Prompt Investigation is Crucial

Prompt investigation is important in every kind of accident, but is especially critical in obtaining a satisfactory settlement or an excellent jury verdict in a tractor trailer accident case. Under Virginia law, the injured party, called the plaintiff, has the burden of proving how and why his accident happened. If the injured party cannot do this, he cannot win his case. The person who caused the accident can remain silent; they have no obligation to present evidence or a defense of any kind at trial as to the accident’s cause.
This may not seem fair, but it is a fact the injured plaintiff and their tractor trailer accident attorney must live with. Consequently, in a trucking case, where the stakes are often high because injuries and other damages are frequently very serious, it is critical that an investigation begin immediately after an accident. Otherwise crucial evidence case may be lost forever.

The Insurance Company Investigation

Remember, you’ve got competition. Early accident investigation is important in most cases, but in crashes involving large trucks it can be decisive and insurance companies know this. It is standard practice for a trucking company’s insurer to act within minutes or hours after a bad accident to secure evidence that may help its truck driver avoid accountability for his negligence.

Sometimes a trucking company or their insurance company acts so quickly that investigators arrive at the scene while the police are still there. The investigator’s goal is to find all evidence that might help show their truck driver is not responsible for causing the crash. Don’t expect they will bother to document evidence that may help your case!

Of course, an innocent person injured through the negligence of a trucker cannot field a team of investigators as quickly as a trucking company can. However, by engaging an attorney to investigate your case as quickly as possible, you may be able to preserve crucial evidence that will help you win your case.

Eyewitness Accounts

Sometimes the most important testimony regarding the causes of a truck accident comes from independent eyewitnesses who saw the accident take place and recognize it was the defendant’s fault. This type of evidence, especially when it comes from someone who is not acquainted with the plaintiff, usually makes a positive impression on jurors and is very important.

Finding these witnesses soon after the crash, and documenting their recollection of the accident while it is still fresh in their minds, is imperative. Nothing is more discouraging for an attorney than to track down a witness a year or two after an accident only to have that witness tell him the accident happened so long ago the witness really doesn’t remember much about it.

Police Investigation

You want your lawyer or a member of his staff to interview the law enforcement officers who investigated your case as soon as possible. It is rare for a police officer, sheriff, or state trooper to see an accident happen. However, the evidence they gather at an accident scene may play a critical role in the success of your case and reinforce eyewitness accounts. Where no independent eyewitnesses exist, a police investigation may provide most of the first hand evidence a jury will rely on to determine how your accident happened and who was at fault.

Law enforcement officers usually respond to serious truck accidents within minutes. They photograph the scene and the damaged vehicles. They measure skid marks and tire tracks. They examine vehicle debris and scan the area for radiator and brake fluid. When they investigate accidents involving death or severe injuries, they may also ask a special crash team to perform an accident reconstruction. Your lawyer wants to secure all this information early in your case so he can engage experts to help piece together what happened during your accident.

Although police officers ordinarily write up their findings in formal investigation reports, sometimes they don’t include everything they know or remember. By interviewing these officers promptly, your lawyer can document what they remember but didn’t write down. Like other eyewitnesses, a police officer’s independent memory of an accident is likely to fade with time.

Many officers keep personal notebooks in their squad cars and make handwritten notes identifying eyewitnesses and quoting their exact words. They may not copy these notes, word for word, in their official accident reports. Worse, they sometimes throw away their personal notebook when it is full, when they change employers, or when they move. For all these reasons, a personal interview with an investigating officer shortly after a crash can reward you and your attorney with useful information that may not be available later.

Egena Younger

Author: Egena T. Younger

You have been involved in an accident and are contacted by the insurance company. The adjuster requests your full name, address, date of birth and social security number. You feel uncomfortable providing such private information, but you are told that the information is required to handle your claim, or maybe you are told that it is required to properly issue your check upon settlement of your claim. No matter what the reason, this information is stated to be essential to the investigation and processing of your claim. So you give the adjuster the requested personal information.

What you don’t know (and aren’t told) is that this information is being put into a national data base maintained by a database service that provides insurance companies with a list of your prior Bodily Injury, Auto, Workers’ Compensation and Homeowner claims. This information is provided to any insurance company that subscribes to this service (and almost all of them do); the information provided includes all claims presented by you within the last fifteen to twenty years. This information also includes the coverage for which you filed the claim, the date of the incident, the type of injury, and the settlement for you and anyone else who resides in your household. The database service also sends an alert to every insurance company that has an open claim for you.

