When Are You Responsible for What Someone Else Does with Your Car?

Every licensed driver in the country goes through the same rite of passage: learning how to drive. Whether you learned from your parents, learned through a school program, or used a private company, every state requires some degree of on-the-road driving experience before it will grant a prospective driver a license. Think about all those times you purchased or rented a car. The dealership checks your license, proof of insurance, and your credit. But once they sell you that car, it is unlikely, absent some ridiculous facts, that the dealership will be responsible for what happens to that car.

Now I want you to think about all those times you let someone else drive YOUR car. Did you check their credit? Did you ensure that they had their own insurance? Have you ever asked to see someone’s drivers license before letting them borrow your car? Have you ever checked someone else’s license before getting in the car with them?

Let’s say for the sake of argument that you are the type of person who requests to examine the drivers license and insurance documents of every driver—just because a person is licensed to drive does not necessarily mean that they are competent to actually operate a car.

So what happens when some driver you let use your car (or other instrumentality) , either through their inexperience, youth, or reckless tendency, causes injury to another through the use of a car (or other instrumentality)? Are you, as the owner, responsible? The answer to that question, like all great legal questions, is that it depends.

Negligent Entrustment Generally: A Brief Overview

Lets start at the top: Everybody has heard the word “negligence,” but what does that word mean in the legal world? Negligence is a type of civil penalty called a “tort”. In English, a “tort” is a civil crime that one person can bring against another to recovery, in most instances, money damages The purpose of having these types of civil penalties is to allow people to hold each other accountable for the choices they make that result in some damage, or injury. A common example of a tort action is a car crash.

In a car crash, a person makes a choice to do, or not do, something that results in two cars colliding. In other words: When cars crash, it happened because someone failed to follow the safety rules that protect all of us on the road. Tort law allows for the injured person to recover, financially, for the harm caused by the conduct of the at-fault party. In a car crash, that takes the form of economic damages, like medical bills or lost wages, and non-economic damages, like the injuries’ impact on a person’s ability to do the things they want to do, the things that make them who they are, things like travelling, working, playing with their children, or pursuing their dreams.

So now that we have “negligence” and “torts” defined, what is Negligent Entrustment, and why should you care? Negligent Entrustment entered the legal scene in Maryland in 1934 when the Maryland Court of Appeals decided to recognize Negligent Entrustment but rejected the definition of the concept given by the Second Restatement of Torts, which is a guide used by many states in forming their tort laws.^[1][2] The Restatement of Torts defines negligent entrustment as:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of physical harm to others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm… ^[3]

In 1989, the Maryland Court of Special Appeals articulated the elements required to establish negligent entrustment as: 1) the making available to another a chattel, 2) which the supplier knows or should have known the user is likely to use in a manner involving risk of physical harm to others; and 3) the supplier should expect to be endangered by its use. ^[4]

You may be asking yourself “Okay, great. But what the heck is a chattel?” I am so glad you asked. A “chattel” is any physical item; any piece of personal property other than real estate. With that in mind, you can see how negligent entrustment might apply to other situations outside of a standard car crash. For example:

Ex.1: A tour company regularly rents jet skis to non-English speakers. However, the company is only capable of providing safety instructions for using the jet skis in English. The tour company knows, or should know, that it is putting its “chattel” into the hands of people who will likely not understand how to operate the chattel, or jet skis, safely. The company is well-aware of the potential dangers that can result from operating a jet ski without proper instruction. Additionally, for the sake of this example, let’s assume that the safety instructor sees the riders operating the jet skis with reckless disregard for other people in the water, but does nothing other than yell to them to “cut it out.” If one of those jet ski-riders slams headlong into a fishing boat, it follows that the supplier of the jet ski (the tour company) should be held responsible for the damage that is caused. After all, they had the responsibility to make sure that their customers understood how to operate the jet skis safely.

Negligent Entrustment in Context: Focus on Relationships

A more relatable example might be when parents allow their child, a new and inexperienced driver, the use of the family automobile.

In order for Person A to be held liable under the theory of Negligent Entrustment as a result of the negligent conduct of Person 2, while Person 2 is driving Person A’s car, there needs to be some compelling circumstances that evidence Person A’ knowledge that Person 2 is a menace. For example:

Ex.2: Dad and Mom are teaching their 16-year-old daughter to drive now that the she has gotten her learner’s permit. Mom and Dad provide her with one of their cars, titled in Mom and Dad’s names, to practice driving while either Mom or Dad are in the car with her. They spend time discussing safe driving practices with her when she is a passenger in their cars. Unfortunately, during one of those practice sessions, the 16-year-old crashes the car into the rear of a car in front of them.

The Restatement specifically itemizes that the “inexperience” of a driver is one reason to find liability on the part of the supplier of the vehicle. However, the Maryland Courts have held that there is “no litmus test to determine whether a supplier had the requisite knowledge of an entrustee’s propensity to use the entrusted chattel in an improper or dangerous manner.”^[5]. This means that, without some specific factual circumstance, the court will not automatically attach liability to the owner of a vehicle under the theory of negligent entrustment.

So what kind of facts should we be looking for in a negligent entrustment claim? Let’s take a look at another example, this time involving employees of a trucking company.

Ex.3: Derrick was hired as a commercial truck driver for XYZ Corp. Derrick does NOT hold a Commercial Drivers License. At the time of Derrick’s hiring, the company did not have any procedures for checking whether newly-hired drivers held a CDL. As a result, Derrick was hired to drive a vehicle that he is not licensed to drive. On his first run, while driving without any kind of supervisor or trainer or a more experienced truck driver, Derrick loses control of his truck, causing a massive crash which resulted in multiple injuries to other drivers.

In the above instance, XYZ Corp supplied a chattel (the truck) to an individual who they should have known would be incapable of operating the truck safely. Derrick would not have caused a crash without a) XYZ Corp. handing over the keys to that 26,000 pound piece of machinery, and b) Derrick having no idea whatsoever how to handle a commercial vehicle of that size and weight.

The example above demonstrates the true goal of negligent entrustment: to hold people accountable for their own negligence. In an any relationship like the examples above, the insurance purchased by the owner of the vehicle will cover another driver that operates that vehicle with the permission and consent of the owner. This means that when someone crashes a car that you own after you have given them permission to drive it, it is YOUR insurance that is going to cover the damage regardless of whether or not you know they can drive safely.

