it comes down to the lawyer's experience and personal judgment. Sometimes focus groups or mock juries are used. A lawyer may meet with a group of other lawyers with similar skills to discuss cases and get input on value. Lawyers will take into consideration many things when trying to determine value. Fault for the collision is the most important of course, followed by how severe an injury was suffered. Obviously, the more serious injuries have more value. Many other items are considered, some even unfairly so. The type of impression a client makes, what they do for a living, their body type and their state of health before the collision are all factors a lawyer will consider. There have been many books written on case evaluation and you can find information on the internet on the topic, but there is no substitute for the evaluation skills of an experienced lawyer. Lawyers who specialize in the area are familiar with what verdicts are being won for similar injuries in the community. If anyone tells you some formula exists that you can plug the facts from any case into to arrive at a value, be very skeptical.

Originally posted at InjuryBoard by Don Jacobs

Settle or sue?

Don Jacobs — Wed, 20 Aug 2008 18:25:12 GMT

An August 8, 2008 article in the New York Times discussed an interesting study concerning whether or not consumers are better of taking their case to court if they don't like the settlement figures. The research followed 2,054 cases that went to trial from 2002 to 2005. In 61% of the cases, consumers would have been better off taking the settlement offer. Insurance companies made the wrong decision only 24% of the time. The vast majority of all cases settle out of court. The ones that end up going to trial primarily do so for three reasons. The biggest reason is a dispute over fault. If both sides say they had the green light it makes it very difficult to settle. The next big reason is a fight over medical causation. An insurance company may feel the accident victim's injuries weren't all caused by the accident. Sometimes people have pre-existing medical problems or have the unfortunate luck of getting hurt somewhere else after an accident. The final reason is the age old dispute over value. Either the insurance company thinks the offer from the injury victim's lawyer is too high or else the victim wants more than what's offered by the company. Every case is different of course, and it would be wrong to conclude that you should always take the insurance company's offer because of the results of this study. The study also doesn't show whether or not the lawyers handling the files were specialists in the field. Oftentimes lawyers specializing in personal injury law find a case not being handled properly by another lawyer. Some lawyers have very little litigation experience or just don't do well in a courtroom. Still, if you can get a reasonable offer without going to trial it usually makes sense to settle the case. Even if you recover more than the offer at trial, you need to factor in all the extra court costs to see if your net recovery is any better. And then there is always the large amount of time, stress and anxiety associated with a trial. As an old lawyer once told me, "Trials are like surgery. The operation may be a success but you still get all cut up".

Originally posted at InjuryBoard by Don Jacobs

Changing attorneys

Don Jacobs — Fri, 15 Aug 2008 20:17:00 GMT

Recently I received a call from a consumer injured in an auto collision. I listened to their story and learned they were a pedestrian in a crosswalk crossing on a green signal when a car decided to make a right hand turn. They were hit, rolled up over the hood and thrown to the pavement. They were fortunate enough to survive with only a bad case of road rash and a sprained shoulder. After I heard their story, I walked them through the law on pedestrians in crosswalks, explained their right to be compensated for their injury and told them how the process worked. That's when I learned they already had an attorney. They explained how dissatisfied they were with their lawyer. It seems he never returns their calls. Calls to his secretary to schedule an appointment are met with the response that only he schedules his appointments and she'd have to take a message. They wondered about the process of switching to another law firm. Although calls of this type are rare, most people are unaware they have an absolute right to change attorneys at any time. They may end up owing the former attorney for the work he or she has done to date, but the new attorney can usually work out some sort of arrangement to share any attorney fee once the case is settled. This way it doesn't cost the client any money out of pocket when the switch occurs. And the attorney being discharged is required by law to surrender the file to the client or the new attorney of their choosing. If consumers are in an unhappy relationship with an attorney, changing counsel is often the wisest path to take.

Originally posted at InjuryBoard by Don Jacobs

Allstate insurance tactics revealed in new book

Don Jacobs — Wed, 13 Aug 2008 19:59:27 GMT

Allstate has generally become known as the worst insurer in America due to its "deny, delay, and defend" method of handling claims. A new book describes the tactics used by the company that allowed it to record historic profits over the last decade. "From Good Hands to Boxing Gloves", written for lawyers about two years ago by author Stephen Berardinelli, is now out in a more readable and smaller version for consumers. The new book explains in detail how insurance consultant McKinsey & Co. advised Allstate to institute new claims handling practices that would eventually save the company billions of dollars in claims. The book shows how Allstate and other insurers with claims systems also created by McKinsey, reaped billions of dollars in profits by improperly denying claims. It even explains how insurance companies profited by denying Katrina claims and forcing the cost to rebuild onto American taxpayers. It details how Allstate's claim handling process was completely redesigned to make claimants go away or accept pennies on the dollar. If they refused, Allstate threatened to fight back with banks of lawyers and years of costly litigation. Recently the American Association for Justice released the results of a nationwide study to determine the top ten worst insurance companies in America. Allstate was joined in the top ten by State Farm, Farmers and Liberty Mutual. All of these companies have adopted claims handling programs similar to Allstate's.