This claims information service is traditionally called the “Index System” 1 (or “Index Database”) and is used by most insurance companies to secure the claims history of every claimant. 2 Therefore, when seeking attorney representation, it is very important to inform your attorney of your complete injury claims history. An accurate history will enable your attorney to obtain medical records, if necessary, and avoid potential settlement delays. After your medical treatment for injuries is complete and your attorney has obtained the medical records documenting this treatment, then a submittal package is sent to the insurance company to serve as the basis of settlement discussions. Normally after a review and evaluation by the insurance company, the case is ready for negotiations and a client anticipates an offer will soon be extended. However, if there is a prior claims or medical history that the client’s attorney is unaware of, then at that point the insurance adjuster may request five to ten years of complete medical records for prior claims. Securing these medical records, and sometimes interviewing doctors to separate prior injuries/claims from the present claim, may delay the start of settlement negotiations for many months. If your attorney is aware of your medical and claims history at the beginning of your case, then these issues can be addressed earlier and often more successfully.

The Index Data Base does provide a wealth of information to insurance companies and can be a great investigative tool for them to detect fraudulent claims and identify overlapping claims. However, multiple claims are sometimes interpreted incorrectly and assumptions are made that are not accurate. Those situations require more investigation. Also, as with any database, the information is only as good as the information that is entered accurately into the database, and sometimes errors are present.

About the Author: Egena Younger is a claims consultant for the personal injury law firm of Allen & Allen. She works under the supervision of Chesterfield accident attorney Trent Kerns, assisting clients with their injury cases.

1 - The Index System has been the subject of a number of mergers over the years so that it has become increasingly comprehensive. Up until 1997, the Index System was maintained by the American Insurance Services Group, Inc. (AISG), an affiliate of the American Insurance Association (AIA). See “AISG Announces Key New Options and Services for the Index System; Provides Industry More Information and Flexibility in Evaluating Insurance Claims Through the National Database”, Business Wire, 2/26/1996, at http://www.encyclopedia.com/doc/1G1-18030582.html. In 1997, the Index System was acquired by the Insurance Services Offices, Inc. (ISO) and merged with its databases. See http://www.iso.com/Press-Releases/1997/AMERICAN-INSURANCE-SERVICES-GROUP-BECOMES-PART-OF-ISO-PAVING-THE-WAY-FOR-SINGLE-INDUSTRYWIDE-ALL-C.html.

2 – Presently the Index System is provided by Insurance Services Offices, Inc. (ISO) under the name A-PLUS. According to its website: “More than 980 auto insurers — representing nearly 93 percent of the U.S. private passenger premium volume — have committed to reporting to the A-PLUS database.” http://www.iso.com/Products/A-PLUS/A-PLUS-the-Automobile-Property-Loss-Underwriting-Service.html.

Bill Bootwright, Claims Consultant

Author: William P. “Bill” Bootwright, Claims Consultant

You have often heard the expression “you can’t have your cake and eat it, too.” (1) But that’s exactly what the insurance companies try to do in handling claims. Whatever the situation, they try to argue that means the injured person wasn’t hurt very much. Sometimes they create a problem, and then try to benefit from it. Just the other day I had a case with a claims adjuster where this expression applies.

To give you a little history, the claim involved a motor vehicle intersection accident where our client sustained soft tissue injuries. The collision was so hard his car was totaled. Even though there was an independent non-biased eyewitness who told the police officer at the scene that the defendant (the other driver) had indeed run the red light, and the police officer charged him, the defendant claimed to his insurance company that he had a green light. The defendant’s insurance company did not initially accept that the defendant was responsible for causing the accident, and in fact dragged their feet in conducting their investigation. Finally, they accepted liability in the accident about two months later.

Our client was taken by rescue squad directly from the scene to the emergency room where he was examined, and x-rays showed there were no fractures. Our client was treated and given instructions to stay out of work and take some medications he was prescribed. He was also told to follow up with his primary care physician if needed. Like a lot of people, our client didn’t like going to doctors and thought if he just gave it time, he would get well. Also, he didn’t have any transportation because his car was a total loss, he was in a financial bind because he was unable to work due to his injuries, and he also didn’t have any health insurance.

Because of the delay in the insurance company accepting liability for the accident, our client was unable to seek any further medical care. When the insurance company finally accepted liability and settled his claim for the damage to (loss of) his car, our client was able to purchase a replacement vehicle which enabled him to get to his doctor. When he saw his family doctor about 60 days after the accident, the doctor sent him for physical therapy for eight weeks. With that treatment and the medications, our client made a good recovery, and when he returned to his doctor, the doctor released him from further care for his injuries. (Our client wasn’t completely well, but had recovered to the point the doctor felt he would go on to a complete recovery in the next few weeks without any further treatment).

After we obtained all the medical records and bills and a verification of his time missed from work, we submitted our client’s case to the insurance carrier for settlement discussions. The adjuster’s first offer was only $700.00 over the hospital emergency room bill, and her justification was that because of the delay in treatment from the initial emergency room visit until 60 days later, she couldn’t consider any treatment except the emergency room visit. The adjuster then argued that our client had failed to “mitigate his damages” (2) by following up with his doctor sooner, and that because of the gap, our client’s treatment was prolonged. Therefore, the insurance company would not be responsible for the later treatment. I explained to the adjuster that the reason why the client had not sought further care was because of transportation and financial issues which were caused by the negligence of their insured and the insurance company’s own delay. I further pointed out that our client had indeed practiced “mitigation” of his damages by not going to his family doctor until it was clear that the medications, rest, and staying out of work were not going to allow him to recover.