So, what’s the point of negligent entrustment as a legal theory if the injured person has an avenue to recover the expense of their injury through the insurance of the person who owns the vehicle? The point is that both the driver and the owner of the car have acted negligently in these circumstances: the person driving the vehicle did so negligently, resulting in the crash, and the owner of the car acted negligently in entrusting the car to the at-fault driver in the first place. If you only claim negligence on the part of the driver the company, or owner of the vehicle, learns nothing. They fire the driver, tell themselves that this was a one-time occurrence, and proceed with business as usual. But when an injured party brings claims against the company for their driver’s negligence AND bring the claim for the company’s choices regarding their system of entrusting property to their employees, XYZ Corp. and all of the competitors in their industry get the message that they have a responsibility to the public to only allow qualified individuals to operate their heavy machinery.

The civil justice system is designed to provide relief to people who are injured by the conduct of others, to impose liability on those who are responsible, and to deter others in the community from committing similar harmful acts. The theory of negligent entrustment couples well with all three goals of the civil system in that it provides an additional way for the injured party to recover, it imposes liability on those responsible (not just the driver, but the guy who put keys in his hand), and deters this specific company, and other companies in their industry, from operating with the subpar hiring, training, and supervision practices that created the situation with XYZ Corp. in Ex3. above.

End Game: When Will I Be on the Hook for Handing over My Keys?

This answer to this question may be frustrating but the reality is that it depends. Compare the outcome in the example with XYZ Corp. to the example of parents allowing their child use of the family car to gain driving experience. with Ex2. Mom and Dad in Ex 2In the second example, Mom and Dad did nearly everything they could to ensure the safe driving of their 16-year-old. Before allowing her to drive the car, Mom and Dad made sure that she had obtained her learners permit and they discussed safe driving practices with her while they were driving and she was a passenger in their car. Ultimately, the question becomes “What else could they have done?” If the answer is “nothing,” then there is likely no basis to bring a claim for negligent entrustment.

Now look back at the example involving XYZ Corp. In that example, the company had nor process to ensure that newly-hired drivers were actually capable of handling the trucks that they would be required to drive. They hired Derrick without checking his credentials. They put him behind the wheel of a tractor trailer without verifying that he was actually qualified to drive the truck. They put him out on the road without any training in their system and procedures, and without someone there to ensure his maiden voyage went smoothly. Worst of all, as a result of their choice to put their profits over people, Derrick causes a massive crash using their truck.

Here is the bottom line:

• If a vehicle that you own is involved in a crash and the at-fault driver is someone who you allowed to use the car, your car insurance is on the hook for the damage caused by the driver, regardless of whether or not you “negligently entrusted” the car to them.
• When there is “negligent entrustment” between individuals, i.e., when you are aware, or should have been aware, that the person you let drive your car is a menace on the road, or will likely be, if given the right opportunity, negligent entrustment means that you will be named personally in any suit that results—and rightfully so!
• The best way for any vehicle owner to avoid liability under the negligent entrustment theory is to make sure that the people you allow to drive your car are safe drivers. That may include looking into their driving history on the internet, discussing the risks and rewards of safe driving with your soon-to-be teenage drivers or close friends who borrow your car, and to incentivize caution for anyone who will use your vehicles.
• Keeping the roads safe is everybody’s responsibility. Please share with us things you have done to teach your teen drivers how to drive safely, or share with us things that you learned from the person who taught you to drive.

[1] See Rounds v. Phillips, 166 Md. 151 (1934).
[2] The Restatement of Torts is a text written by the American Legal Institute to “restate” common legal principles in the area of Tort Law. There are restatements in various other areas of law as well.
[3] See Second Restatement of Torts §390 (1965).
[4] See Wright v. Neal, 79 Md. App. 20 (1989).
[5] See Morris v. Weddington, 74 MD App 650 (1988)

by Elizabeth Payne-Maddalena

Broken bones. Whiplash. Concussions and TBIs. Slipped discs. Busted knees. Juries expect these kinds of injuries from a car crash or a slip and fall. These injuries are easy to diagnose: there are diagnostic tests for them, like x-rays and MRIs. Doctors can press on a muscle and feel it spasm, look at a person and see them limp.

But a person isn’t just a collection of body parts. That’s not what makes you you. When I ask people what drives them in life, they tell me about their families, friends, faith, work, passions, hobbies and dreams. Those are the important little pieces of a person that makes up a soul.

To pursue these things, these passions that make up a person, people have to be physically able to do them. When someone gets hurt in a car crash, it’s like throwing a stone into a calm pond – the ripples spread out and touch each part of their life. The outgoing PTA mom who’s always willing to help out suddenly withdraws, in too much pain to paste a smile on her face. The young accomplished athlete feels like a failure, struggling with frustration, anger at the recovery process. The office rockstar misses work, meetings, falls behind.

Juries aren’t surprised to hear about these kinds of damages from car crash or fall victims. After all, jurors are people too, and this makes sense to them that injuries do more than just hurt. But sadly, some attorneys choose to ignore these impacts on their clients’ lives, even when the emotions become so great that their client needs professional help to recover. These injuries, some say, are too “hard” to prove. After all, there’s no MRI to show depression. X-rays don’t show driving anxiety.

However, these are crucial losses that you’ve suffered because of someone else’s negligent choices, and you deserve to be compensated for them. So today, I’d like to talk to you about how to make sure all of you gets the healing you need after you’ve been injured. This is an important topic, and I know there are lots of stigmas around “mental health issues” that we’ll get into. Most importantly, remember that there’s nothing wrong with asking for help when you need it.

What kind of emotional or psychological injuries do you normally see in your cases?

First of all, I try not to call them “psychological injuries” because there’s a lot of baggage with that term, and I don’t want clients to feel judged or uncomfortable.

The situation I described above is very common with my clients. Injuries suck. I’ve had my fair share of them, and the healing process can be a long and arduous road. The pain alone can cause someone to want to isolate themselves or feel weak, humiliated. Clients may lash out unintentionally when they’re hurting, affecting their relationships with others. But some feel robbed when they miss out on important life events, or even everyday life events. When the injuries are life-changing, its a higher chance that they will never truly, fully recover. This makes some people very depressed. Some people get angry, as they did nothing wrong – after all, it was the defendant who made the choice that caused them to get hurt. Sometimes, these feelings of depression, anger, or anxiety become a festering wound that drags a person down.

Other times, the event itself may trigger anxiety or post-traumatic stress for a client. For example, imagine you’re sitting at a red traffic light, minding your own business when BAM! A drunk driver rear-ends you at full speed. You have to be taken to the ER from the scene by an ambulance. It’s out of nowhere. Next time you’re sitting at a red light, how do you think you’re feeling? Nervous? Anxious? You bet. Your sense of safety’s been completely shattered, and now, you trust no one. Many people confess to feeling like they’re just waiting for the next negligent driver to hit them – and they’re scared that the next one will be a lot worse. For a majority of people, this driving anxiety goes away after a few weeks. But for some, it clutches into their brain and refuses to let go. When those people get behind the wheel, they may start to feel their heart racing or have flashbacks. Nightmares might plague them. They avoid driving. When it starts to interfere with all the things you have to get done, that’s when you need to ask for help.