Originally posted at InjuryBoard by Don Jacobs

Recreational injury - who is responsible?

Don Jacobs — Sat, 09 Aug 2008 12:30:00 GMT

Summer is upon us in the great northwest and people are taking to the outdoors. State parks, federal lands and large private landholders such as timber companies see lots of visitors using their land for recreation. People riding bikes, hiking, bird watching and scouting out fall hunting sites are all out in the woods. Unfortunately, every year someone dies or becomes injured while enjoying the outdoors. Hikers get lost, people drown in lakes or fast moving rivers and someone is always getting hurt using forest roads or trails constructed without the usual safety standards people take for granted on roads or trails in town. An accident that seems to happen with some regularity occurs when motorcyclists fail to see cables stretched across private roads blocking entry. So who is responsible if someone is injured while using another's land? The vast majority of injuries in the great outdoors occur due to ignorance, alcohol, firearms, lack of preparation or the usual dangerous situations nature likes to throw our way. Sometimes however, the injury or death has nothing to do with nature, but is caused by dangerous man made conditions existing on the land. An example is an old mine shaft opening, hidden by vegetation. Who is responsible if someone becomes injured in these situations? With a view towards encouraging landowners, both public and private, to open up land for recreation, Oregon and Washington have passed recreational immunity laws. These laws make a landowner immune from any civil suit brought by someone killed or injured while using their land. The immunity goes away if the landowner charges a fee for the use of the land. The law reasons that anyone operating a business and looking to lure customers onto their property for profit has a duty to keep the property reasonably safe for customers. The immunity aspect of the law was recently upheld in Oregon in Coleman v. Oregon Parks and Recreation Department. Coleman was injured while using state land and argued the immunity law didn't apply because he paid a fee to camp. The court noted he did pay a fee to camp but pointed out his injury had nothing to do with the campsite. His suit wasn't allowed to go forward. There are other exceptions to the recreational immunity law other than the fee rule. One involves people injured by a dangerous condition created by the landowner and intentionally hidden from view.

Originally posted at InjuryBoard by Don Jacobs

Delay, deny and defend

Don Jacobs — Thu, 07 Aug 2008 13:22:00 GMT

The above phrase has been adopted as a tactic by many of the major U.S. insurance companies since the 1990s. And why not? Profits are at an all time high. Some insurance companies are reporting record profits. The reason? Delay, deny and defend. From the hurricane losses in the gulf, to fires in California to applying the technique across the board to all auto accidents, doing so can increase insurance company profits like never before. Delay, deny and defend. When someone injures you or your property, our tort laws hold them responsible for the damage. Drivers who make a mistake for the most part admit the error and try to do the right thing. They turn it over to their insurance company, expecting the company to take good care of the other driver. After all, that is why they purchased the insurance. Unfortunately, once they turn it over, they rarely find out how the other driver is treated. Under the terms of the policy, a driver who causes an accident has no power to make sure the other driver is treated in a reasonable manner. All decisions on which claims to pay, how much to pay and when to pay are solely controlled by the insurance company. Once the claim is turned over, most people don't learn about any tactical delay in accepting the claim, denials of liability or threats to put it through a long court ordeal. Even if they did learn of this shoddy treatment they have no power to intervene. If they try and do so their insurance company may not so gently remind them of their duty to cooperate or risk losing coverage.

Originally posted at InjuryBoard by Don Jacobs

Whose insurance should pay?

Don Jacobs — Tue, 05 Aug 2008 13:22:24 GMT

People hurt in accidents caused by another driver are often reluctant to use their own insurance. After all, they reason, the other driver caused the collision, why should my insurance pay? They fear their insurance will go up if their company has to pay anything. In fact, a lot of consumers are reluctant to even notify their company an accident happened for fear of a rate increase. They often inform the various medical providers they visit to bill the other company, not theirs. So what does the other company generally do if this happens? Although they do pay up front for the property damage, as many states have consumer laws requiring this if liability is reasonably clear, rarely do they ever offer to pay for medical bills or lost wages until a case is settled. Many people think they should. An argument can certainly be made that the moral obligation to pay for damage you caused arises as soon as the damage is done. Referred to as "advance payments" in the industry, paying for medical bills or lost wages before a case settles is extremely rare. Insurance companies instead like to watch the medical bills mount up and the wage losses increase. They know that soon doctors will be threatening collection and monthly bills won't get paid if paychecks are missing or short. This puts pressure on the injured consumer to settle quick and short. An important tool in any negotiation is knowing how long the other side can last. Once the insurance company sees an injured consumer looking desperate, they know they have the upper hand. At that point the case is often settled for much less than its actual value. This method is a very common manipulation technique in insurance negotiations. Adjustors like to point out just how long the case will take to work through the court system if a consumer doesn't accept a low ball offer. The best defense against this tactic? Purchase your own insurance before an accident to cover medical bills and full lost wages. Retain an attorney early on after an accident. The insurance company still has much more power in the negotiation process than the average consumer, but there are some ways to level the playing field a little.

Originally posted at InjuryBoard by Don Jacobs