After several months of negotiations, the claims adjuster finally agreed with my explanation, but only accepted the medical bills for only the first 4 weeks of physical therapy. When I asked why, the adjuster stated that for soft tissue injuries the standard time period for recovery was three months, and that was in the middle of the physical therapy. I pointed out to the adjuster that this “standard” (3) was at best an average, which meant that half the people with these injuries took longer. Furthermore, everybody wouldn’t be at the average unless we were all “cloned”, which is certainly not the case, and that every accident is different with varying forces of impact, different body positions, and many other variables that make recovery time highly variable and unpredictable. Negotiations are continuing, and we will probably have to file a lawsuit.

So the insurance company wants to unreasonably delay accepting responsibility in a case, and then wants to complain the effects of their delay mean they should pay less to the injured person in settlement. (4) Now if that doesn’t fit the expression of “wanting to have their cake and eat it too”, then “I’ll eat my hat.” Oops, oops.

About the Author: Bill Bootwright is a claims consultant in the Mechanicsville branch of the personal injury law firm of Allen and Allen. A former insurance adjuster, Bill works under the supervision of attorney Christopher A. Meyers to assist clients with their personal injury claims.

(2) The “duty to mitigate damages” means that a person must take reasonable steps to reduce their losses, which usually means for injuries to seek medical attention and then follow the doctor’s advice. However, a duty to mitigate damages is violated only to the extent that the failure causes the losses to be greater. See Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315 (1983). In this case, there was no indication that our client’s injuries lasted longer or were more expensive to treat due to the delay in treatment. Many doctors do not believe that physical therapy should be prescribed immediately after an injury, but instead there should be some healing of the acute injury before starting physical therapy.

(3) Even the most conservative doctors usually agree that these injuries may take up to a year to recover. Depending on age and pre-existing structural conditions, many people may take longer than that or even have permanent injuries.

(4) Fortunately, juries rarely accept these ridiculous arguments, and usually understand the “reasonable efforts” required to mitigate damages include waiting to see if soft tissue injuries are going to heal with time, rest and medications, before seeking additional treatment. But it’s unfortunate that a lawsuit and maybe trial is necessary to get a fair recovery for somebody who has been injured by someone else’s carelessness. And then the insurance companies complain the system doesn’t work because there are so many lawsuits!

Attorney Priscilla R. Woody

Author: Attorney Priscilla R. Woody

The insurance company wants to settle your case as soon as possible if you are injured and not represented by an attorney. Use of a “Scheduled Release” (1) is a tactic used by insurance companies to entice unrepresented claimants (people who are making a claim to the insurance company) to settle their claims quickly. When claimants are wary and unsure of the claim process and their future medical condition, the insurance representative appeases them with the “scheduled release” and insists that since future medical bills for the injury will be taken care, the claimant is protected against future unknown medical expenses.

Schedule release forms rarely contain a right to cancel the settlement (2) unless the insurance company attempts to settle your claim within 30 days after the accident happens. Under Virginia law, a schedule release or a full release must contain a “right of rescission” notice which states that you (the claimant) have three business days to cancel the settlement agreement by notifying the insurer in writing that you want to cancel the settlement and also returning any funds or check that you received. (3)

The General Assembly recognized that an injured person, for a variety of reasons, may be in a weaker bargaining position than the insurance company. This weaker position and lack of legal advice makes claimants more susceptible to fraud, coercion or undue influence by an insurance company. So for a very short time period, Va. Code § 8.01-425.1 safeguards claimants by providing them the opportunity to avoid a release executed within 30 days of an injury. So if you settle your case within 30 days of your injury, you can change your mind and rescind the settlement if you do so within three days of the settlement.

With a scheduled release, the up front payment is for “pain and suffering” and medical bills to that date. The scheduled release contains language which states the insurance company will reimburse future medical payments either “out of pocket” (whatever is not covered by your health insurance) or “medical bills incurred”. Do not rely on what the claim representative tells you the scheduled release says or means – read it yourself. The insurance company will pay the entire bill if the scheduled release contains “medical bills incurred” language. However, the insurance company will reimburse only your co-pay fees and deductible amounts you paid if the scheduled release contains “out of pocket” language.

The insurance representative (claims adjuster) guesses or estimates how much and how long you might receive medical treatment to determine when the scheduled time period ends, and puts that in the release. It could be 2 months or 5 months. They rarely set a schedule release for 6 months or more because they want to close their files as soon as possible.