For assault and abuse survivors, the trauma surrounding the event itself leaves long lasting scars that require counseling to help them overcome their fears. Getting a client into immediate supportive treatment is necessary in these kinds of cases in order to help give the client the support they need to fully recover from their abusers.

What should I be doing to protect myself?

Again, each client is different – no two people are alike. Some people may recover without needing any professional help, but others will. It’s important that you’re talking to your medical doctors, physical therapists, and your attorney about your frustrations, anger and anxiety, so that way, if you do need help it is well documented. This means you’ll have an easier time getting treatment if you need it. This also helps build your case by having a third party that can back up your testimony if the case goes into litigation.

What are some of the major roadblocks that keep clients from getting treatment?

Stigma

Let’s face it: the US has a major problem when it comes to our views on mental health issues. The Association for Psychological Science cites this stigma as one of the main reasons why people don’t get or complete mental health treatment. Getting counseling or therapy is seen as something “crazy” or for people with serious psychological disorders. Some see it as an admission of weakness.

The simple truth is that the people I know who are willing to seek professional help when they need it are the strongest people I know. They’re anything but crazy. In fact, they’re some of the sanest people I’ve met. Think of it this way: you have a brain injury, you see a neurologist. But if your psyche is injured, you’re not gonna go see a doctor to heal that?

Insurance and money

The next big hurdle is finding a way to pay for treatment. Under the ACA, insurance companies must cover mental health treatments. This is great news, and something that hopefully Congress sees and keeps this requirement.

But many providers are out of network, meaning there are high copays or deductibles. Finding in-network providers can be time consuming, or worse, involve long waitlists. But there may be solutions you and your attorney can come up with if you ask and explain the issue with them. Let them be your ally! After all, we can’t help you if you don’t tell us what roadblocks you’re encountering.

Jagged little pill

With apologies to Alanis, medication is another big issue that makes many people shirk away from seeking help when they need it. There’s an additional stigma around taking psychiatric medications that’s pervasive. Some people fear they’ll become zombies or someone different on medication. Others worry that they’ll experience significant side effects. Still others fear addiction or dependency. But these feelings, while valid, shouldn’t stop you from getting the treatment you need.

First of all, medication is not always a requirement for treatment. It’s a tool that can be used as part of your treatment, yes, but it’s not a required one. Your mental health professional should be willing to work with you if you’re uncomfortable taking medication, and you should talk to them about your fears and concerns. You may also want to focus on treating with Licensed Professional Counselors (LPCs), Psychologists, and/or Licensed Social Workers (LSWs). These providers typically focus more on non-medication therapies versus psychiatrists. However, psychiatrists also offer therapies and methods that couple well with medication, or fall outside of it, and can be just as beneficial. They can be especially helpful if you do end up needing prescriptions to help manage your symptoms while you’re in treatment.

Additionally, your treating provider should work with you to find a medication that doesn’t result in significant or massive side effects or turn you into a zombie. While it may take a couple of adjustments or trying different drugs, your provider will work with you to find something that manages your symptoms while allowing you to still be you.

Finally, even if your provider recommends prescription medications as one of the tools to help you recover from your emotional injury, that doesn’t mean you’ll have to take that medication forever. It’s just like taking a course of antibiotics for a sinus infection: after you’re cured and you’ve completed your dose, you don’t keep taking them forever. Many people end up tapering off their medications completely once their treatment has resolved. Keep in mind that you should not just quit taking your medications, and stopping any psychiatric medications should be done at the recommendation and under the supervision of your treating provider.

Finding the right provider

The last big struggle I hear about when it comes to getting treatment for emotional injuries is finding the right provider. This boils down to two categories: experience/specialty and fit.

With experience and/or specialty, I mean finding a provider who’s treated people with the same trauma as you, and/or offers the kind of treatment you want. You don’t want to go to a counselor or therapist for driving anxiety whose never treated someone with post-crash driving fears before! When you’re calling around, ask your potential doctors, counselors or therapists if they’ve ever treated someone in your situation before. You should also ask what therapies they offer and prefer (including any concerns over medication, as I discussed above). If you’re not familiar with the therapies they offer, Google them! Google can be very helpful with explaining what therapies benefit what symptoms the best. For example:

• EMDR is especially helpful for people suffering from Post-Traumatic Stress Disorder (PTSD)
• Cognitive Behavior Therapy (CBT) can be helpful for people suffering panic attacks or anxiety disorders

By fit, I’m talking about finding a provider that you’re comfortable with. This is incredibly important when it comes to any medical provider that you’re seeing, case-related or not, but even more so for mental health treatment. You’re trusting and talking to someone about the thing that most people struggle opening up about: your feelings, your thoughts, your emotions, your fears. If you don’t feel comfortable (or like you can get comfortable) with a potential provider, your treatment won’t be as successful as it’ll be hard to open up. It’s not a bad thing, and a provider won’t take it personally. (As a lawyer, I tell potential clients all the time that they should feel comfortable talking to me, and if not, they shouldn’t choose me to be their attorney for the same reason).

Remember This

No matter what, people deserve to be compensated for the emotional damages they’ve incurred as a result of someone else’s negligent choices. Even if they don’t end up needing psychological treatment, as those damages still matter. Make sure you’re talking to your treating providers in order to build a record of these damages and ensure you get the treatment you need. Find an attorney who cares about all of you, not just your bones, muscles or organs. And don’t let the stigmas keep you from being compensated for all of your injuries. After all, it’s what you’re entitled to and what you deserve.

In my last blog post, I discussed recent developments in the workers’ compensation law in the District of Columbia with regard to injured workers being paid based upon wages lost at one or more jobs as a result of a work injury. This is referred to as “wage stacking.” Let’s now delve a little more deeply into how lost wages are calculated and how injured workers are paid when they are recovering from and living with their injuries.

A Brief Review on Wage Stacking

To briefly refresh, I believe that one of the most important benefits, aside from medical care and treatment designed to get you better and back to work, are the wage replacement benefits you are entitled to receive while you recover from your injuries and are unable to work. These are known as temporary total disability benefits.

In the District of Columbia, where I focus the majority of my practice, injured workers are entitled to “stack” their wages for purposes of the calculation of workers’ compensation benefits. This means that injured workers who are working at two or more jobs at the time of their injury are entitled to be paid based upon lost wages from both jobs. The law makes no distinction in terms of how much injured workers are entitled to be paid depending on which of their two jobs they were performing when injured. In other words, even if someone is injured while working at a job that pays $100.00 per week, and the injury prevents them from also working at their job that pays you $1,000.00 per week, they can still “stack” their wages.