You also need to check the language in the “scheduled release” for what the limit is on when you can submit bills. Some scheduled releases say you must submit bills within the set time period. Other scheduled releases say that you can submit bills for treatment you receive within the set time period, and that you have some period of time after that to submit the bills. Suppose you received treatment two and a half months after the date of signing, but you did not receive the bill until three and a half months after the date of signing. If your scheduled release said you had to submit the bill within three months, it would be too late to submit the bill by the time you received it. However, if your scheduled release said you could submit any bills for treatment received within three months after the signing, but had six months to submit it, then you could submit the bill you received and get it paid.

A typical example of a schedule release might provide the following: the insurance company will pay you $500.00 at the time the release is signed (“up front”) for your “pain and suffering”, and then agree to pay you up to $10,000.00 for any medical bills incurred and submitted within a 3 month period after the release is signed (or within three months of the date of injury). If you submit bills for treatment during that 3 month period, you will be reimbursed up to the maximum of $10,000.00. If you submit bills totaling $12,000 during the 3 month period, you will only receive the $10,000 maximum that you agreed to. However, if you do not submit any bills or the bills are submitted for treatment received after the 3 month period, you do not receive any money. You do not receive any of the unused portion of the $10,000 set aside at the end of the 3 month period.

The schedule release is a ploy for the insurance company to keep its money as long as it can by hoping that you forget to submit your bills to them, or you submit them late and they can deny payment to you as too late.

Avoid being susceptible to a weaker bargaining position because of fraud, coercion or undue influence by an insurance company. If you have not recovered from your injuries and are continuing medical treatment, you should not sign a scheduled release. Your doctor, not a claim representative, is better at determining your course of treatment – how long to treat, what type of treatment and the likely recovery period from your injuries. When presented with a scheduled release, do what is best for you and consult your doctor and an attorney. Any time you sign a scheduled release settlement, you are giving up the right to seek more compensation if your injuries take longer to heal or require more treatment than the maximum time period or amount that is allowed in the release. You take the risk that you are settling before the true extent of your injuries and losses is known, and that you are settling too cheap.

About the Author: Priscilla Woody is a Richmond personal injury attorney. She has worked both as a plaintiffs’ personal injury attorney and as defense counsel for a major insurance company. With this diverse background, Priscilla has a broad perspective and understanding of personal injury litigation and insurance law

Attorney Malcolm P. McConnell

Author: Attorney Malcolm P. McConnell

For years, some doctors and insurance companies have been telling us and our government that unless frivolous medical malpractice lawsuits are curtailed, and unless out-of-control verdicts are limited, doctors will be driven out of practice by high malpractice insurance premiums. Their efforts have been very successful in Virginia, where doctors enjoy the privileges of a special class, exempting them from being held responsible for the consequences of their negligence.

Throughout this conflict, your attorneys at The Allen Law Firm have worked hard to correctly inform the public and to continue to champion the old-fashioned value of personal responsibility for everyone, including negligent physicians. Now, a new study proves – yet again – that medical malpractice victims have been unfairly burdened for the benefit of insurance companies and not to help doctors.

Americans for Insurance Reform recently released a new study called True Risk: Medical Liability, Malpractice Insurance and Health Care. It is co-written by actuary J. Robert Hunter, Director of Insurance for the Consumer Federation of America, and former Federal Insurance Administrator and Texas Insurance Commissioner. The full study is available for download by clicking here.

Its major findings are:

• Medical malpractice premiums, inflation-adjusted, are nearly the lowest they have been in over 30 years.

• Medical malpractice claims, inflation-adjusted, are dropping significantly, down 45 percent since 2000.

• Medical malpractice premiums are less than one-half of one percent of the country’s overall health care costs; medical malpractice claims are a mere one-fifth of one percent of health care costs. In over 30 years, premiums and claims have never been greater than 1% of our nation’s health care costs.

• Medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years.

• The periodic premium spikes that doctors experience, as they did from 2002 until 2005, are not related to claims but to the economic cycle of insurers and to drops in investment income.

• Many states that have resisted enacting severe restrictions on injured patients’ legal rights experienced rate changes (i.e., premium increases or decreases for doctors) similar to those states that enacted severe restrictions on patients’ rights, i.e., there is no correlation between “tort reform” and insurance rates for doctors.

Attorney Malcolm P. McConnell

American Health Care, like American Justice, should be the envy of the world. We can attain this goal, but only if we base our decisions and our policies on facts. We must also be guided by traditional American values, to seek the best possible medical care for the greatest number of people, while zealously protecting the legal rights of all citizens, especially those who are innocent victims of wrongdoing. Some politicians want to limit the compensation of medical malpractice victims, wrongfully claiming that further injuring and victimizing innocents will improve health care for all of us and reduce costs. The attached Primer on Medical Negligence will give you the facts, gathered by independent and government agencies and reported by the American Association of Justice.

The following excerpt is taken from:

Medical Negligence: A Primer for the Nation’s Health Care Debate

By American Association for Justice

American Association for Justice

Executive Summary:

The Health Care Debate

Reforming the country’s health care system will be a major agenda item for the new Congress and administration. A large part of the debate will focus on the cost of health care and the driving factors behind it. In the past there has been much focus on restricting patients’ rights to hold negligent medical providers accountable, but little focus on reducing and eliminating preventable medical errors. This is partly due to the exploration of the medical negligence “crisis” by interest groups with agendas to push. A large body of research prompted by the crisis now indicates that may of the common perceptions about medical negligence are more than myths. This report analyzes the most recent empirical work on medical negligence in an attempt to come to a better understanding of the true challenges facing the country.

Preventable Medical Errors – The Sixth Biggest Killer in America

Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. If the Centers for Disease Control were to include preventable medical errors as a category, it would be the sixth leading cause of death in America. Yet, despite this, much of the medical negligence policy debate has revolved around indirect factors, such as doctors’ insurance premiums. Any discussion of medical negligence that does not involve preventable medical errors ignores the fundamental problem. Preventing medical errors will dramatically lower health care costs, reduce doctors’ insurance premiums, and protect the health and well-being of patients.

An Epidemic of Negligence, Not Negligence Lawsuits

Despite the shocking number of medical errors, few injured patients ever file a medical negligence lawsuit, and fewer still file frivolous claims. Research shows almost all medical negligence claims are meritorious. Claims where there was no error are rarely paid and researchers have concluded the reverse – errors which are never compensated – is a far bigger problem. The reality is, as University of Pennsylvania law professor Tom Baker puts it, “We have an epidemic of medical malpractice, not of malpractice lawsuits.”

Patients Want Accountability, Not Jackpots

Far from looking for a jackpot, research shows that patients file claims because they are seeking accountability. Too often patients injured by preventable medical errors are left in the dark about what happened to them: 70 percent of patients who experienced medical errors are not told by their doctors. Nearly one half of the nation’s doctors admit not reporting incompetence or medical errors. On the other hand, hospitals and health systems that have embraced full disclosure of medical errors to patients have found that the number of medical negligence claims and their related costs declines.

Better Patient Safety Is the Key to Lower Health Care Costs

The rising cost of health care just intensifies the need to focus on preventable medical errors and their huge associated costs. The savings from preventable medical errors run into billions of dollars. The savings from restricting patients’ access to justice, however, are negligible. Medical negligence costs amount to less than two percent of health care spending, and government economists estimate restricting all patients’ restitution would only lower health care costs by 0.5 percent or less. Preventative reforms that focus more on the medical industry rather than the legal system are a key part of any effort to making health care more affordable and accessible.

Medical Negligence “Reform” Just Fills Insurance Company Coffers

Limiting patients’ rights does nothing but fill the coffers of malpractice insurance companies. A large body of research has shown that the claims have remained stable for decades, while insurance companies have drastically raised physician premiums to build huge surpluses. State which have enacted caps on damages have seen hospitals and malpractice insurance companies make tens of millions but not cut the prices they charge patients and health insurers. Meanwhile the cost of health care continues to rise at near-record levels.

Doctors Are Not Fleeing

The most frequently echoed myth concerning medical negligence is the notion that doctors are fleeing states and retiring early, creating physician shortages. Anecdotal accounts of doctors fleeing states in response to increased insurance premiums have proved to be either unrepresentative isolated events, or flat out false. In fact, data from the American Medical Association (AMA) shows that physician numbers have been increasing across the board for many years. Not only are there record number of physicians in the U.S., the increase has also significantly outpaced population growth. There are now twice as many physicians per 100,000 population as there were with the AMA began tracking figures in the 1960s.

The number of physicians per 100,000 population is significantly higher in states without caps. This fact is supported by a large body of research that has found physician supply is not connected to insurance premiums. Researchers at the National Bureau of Economic Research (NBER) concluded, “The arguments that state tort reforms will avert local physician shortages or lead to greater efficiencies in care are not supported by our findings.”

The Civil Justice System Makes Us Safer

Every profession has its bad apples and physicians are no exception. Just six percent of doctors are responsible for nearly 60 percent of all medical negligence, and the civil justice system is the only effective means for holding them accountable. Other disciplinary mechanisms are woefully inadequate. State medical boards, for instance, are supposed to discipline doctors who consistently violate standards of care. Yet two-thirds of doctors who make 10 or more medical negligence payments are never disciplined at all. Hospitals are on the front lines of patient safety, yet nearly half of all U.S. hospitals have never reported a disciplinary action against one of their doctors since the National Practitioner Databank was created in 1990. Alternative compensation systems, such as health courts, propose eliminating or greatly sidelining disciplinary systems altogether.

The civil justice system holds doctors, hospitals and insurance companies accountable. It is this accountability that drives the development of patient safety systems that help prevent negligence before it occurs. Hospitals, health systems and even entire medical fields have reformed dangerous practices because of the civil justice system. Without accountability the civil justice system enforces, patient safety will suffer and health care costs will go up for everyone.”