Unfortunately, this is a key area of the law where Maryland and Virginia are lacking. In Maryland, injured workers cannot stack their wages at all. So, if someone is injured while working at their part-time job and misses time from a much more lucrative full-time job, the state of Maryland has determined that they are out of luck and just have to deal with the very limited income replacement benefits. Virginia has essentially a “middle ground” law between D.C. and Maryland. In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured.

This, of course, can lead to disastrous outcomes such as being unable to feed their family, being evicted or foreclosed upon, or any other of the other travesties detailed in a 2015 article by National Public Radio.

How are Temporary Total Disability Benefits Calculated?

In all three jurisdictions, temporary total disability benefits are paid at 2/3 of an injured worker’s average weekly wage (the resulting amount of the payment is referred to as a “compensation rate”). Although the average weekly wage has been calculated using gross (pre-tax) wages, and although the compensation rate is not taxed, this still usually leaves injured workers in the hole while they are out of work and recovering from their injuries. I say this because 66 2/3% of your gross wages is generally less than the amount of take-home wages even if a person is taxed by the federal government, state and local governments, and makes some contribution for health insurance. Insurance companies and the drafters of the workers’ compensation laws would have us believe that this should somehow “incentivize” injured workers to want to return to work as quickly as possible, but I have only ever seen it have negative consequences when my clients have attempted to return to work earlier than their doctors would permit only because they need to earn more money to keep up with their financial obligations. In short, I think it is a travesty of justice to only pay injured workers 2/3 of their gross wages. This figure should be closer to, if not in excess of, 73% in our region based upon the average percentage of income paid as federal tax (21%) and the average state and local taxes paid by residents of Virginia and Maryland (5.63% and 6% respectively).

Generally speaking, an injured worker’s average weekly wage is calculated based upon his or her gross earnings within a set timeframe immediately preceding the work injury. A major difference in the three jurisdictions, however, is the number of weeks that are factored into the calculation of an injured worker’s average weekly wage. Virginia allows for the calculation of average weekly wage based upon the earnings in the entire year prior to the work injury; the District of Columbia allows for the calculation to be based upon the half year prior; and Maryland allows for the calculation to be based upon the 14 weeks prior to the work injury.

As always, however, there are numerous exceptions to every rule. For example, many people work in seasonal employment. This can include those who work in retail during the holiday season, those who work in landscaping or other outdoor service jobs, employees at the major sports arenas and stadiums in the area, and even teachers who choose to get paid on a nine month cycle as opposed to a 12 month cycle. In these situations, the injured employees are not prejudiced by the fact that they did not have steady earnings during the entirety of the time period generally used for calculation of their average weekly wage.

Similarly, if an injured worker had recently returned to work from a prior injury or had recently started working at the job, then only the wages as of the date of return to work or the beginning of employment will be considered. It is also long-settled law that weeks in which the injured worker did not work will be excluded from the calculation. See United Parcel Service v. D.C. Department of Employment Services, 834 A.2d 868 (D.C. 2003). The same principle would, of course, apply to any vacations taken during the relevant time period.

What counts as wages?

Perhaps the most interesting aspect of the average weekly wage calculation, at least to me, is what is included in the definition of “wages.” I have seen this arise in my practice in multiple, very interesting instances. For better or for worse, the District of Columbia has determined that, in certain instances, not all employee benefits are considered to be wages. I represented a union member who was paid, under his union’s collective-bargaining agreement, both regular hourly wages as well as employer-paid contributions into his retirement plan and health savings account. All of these things were paid for out of the same chunk of money (and I liken this to a non-union employee paying a portion of their wages into a 401(k)), but the District of Columbia courts determined that only the money paid as actual wages to my client would get included in the calculation. Unfortunately, this area of the law is pretty well settled under both the District of Columbia Workers’ Compensation Act as well as its predecessor (which also happens to be one of the federal workers’ compensation laws), the Longshore and Harbor Workers’ Compensation Act.

Other injured workers who I routinely see fall victim to the District of Columbia law regarding the definition of wages are those who work in employment where they are paid both wages and tips (generally, these people are waiters or waitresses). The D.C. workers’ compensation law only allows for the inclusion of tips only if they have been declared for tax purposes. D.C. Code § 32-1511(b). Unfortunately, as most of you who have worked in the service industry will know, this is rarely done, or people generally under value the amount of compensation they are paid in tips. This can lead to financially ruinous results when one of these employees is injured on the job and only paid based upon his or her less-than-minimum-wage hourly wages and not the tips that form the bulk of that person’s take-home pay.

One other interesting aspect of the law regarding the calculation of average weekly wages comes from the same subsection as the language regarding the inclusion or exclusion of tips. That subsection also allows for the inclusion of the “reasonable value for board and lodging received from the employer.” D.C. Code § 32-1511(b). Maryland is actually a bit broader and allows for the inclusion of “ the reasonable value of housing, lodging, meals, rent, and other similar advantages that the covered employee received from the employer.” Md. Code, Lab. & Empl. Section 9-602(a)(2)(ii). This section of the law generally applies to those people who live at their place of employment. For example, I have seen this play out for domestic workers, such as butlers and chefs, as well as farmhands working on the chicken farms on the Eastern Shore of Maryland. Although it may seem a little bit strange to include these types of things with in the definition of wages, it makes sense when looked at through the lens of the benefit to the employer: in all of these situations, the employer is deriving a benefit from having its employees housed either on its premises or in very close proximity thereto. In return, when an employee in this type of employment is injured, the law recognizes that the employee is then entitled to transference of the benefit that their employer was getting in the form of it being included in their weekly workers’ compensation checks.

The lesson to be learned from all of this is this: Your “wages” when you are injured at work may not always just include what you take home from the specific job in which you were working at the time of the injury. It is important to hire an attorney who is experienced in workers’ compensation and who can properly advise you and advocate on your behalf to ensure that you are not suffering from a substantial loss of income during a very difficult time in your life.

If you read my first blog, you will recall that two things I am very fond of are pop culture and stories. One of my favorite all-time pop culture phenomena is the acclaimed HBO original series, The Sopranos. I think I have watched the series in its entirety at least three or four times. Anyone who is familiar with the series knows, Tony Soprano, the anti-hero lead character and mob boss extraordinaire spends a lot of time in therapy session with his psychiatrist following panic attacks and bouts of anxiety. No doubt, those symptoms are related, at least in part, to his Tony’s work as a career criminal, but that’s not why I bring up the reference.