To read the full report from the American Association for Justice, click here to download.

Source: “Medical Negligence – A Primer for the Nation’s Health Care Debate.” American Association for Justice; http://www.justice.org/cps/rde/xchg/justice/hs.xsl/2031.htm

Introduction authored by Malcolm P. McConnell. Mic heads the Medical Malpractice attorney team at the law firm of Allen & Allen.

Bree King, Claims Consultant

Attorney Melinda H. South

Recently I received a call from a young man who had signed a Release to settle his personal injury claim. He wanted to know if he had any recourse. It turns out he had signed a Release only three weeks after his motor vehicle accident even though he was still in pain. He thought he would get better, so he accepted an offer of $750 cash plus $10,000 to pay for doctor visits incurred in the following 60 days only. Unfortunately, his pain worsened, and his doctor referred him to physical therapy. The young man completed therapy over the next two months, but he was still in pain. His doctor then referred him for an MRI of his shoulder which showed a full tear of the tendon that could only be repaired by surgery. Since the 60 days had passed, his claim was forever closed because he had signed the Release too soon.

Lessons learned: Do not be too eager to settle your personal injury claim. Make sure you have recovered one hundred percent before you sign the Release. Your health will affect you for the rest of your life; allow enough time to pass to be sure of your recovery before you settle. Generally, if you are over 18 years old, the Statute of Limitations in Virginia is two years from the date of injury. By that time, you must either have settled your claim or have filed suit. (Note there are some exceptions, and in some cases you must give a specific written notice as soon as six months after the injury, so it’s best to consult with an attorney regarding your specific case).

Don’t let the insurance company pressure you into settling. It’s always worth getting some legal advice to “level the playing field” before settling your claim. All companies have goals, and don’t think the insurance companies are any different. They have goals to settle as quickly as possible and for as little as possible. An insurance adjuster is a trained professionals whose job is to meet those goals; you need a trained professional on your side, too, who is looking out for your interests instead of the insurance company’s interests. Some insurance companies actually offer incentives to adjusters who settle the most claims within the first 30 days after an accident.

Most of the time, after you sign the release, you are stuck. There are some ways to “break” a release, but these are difficult. For example, there are some legal requirements a release must meet, and if a release doesn’t conform to these requirements, then the release may not be valid. In 1999, the Virginia legislature passed a statute stating that when a person signs a release within 30 days of the accident, the person shall have 3 days after signing to revoke the release provided: (1) the signer was not represented by an attorney; (2) the revocation is made in writing to the person or persons seeking the release, their representative or insurance carrier; and (3) any money received is returned to the person or persons seeking the release. In 2000, the legislature added that release must contain a notice that the signer has a right to revoke the release. See Virginia Code 8.01-425.1. If a release is missing that notice, then the release may not be valid.

Additional facts that may cause a release to be invalid or “voidable” are (1) if the person who signed the release can prove that the release was signed under duress; (2) the release was signed due to fraud or a misrepresentation of a material fact; or (3) there was some mutual mistake or there was no “meeting of the minds” when it was signed. Obviously these are very technical matters, and proving them almost certainly requires the assistance of an attorney.

So, BE SURE – BE VERY SURE – before you sign a release that gives up your rights. Getting the release signed may be good for the insurance company, but may be bad for you.

About the Authors: Bree King is a claims consultant in the Richmond and Short Pump branches of Allen & Allen. A former insurance adjuster, she works under the supervision of Attorney Christopher Meyer helping clients settle their personal injury claims. Melinda South has been an attorney with Allen & Allen for over 20 years. She is known as a keen legal researcher and assists in the preparation of firm briefs and legal memoranda.

Attorney Malcolm P. McConnell

Article Summary by Attorney Malcolm P. McConnell

In Virginia, there is no justice for catastrophically injured victims of medical malpractice. Since 1976, their inalienable rights as American citizens to trial by jury and to equal justice under the law have been stripped from them for no better reason than to keep insurance companies profitable. Meanwhile, insurance companies charge higher and higher premiums to doctors, blaming victims’ lawyers and American citizens who sit on juries, hear evidence, and make careful decisions. Virginia’s “cap” on the amount of money a victim of medical malpractice can recover in a lawsuit guarantees that the most horribly injured victims will never be able to pay their bills. So, to protect the insurance companies, you, the American taxpayer, wind up paying the expenses of those people (through such government programs as Medicare and Medicaid). Something must change.

Damages cap now on tap

Virginia Lawyers Weekly

By Paul Fletcher
March 30, 2009

The 2009 General Assembly session is more or less over.

Only the April 8 veto session, in which the legislature considers bills vetoed or amended by the governor, remains.

The anticipated battle over an increase in the medical malpractice damages cap didn’t materialize in 2009, as legislators told groups representing trial lawyers, insurers, doctors and hospitals that they needed to devote their time and energy this year to the state’s budget and other money concerns.

Get ready to rumble.

Key leaders in the Assembly have told the interested parties that they have the opportunity to strike a deal, perhaps not unlike the agreement in 1999 that allowed the amount of the cap to increase gradually over a number of years.

But the message is clear: The Assembly expects an agreement.

Del. David B. Albo, R-Fairfax and chair of the House Courts of Justice committee, appeared at the Virginia Trial Lawyers Association meeting in mid-March. He said that it’s clear that “we can’t have a cap that stays the same.”

He said the trial lawyers, medical and insurance groups had been told to “meet this summer and solve this or we’ll solve it for you” next winter.

And Albo acknowledged that the problem is complex. “It’s like a Rubik’s cube,” he said.

As factors to be considered, Albo noted that hospitals require insurance limits that come in certain dollar-amount blocks, doctors can’t necessarily just increase costs and Medicaid/Medicare reimbursements can be skimpy.

Albo has noted before that an agreement must take all these factors into account to be taken seriously on Capitol Hill.
Meetings planned

VTLA Executive Director Jack L. Harris said, “We hear [the message] loud and clear.”

W. Scott Johnson, counsel for the Medical Society of Virginia, said that the interested parties already are trying to schedule discussions and set up a process for negotiating an agreement.

The first meeting likely will be in late May, and Johnson added that he hopes something can be accomplished by September, before the election season shifts into high gear.

Harris said the various parties had worked together before on different proposals to produce a result acceptable to all. “None of us goes into it with a preconceived outcome,” he said, noting that he expects the “talks will be wide-ranging.”

But he added, “I’m confident that we’re serious and they’re serious to do what it takes” to reach some agreement on the cap and related issues.

Health law update

The various arguments for and against a cap may be previewed in early May.

The Virginia Bar Association, in conjunction with the Health Law Section of the Virginia State Bar, will hold the 11th Annual Virginia Health Law Legislative Update in Richmond May 7.

Malcolm “Mic” McConnell of Allen, Allen, Allen & Allen, representing the plaintiff’s side, and Johnson, advocate for the defense, will debate “the prospects for medical malpractice reform” in 2010.

Johnson said he expects that their joint appearance will “lay out the possibilities and considerations” of an increase in the med-mal damages cap.

© Copyright 2009, by Virginia Lawyers Media, all rights reserved
Source: http://www.valawyersweekly.com/weeklyedition/2009/03/30/damages-cap-now-on-tap/

Egena Younger

Author: Egena T. Younger

I worked on the defense side for insurance companies for over 17 years. I experienced many years of investigating, evaluating, and negotiating automobile and commercial claims. From the first day of work, I was told to settle cases for a fair and reasonable amount. I was proud to represent the insurance company and its investors by checking every bill and report, to ensure that only what was necessary, related and reasonable, would be considered in evaluating an appropriate settlement offer. I gave a lot of consideration to the amount of property damage, the amount of the bills, the duration of the treatment, and how credible a witness our insured would make in defending his/her actions. I was never told to be unreasonable, but when I could negotiate a settlement for less than my evaluation, I felt proud of my accomplishment.

However, I was not really considering the injured claimant, and that the claimant was a real person with a life who had endured a lot after being injured in an accident. I failed to see that this was a person who was in pain, who often couldn’t work, who had to find some form of transportation, who had to go to doctors or therapists, sometimes over many months, in hope of finding someone to help them get better. I only considered what was on paper. My goal was to settle the case, timely and efficiently, with as little cost to the insurance company as I could. No, my paycheck did not change if I settled a case for a lower amount, but there was a sense of accomplishment, a sense that somehow, I won the battle. Why, I don’t know, but I’m sure many claims adjusters can relate to my experience.

I have since turned the page in my career and I now work to assist injured claimants. I am amazed at the different perception I’ve gotten from looking an individual in the eyes and hearing the sincerity in their voice. There are very few who are not struggling to handle this ordeal, and even fewer that are trying to get more than what is fair and reasonable. I meet with people every day who are going through the chaos of trying to deal with the consequences of an accident. I listen to people who have lost their jobs, because they were unable to work due to injuries resulting from an accident. I listen to people who are concerned because their doctor does not allow them to return to work because their injuries won’t heal properly if they do, but their employer won’t guarantee their position will be available when they are able to return. I listen to people who are trying to find a doctor that will treat them when they don’t have health insurance. I listen to people who are struggling to see the doctor or therapist while trying to maintain their household and raise their children. I meet with people who find themselves in financial debt, sometimes with bills sent to collection agencies, because the liability insurance company doesn’t pay until their treatment is complete and there is a final settlement.