I often find myself thinking about a bit of dialogue between Tony and his psychiatrist, Dr. Melfi in the very first episode when I advise my clients about how to communicate with their doctor following a life changing work injury. Struggling with the fact that he has to open up to his doctor in order to get to the root of his problems in therapy Tony says the following:

Tony Soprano: Let me tell ya something. Nowadays, everybody’s gotta go to shrinks, and counselors, and go on “Sally Jessy Raphael” and talk about their problems. What happened to Gary Cooper? The strong, silent type. That was an American. He wasn’t in touch with his feelings. He just did what he had to do. See, what they didn’t know was once they got Gary Cooper in touch with his feelings that they wouldn’t be able to shut him up! And then it’s dysfunction this, and dysfunction that, and dysfunction vaffancul! The Sopranos Pilot (season 1, episode 1).

You may find yourself asking how does this reference apply at all to communicating with your medical provider in a workers’ compensation setting? The answer is quite simple, do not be Gary Cooper, John Wayne, or Tony Soprano when visiting with your doctor after a work injury. Put another way, to be the strong and silent type could be the kiss of death when it comes to making sure all of your rights are protected, including your entitlement to causally related medical care and treatment and money benefits.

In my first blog post I stressed the importance of telling the truth after a work injury and how that honesty has two components, one obvious, and one less so. I want to focus on this honesty and truthfulness in the context of communicating with the doctor. The obvious component is to not lie or make anything up. I’m less concerned about the obvious element. It’s easy, it speaks for itself, and frankly, I do not want to represent anyone in a legal matter that is not an honest and credible person.

I’m more interested in the less obvious component, the “do not hold anything back” side of telling the truth. I always tell clients at our very first meeting that the doctor is not a mind reader and is only going to address the complaints that the patient makes when taking a history. Not holding anything back means paying attention to your body and documenting all symptoms and complaints, in all affected body parts following a work injury. In this scenario, all means all, including all symptoms and complaints whether they are a direct result or a consequence of the work injury.

Telling the doctor all of your symptoms and complaints, means telling every doctor you see, whether your treating doctor, or the doctor the insurance company sends you to for an evaluation, all of the symptoms and complaints and when you experience them. I tell clients all the time, you need to make sure the doctor understands what you feel and go through on your worst day, not your best day. Sometimes symptoms can wax and wane, but the bottom-line is that an injured worker is not seeking treatment for how they feel on their best day, its about how they feel at their worst. This allows the doctor to get an accurate picture of the condition or conditions the injured person is experiencing and develop a treatment plan to get the person feeling better. That’s the ultimate goal after all!

Consequential Injuries

A consequential injury is an injury or medical condition sustained as a result of an employment related injury or illness. Often times, when a person has an injury on one side of their body, like knee or ankle injury, or a shoulder or elbow injury, they overcompensate for the loss of use the injured side of their body and put more stress, wear and tear on the opposite, non-injured side. Consequential injuries can develop due to this overcompensation. It’s very important to not go all Gary Cooper or Tony Soprano when this situation occurs. I urge clients to make these complaints to the doctor immediately when they begin to have these problems. I also ask clients to make certain their doctor is actually documenting the complaints in the medical reports and making treatment recommendations based on the complaints. This is especially important in the workers’ compensation setting because the insurance company may choose to deny authorization to treatment for consequential injuries, so the sooner the complaints are documented by the treating physician, the easier it tends to be for consequential injuries it is to be accepted. Whether that’s on a voluntary basis by the insurance carrier, or through the worker’s compensation court system.

Head Injuries

Sometimes folks who experience severe injuries to their bodies also strike or injure their head as a result of the work accident. Unfortunately, these conditions can go unnoticed or undiagnosed at first, especially if there is the need for emergency triage or treatment for a bodily injury immediately after the incident. Injured workers find themselves experiencing post-concussion symptoms, or neurological problems as they seek treatment with their primary care physician or an orthopedic specialist following the injury. The rule against being the strong silent type applies in this situation as well. If you find yourself if this predicament it is very important to make all of these symptoms and complaints related to a head injury to your doctor so that he or she documents them in the reports and provides a referral to a neurologist or other specialist with the skills to treat the specific problem. The same rationale as outlined above in consequential injuries about getting approval for the requested consult and treatment from the insurance company or through the court system.

Psychological Injuries

A life changing work injury can impact a person’s life many ways, including leading to feelings of anxiety, mental anguish, and depression. These conditions are compensable and if you experiencing psychological complications following a workplace injury you have the ability to seek treatment at the expense of the workers’ compensation insurance carrier. If you find yourself in this situation, do not hold anything back, make the complaints to your treating physician, get a referral for a psychological consultation, get it submitted to the insurance carrier for approval and get yourself into treatment and on the road to feeling better.

In response to Tony Soprano’s question, about whatever happened to Gary Cooper? The strong silent type. My hope is that by properly educating injured workers about their rights and how to communicate with their doctors as a means to protect those rights we can eradicate the strong silent type mentality from the culture of workers’ compensation. In doing so, it should help the injured worker get faster access to reasonable, necessary, and causally related medical treatment for any and all condition related to their work injury and make it harder for the insurance companies to deny honest hard working people access such treatment.

Thousands of men and women are injured at work every day. Different state and federal laws can apply to the rights of these injured workers depending on several factors. Factors that determine which set of laws applies to a work injury include the place of injury, the location of the employer, the nature of the work, where the contract for employment was made and what government entity has an interest in protecting the health and sustainability of a particular work force. The overarching purpose of each state or government having workers’ compensation laws should be the same (See this post). However, there can be major differences in each state’s laws. This is because each state is sovereign, meaning it has its own laws that apply within its borders, and there can be significant differences in the laws as they apply to each work injury depending on how the legislature writes the laws. There are some groups of workers who fall under the jurisdiction of federal laws, the Longshore and Harbor Workers’ Compensation Act, where the United States has a specific, Constitution-based interest in protecting the class of workers. No matter what state or country the worker is from, workers covered under the Longshore and Harbor Workers’ Compensation Act are entitled to uniformly applied federal law under the oversight of the United States Department of Labor.

Explosions, fires, equipment failures, falls and other mental and physical traumas are just a few common accidents that cause serious injuries on the job. Even the most minor injury suffered on the water or on a military base can quickly lead to a devastating and lasting condition. Many times, these conditions are not covered by state workers’ compensation laws. Sometimes, such injuries can be covered under state law as well as under federal law. If you are injured in a work accident, how do you know where to file your claim and what jurisdiction’s laws best support your family and protect your family’s future? This blog will teach you basic procedures of some federal workers’ compensation claims and will advise individuals navigating their rights to seek an attorney who will help best protect an injured workers’ rights no matter what law applies to their case.

What laws protect longshore and maritime workers?

Federally mandated laws established to protect workers injured while working on waterways, overseas or on military bases include:

• The Jones Act ­– Protects workers injured on ships or vessels due to the negligence of a ship owner, captain or fellow employee. Under the law, injured workers can recover medical care and cost of living expenses.
• The Longshore and Harbor Workers’ Compensation Act – Protects land-based maritime workers, such as vessel repairmen or cargo loaders, who suffer injuries or illnesses related to their work. The Longshore and Harbor Workers’ Compensation Act will cover workers injured while loading, unloading, repairing or making maritime vessels. The United States government has a basis in the Constitution to oversee admiralty injuries and to uniformly protect the work force that is so important to the national economy through commerce and defense. See United States Constitution, Article III, Section2 and Article 1, Section 8. The Longshore and Harbor Workers’ Compensation Act provides compensation for medical care and wage loss/disability benefits.
• The Defense Base Act – Provides protection to employees working outside the United States on United States military bases or under a contract with the United States government for public works or for national defense. Examples of such workers are linguists, security/police forces, cultural advisors, translators, construction workers, truck drivers, engineers, and project managers. The United States government has an interest in protecting this unique work force who are protecting the interests of the United States overseas. The Defense Base Act is an extension of the Longshore and Harbor Workers’ Compensation Act and applies the same provisions to the workers it protects. The Defense Base Act provides compensation for medical care and wage loss/disability benefits.
• The Non-Appropriated Funds and Instrumentalities Act – Protects civilian employees providing services to the U.S. Armed Forces, including those who work for Army and Air Force Exchange Services, Army and Air Force Motion Picture Services, on-shore Navy Ship Stores, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges and other agencies of the United States under the jurisdiction of the Armed Forces conducted for the comfort, pleasure, contentment and mental and physical improvement of personnel of the Armed Forces. See https://www.dol.gov/owcp/dlhwc/nfia.htm. The Non-Appropriated Funds and Instrumentalities Act is an extension of the Longshore and Harbor Workers’ Compensation Act and applies the same provisions to the workers it protects. The Non-Appropriated Funds and Instrumentalities Act provides compensation for medical care and wage/loss disability benefits. 

Is there a time restriction for making a claim?

Yes. In general, the time you have to file a legal claim after a work injury is limited. You must notify your employer of the work injury as soon as possible, preferably in writing, after a work injury. The time for filing an actual claim within the jurisdiction under which an injury is covered is limited. Also known as the statute of limitations, the time limitation to file a claim can be as short as one to three years from the date of injury. Specifically, under the Longshore and Harbor Workers’ Compensation Act and the extensions of the Act described above, the time for filing a claim is within one year after sustaining a work injury or from the last day of payment of benefits, whichever is later. This statute can vary depending on the nature of your case. If you wait to file a legal claim until the statute of limitations has expired, you may lose your rights to compensation. That’s why it’s important to seek legal help as soon as you can after a work injury. An attorney at ChasenBoscolo is ready to help you protect your rights and meet any time requirements for making a claim under the laws of whatever jurisdiction best protects your rights.

Why do you need an attorney?

 Without the help of an experienced attorney, you may not receive the full amount of compensation you are entitled to under the law. Insurance companies may think they can take advantage of you and offer you less money than you deserve for your injuries and lost wages. Insurance companies try to save money by steering an injured worked toward a jurisdiction with less injured worker protections. This is wrong. An experienced attorney knows how to preserve your claim for workers’ compensation benefits in a timely manner in the jurisdictions that cover your claim, and they can pursue your claim under the laws most favorable to sustaining and protecting your and your family’s present and future. Like much of life, the answers to these questions usually are not crystal clear. An attorney at ChasenBoscolo is ready to help. We will take the time to talk with you about your goals, find out how we may be able to fight for you and put your best interests first in determining how to advance your case. Whether you were injured on an unseaworthy vessel or while loading cargo onshore, if you are a seaman, longshoreman, harbor worker or military contractor and were injured on the job or due to someone else’s negligence, you will benefit from experienced legal help.

If you’ve made it to this page, its probably because you, a family member or friend sustained injuries resulting from the negligence of a company or individual. According to the National Safety Council, motor vehicle crashes in the United States during 2017 resulted in 40,100 deaths and 4,500,000 seriously injured people. Those numbers are mindboggling—110 people die each day in a motor vehicle collision and more than 12,328 are injured daily. For teenagers, car crashes are the number one cause of death. Tragically, you have a 1 in 102 odds of dying in a car crash during your lifetime. Being struck as a pedestrian is 1 in 561 and for those riding motorcycles, the odds are 1 in 846. Slip and fall statistics are also alarming. You have a 1 in 119 odds of dying as a result of a fall. The above numbers are ridiculously high, and you can see the real life and close-to-home tragic consequences of such events.

Negligence is frequently the result of somebody’s violation of the safety rules which are designed to protect us and keep us safe. Some sort of distraction, lack of proper attention, inadequate training, not following protocols, taking short cuts and otherwise not doing what a reasonable person would do creates the negligent conduct. When that safety violation occurs, the negligent party has an obligation to make things right. The question is—what is right?

How much money is right? What factors are considered in valuing an injury claim?

Although some might think it unseemly to value injury claims in dollars, that is the only method our system of justice allows. The United States’ system of justice derived from the common law system developed in England. Although many changes and modifications were made following our Declaration of Independence in 1776, we still hold to the judicial system that requires a negligent wrongdoer to fully compensate an injured party for his or her losses. Failure to do so is a failure to do justice. We are very fortunate to have the system we do because a justice system used in other parts of the world dates back to around 1754 B.C. Known for Babylonia King Hammurabi, its called the Code of Hammurabi. You are likely familiar with this justice system based upon retribution, an eye for an eye and tooth for a tooth.

So, returning to your inquiry, what is a case worth? Numerous factors dramatically affect the value of an injury claim. Many will be discussed below, but some common factors include the defendant’s conduct, the injuries sustained, medical care, lost wages, permanent injury and where the injury occurred. Although you may have heard from a friend or family member about a formula for determining case value, that system or process really has not existed for decades. Insurance companies today use computers to determine case value. Experienced injury attorneys are aware of this and have the tools and resources to fight for fair compensation.

Are there any liability issues?

The first step in assessing proper case value is resolving any and all liability issues. Liability simply means who is at fault. Is the at fault party completely at fault, or only partially at fault? Is fault disputed? Depending on the state where the negligence occurred, fault is crucial. The District of Columbia, Maryland and Virginia are three of the five jurisdictions in the United States that follow the concept of contributory negligence. In most states, comparative negligence is the standard. Why is that important to case value? In contributory negligence states, if the injured person is even 1% at fault then he or she is not entitled to any money—nothing! A harsh result, but that’s the legal standard in contributory negligence jurisdictions. In most of the US, the standard is one of comparative negligence. In such states, a comparison is made between the negligence of the parties and the injured person’s money award is reduced by his/her comparative negligence. So in a contributory negligence jurisdiction, if the injured party is found 1% at fault for a car crash, there would be no recovery. However, if with same set of facts the car crash occurred in a comparative jurisdiction (Pennsylvania) and the jury awarded $100,000.00 to the injured person, the award would be reduced by the injured person’s negligence (1% = $1,000.00), so the award would total $99,000.00.