I work hard to try and get cases to settlement as soon as I can, but changes with insurance companies have made this more difficult. In these difficult financial times, many insurance companies are downsizing, and each adjuster often has an overwhelming case load. As a result, insurance adjusters are taking much longer to settle cases, because often they are unable to review the file for two to four months, or even longer. Many insurance companies use computer systems to determine the value of a claim based on the CPT and Diagnosis Codes for medical treatment, which totally removes the compassion and understanding of individual circumstances and hardships a claimant might face.

Thinking back to when I first began working for an insurance company handling claims, I have to wonder if the insurance company considers that the injured person has been wronged and should be compensated fairly, and if there is still a goal to settle cases for what is fair and reasonable. Unfortunately, I think I know the answer.

About the Author: Egena Younger works in the Chesterfield, Virginia branch of the personal injury law firm of Allen & Allen. She is a former insurance adjuster and works with supervising Attorney Trent S. Kerns to assist clients in settling their personal injury claims.

Attorney Charles Littlepage Allen

By Attorney Charles L. Allen

“What is my case worth?” I am often asked this question by clients when I am first getting to know them. The simple answer is this; whatever a jury says it is worth.

Some people with personal injury claims are surprised to find out that they are not automatically entitled to a settlement from the insurance company. In fact, their only legal right is a trial to determine the amount of their recovery. The only way one can force an insurance company to pay is to successfully sue the person or company they insure. Cases involving very modest injuries are sometimes resolved by a judge in General District Court. However, more significant cases require Circuit Court trials which, in Virginia, allow for a jury of seven people to decide the case.

During the trial of a personal injury case in Circuit Court, a judge tells the jury what to consider when deciding the amount the injured person receives if the injured person wins. Typically, the jury is instructed to consider not only the injured person’s financial losses, which include medical expenses and lost earnings from time out of work, but also the injuries themselves and any pain and inconvenience they cause. I often explain to juries that inconvenience means how my client’s normal activities of daily living are limited or altered by the injuries. Many clients consider this to be their most significant loss, even greater than their medical expenses and lost wages.

Most personal injury cases I handle settle without a trial because I successfully negotiate with the insurance company to get a reasonable offer. However, the negotiations between the parties which ultimately lead to a settlement agreement are based upon what each side anticipates will happen at trial. Put another way, a settlement is fair if it is the same amount that a jury would award if it decided the case.

It may be no surprise that many people believe that successful trial lawyers who are experienced in the field of personal injury tend to get excellent settlements for their clients. There are three reasons for this. First, an experienced and knowledgeable trial attorney can develop the evidence in the case to make a persuasive presentation to the insurance company and, if necessary, to a jury. Second, an experienced trial attorney can reasonably predict what a jury might award, based on their experience with similar cases. Third, a successful trial lawyer has credibility with the insurance company with whom he or she negotiates because the insurance company probably will be aware of their “track record,” or reputation, for successfully handling personal injury cases in court.

Anyone with a personal injury claim should be aware that the insurance company with whom settlement negotiations will occur is a business. As such, the insurance company is looking out for its own financial best interests. An injured person who is not represented by an experienced trial attorney may be at a significant disadvantage trying to settle directly with the insurance company. The following example illustrates this point.

When I first began practicing personal injury law over 25 years ago, the trial attorney with whom I trained at this firm handled a case where our client hired us after first negotiating by himself with the insurance company in an unsuccessful attempt to settle his case. It was reported by this client that the insurance adjuster with whom he negotiated pronounced the claim was worth $6,000. However, this adjuster was willing to pay only $4,000 to settle, pointing out that if the injured claimant was represented by a lawyer he would have to pay a fee of one-third of the recovery to his attorney. Interestingly, this client never questioned or doubted the assertion by the insurance adjuster that his case was worth $6,000. What motivated the client to retain our firm was his desire to force the insurance company to pay the full $6,000 to settle his claim rather than only $4,000. Essentially, this client was prepared to receive $4,000 from his case and allow our law firm to take a $2,000 fee as long as the insurance company paid the entire $6,000 the adjuster acknowledged it owed. As it turns out, this case, in the hands of an experienced and skilled trial attorney, settled for $18,000 without a trial! Imagine how surprised our client was to receive nearly $12,000 from his case, after he had been led to believe by the insurance adjuster that his case was worth only $6,000. Why did this happen? Because both the insurance company adjuster and our trial lawyer knew and ultimately agreed the case would likely bring around $18,000 from a jury, and the insurance company knew our lawyer would file suit and take the case to trial unless they paid that amount to settle.

The lesson learned from this story is that an injured person’s best interests may not be fully protected unless they are represented by an experienced trial attorney. When an injured person is confronted with the choice of handling their claim themselves or retaining a lawyer to represent them, I suggest considering the example above. They should also ask themselves this question, “How can I possibly determine what my case is worth – and recover that amount – without the benefit of an experienced trial attorney?”

About the Author: Charles L. Allen is among the third generation of Allen family attorneys to have worked with the personal injury law firm Allen, Allen, Allen & Allen. Since joining the firm in 1983, Charles has had extensive experience handling various types of personal injury cases.