Click here to learn more about how contributory negligence effects slip and fall cases.

How does an insurance company evaluate the value of your case?

In the past, an insurance company adjuster would use his/her common sense, education, training and experience to determine case value. However, in the mid 1990s, the claims departments of most large insurance companies underwent a radical transformation based upon suggestions by McKinsey Consulting. The suggestions were designed to reduce the amounts insurance companies were paying to injury victims, thereby dramatically increasing profits. So currently, most insurance companies use computer software based upon potentially hundreds to thousands of different data points to determine case value. One such program is called Colossus, which was originally created by Computer Science Corporation and leased to hundreds of insurance companies. The human element in reviewing claims has been significantly reduced, and at times, all but eliminated. The insurance industry cost savings have been huge while payments to injury victims have been dramatically decreased.

So, if an insurance company is going to use computer software to reduce the value of a case, what can be done about it? First, it’s important to retain a law firm experienced in handling claims with insurance companies using the computer software. Accurate documentation of injuries, type of medical care, body parts, loss of enjoyment, medical procedure codes, supporting records, medical billing codes, permanent injuries, etc. are important when preparing settlement demands that will be assessed by the computer.

Second, it’s critical to retain a lawyer and a law firm with a well-earned reputation for going to court. Insurance companies track and record which law firms fight for their clients by filing suit and which lawyers are more likely to just take the money and run. If your lawyer has a reputation for settling, you will get less of an offer than another lawyer with a reputation for fighting for his/her client. Normally, settlement value increases after suit is filed and may continue to increase as you get closer to the actual trial date.

Third, be prepared for a fight and you must remain patient. If the insurance company makes you an unfairly low offer and suit is filed on your behalf, the insurance company may hold on to its money until very close to trial. Insurance companies understand that they have the money and it doesn’t make much difference whether they pay today or one year from now. It’s not going to have much, if any, impact on the large insurance company. Insurance companies make money over time on their money through investments, so the delay is normally nothing but beneficial for insurance companies. You, on the other hand, have lost time from work, received less than you thought for the value of your vehicle, incurred medical bills that threaten to turn you over to credit agencies, spent through your savings and now feel the need to settle your claim. The insurance company now has you at a disadvantage. Again, an experienced injury lawyer will assist you through this difficult process and help you see the light at the end of the tunnel.

Some of the factors to consider in assessing case value include:

1. The defendant’s behavior – The more outrageous the negligent behavior, the better the case value.
2. The defendant – Will the defendant make a good or bad witness?
3. The amount of insurance coverage
4. The type of negligence claim – Minor rear-end crash versus tractor trailer setting off chain reaction collision.
5. What county suit could be filed in – Certain jurisdictions are more favorable and insurance companies are aware.
6. The injuries sustained and their extent and duration – Muscle strains versus herniated discs, brain injuries, fractures
7. How the injuries effect your overall physical and mental well being
8. The physical pain and mental suffering in the past and expected in the future
9. Scarring – Scar to the face worth more than scar on back
10. Medical expenses in the past and expected in the future
11. Loss of earning in the past and expected in the future
12. Past and future pain, permanent impairment, loss of mobility, companionship, enjoyment of the things you enjoy

No two cases are the same, and even similar facts and injuries frequently lead to widely different outcomes. What may be relatively minor for one person may be devastating for another—how can a computer make that determination? The problem is, insurance companies rely upon them to perform that function thousands of times per day. There is no humanity in using a computer to determine the seriousness of an injury and how it impacts and changes a person’s life. For that, you need an experienced lawyer on your side, one the insurance company knows will file suit if a fair offer is not made. Even so, because of the use of Colossus or similar programs, the insurance adjuster doesn’t have the flexibility to go above the computer value, so the decision must be made—settle or sue?

Ultimately, your case is worth this— what you’re willing to accept in settlement and if not, then what you are awarded at trial. A skilled trial attorney should be able to give you a pretty good idea of the value range of your claim based upon their experience.

A lawyer should also explain the settle or sue options so that a decision in the client’s best interests can be made. If the case ultimately proceeds to trial, then the value will be determined by a jury using many of the twelve criteria listed above.

One of the first things that I learned as a trial lawyer is that I should be educating, advising and litigating for my client. For that to happen, I need to know the same things that we were all taught as young children. What happened? When did it happen? Where did it happen? Who knows what happened? Why did it happen? And most importantly, what do you expect me to do for you? So with that, let’s explore all the areas of law that a work injury can spread to.

The Worst Day of Your Life

As part of your work day, you are asked by your branch manager to drive from your Dupont Circle worksite to the Vienna, Virginia, office to cover for a sick colleague. As you discuss this with your boss, you let her know that you have a conference call with the Atlanta office at 1 p.m. She tells you no worries; you should attend by telephone on your way to Vienna. That sounds like a plan, and before you leave, you check in with your significant other who is on their way to a job interview since they have been out of work for the last six months. Oh, and you send a text to your son that you will watch his game on Game Changer, since there will be no way you will make it back home to Maryland in time for his game. Just another day in your life, and it can’t end soon enough, you think to yourself. However, somewhere west of Falls Church, Virginia, while relaying the data to the Atlanta office, something happens. The next thing you see is your significant other holding your hand in the hospital. You are told that you are lucky to be alive because your car looks like an accordion. The tractor trailer that crashed into your car also hit another car, and that driver was not so lucky. As you try to piece this together, you notice the pins and rods sticking out of your ankle, and your back and head are throbbing with pain. You ask your significant other, what are we going to do? Unfortunately, this kind of day plays out all too frequently. As a trial lawyer, my sole goal is to try to help you put your life together again through the use of the laws that exist to protect you and everyone when this happens. So, let’s begin.

Let’s examine what happened to you. We know from the discussions at the hospital that you were involved in a vehicle crash and that your injuries were caused by that crash. There are many ways to investigate how this crash happened. We can examine the police report, the first responders’ notes and the hospital records for x-rays taken of body parts that you might not know are injured. These are just some of the initial steps I take to make sure I have a basic understanding as to how your life was changed that day.

Let’s examine when it happened to you. We know from the arrival of the first responders that your life was changed at 1:32 p.m. We know from the examination of your phone records that you were on a work call to Atlanta at the time of the crash. We know from your car data, as well as the surrounding road cameras, that you were not speeding and did not leave your lane. We also know from the letters we sent out to the company of the truck driver that they cannot dispose of the phone records or other communications that may have been taking place at the time of the crash or it will be held against them later.

Let’s examined where it happened. We know from the road cameras, towing reports, police reports and reconstruction reports (as you recall, the other car driver was not so lucky) and hospital reports that the crash happened in Falls Church, Virginia.

Let’s examine who knows what happened. We know from the investigation so far that your colleagues in Atlanta heard the crash. We know from the various reports by police that other drivers witnessed the crash. We know from the hospital that your significant other was called to the hospital and given a description of what happened, as was your boss. You also found out that statements were given to all the insurance companies involved.

Let’s examine why it happened. We know from our investigation so far that you were not the cause of this crash. However, that is not the full picture. We also have to know why your injuries happened as a result of the crash. I need to examine not only all the medical reports and tests from the hospital, but also all the treatment reports from the doctors you will need to see and pay to recover from your injuries.

How a Lawyer That Cares Protects You

As a trial lawyer, I have a pretty good idea of why injuries happen, and it usually never starts with “I meant to do that.” The fact of the matter is that all injuries can be prevented—it’s just a question of when it could have been prevented and did the person or entity want to invest the time or money it would take to prevent the injury. Now join me on a journey to put your life together again through the laws that may be available to you.

I know of only two ways that I, as a personal injury lawyer, can put your life together again under the laws: medical treatment and money. I put them in that order because if I take care of your needs, the money will take care of itself. Your first cause of action to rectify the harms brought to you and your family is to pursue a negligence action against the responsible parties. We look at many things when considering who to hold responsible for your harms, including where should we hold those parties responsible. The responsible parties to take care of you medically and financially can be the driver of the truck, the company who employs the driver of the truck, the parties responsible for the design of the roadway you were on, your employer or your own car insurance, among others. In your case, we will decide together which state or federal court we should hold the parties responsible in so that we can put your life together again. In a negligence action, the laws are designed to address both your economic and non-economic harms (pain and suffering), and depending on the state, we will want to pursue it in a court that provides the fullest recovery. However, this will take a considerable period of time, and you have bills to pay and a life to continue while you receive medical care.

We should also look at what other laws there are to protect you. Your injury arose out of and in the course of your employment, and therefore the workers’ compensation laws are available to help you medically and financially. While you are recovering and not able to work, the workers’ compensation laws of at least the District of Columbia, and maybe the surrounding DMV, will provide you with lifetime medical care at the expense of your employer’s workers’ compensation insurance, as well as tax-free weekly income replacement benefits to help financially during your recovery. This is an important law that is sometimes overlooked, but for injuries at work it is invaluable to you, since your employer is required to purchase them as part of your employee benefits.

If we believe that this life changing injury has permanently restricted you from engaging in certain job duties of your employment, you may have rights under the American with Disabilities Act. It is not okay that your career and your family’s right to happiness has been put in jeopardy as a result of this injury. Although a personal injury attorney may not specifically handle this part of your case, he or she should be able to educate as to who may be able to help.

If we believe that this life changing injury has completely eliminated your ability to ever return to gainful employment, you may have access to medical care and financial assistance under the social security laws of your state. This may include a claim for social security disability benefits which you have been paying into because of your employment. Once again, a personal injury attorney should be able to educate you as to what steps to take to protect this right. You may also have been prudent enough to have purchased a disability policy in case of your inability to work, or even your employer, as part of your employment, has a disability policy on your behalf that you could turn to for medical and financial assistance.

What You Should Expect

Now that you have been educated about your rights, you need to be advised as to what your best course is to put your life back together. We will discuss not only the time and effort it will take, but a personal injury will be open and honest about what it will cost you. In most cases, it will cost you nothing as personal injury cases are handled on a contingency basis. This basically means that your personal injury lawyer will not get paid unless you get paid. As all of us are aware, if it’s not worth fighting for, then it is not worth pursuing. I never have represented a person with a life changing injury and heard them say, “My life and my family’s life is not worth fighting for.”

At each step of the process, timely advice is the key to putting your life back together. Therefore, communication with your personal injury lawyer is a sure sign that they care about you. This is all about you. Without you, there is no personal injury case. This relationship is the foundation on which your recovery will begin.

As the saying, “put up or shut up” implies, we are going to have to fight for your rights. Your life changing injury happened, and somebody has to say, “I was the responsible party.” As simple as it is to say, I’m sorry for what I have done, it’s not that simple when money and reputation are involved. In order to put your life back together again, a personal injury lawyer may need to go to trial to have a jury of your peers hold the company of the truck driver responsible, or to force your underinsured insurance policy to pay if they refuse to pay you the benefits you purchased from them. However you choose your fight and against whom you fight, make no doubt about it, you will need a personal injury lawyer to lead the way.

As I said earlier, one of the first things I learned many years ago about what a personal injury lawyer should do: Educate, Advise, and Litigate for your clients, I have spent over 20 years of my life discovering that those are the tools of a personal injury lawyer. I have also discovered that in order to be a personal injury lawyer, I must always strive to be:

A lawyer that will always have time to listen to you. A lawyer that will always have time to put your interest first. A lawyer that will always fight for you.

How does a trial lawyer who understands concussions, head injuries and traumatic brain injuries take care of people who are hurt in car wrecks, falls or sports?

If you have hurt your head in a car accident or crash, a trip or slip and fall or a sports injury, you may be having many problems that you do not connect to your head injury. If you are have injured in any of these ways, a concussion or brain injury can cause any of the following symptoms:

• Headaches or feeling of pressure in the head
• Confusion or feeling as if in a fog
• Memory problems or amnesia about your accident
• Dizziness or if you see stars when you were hurt
• Ringing in the ears
• Nausea or vomiting
• Slurred speech
• Sensitivity to light or noise
• Appearing dazed
• Problems responding to questions
• Problems with word finding
• Irritability
• Fatigue
• Depression

Questions about how brain injuries cause these kind of symptoms are answered in this blog.

If you remember one thing, choosing to have your case handled from the beginning by an experienced trial lawyer who understands representing injury victims with head injuries increases your chance of getting justice.

Here are two examples of the results we secured for clients who asked for our help after they suffered a concussion:

Concussion or Traumatic Brain Injury While Playing Soccer

A soccer player reached out to CHASENBOSCOLO to help him deal with the complications of a concussion that occurred as a result of playing soccer. As a result of the player’s choice to hire an experienced trial lawyer who understands traumatic brain injuries, he received almost three quarters of a million dollars in benefits. More importantly, the player will receive all of the medical care he needs for his traumatic brain injury for the rest of his life.

Some people think a brain injury to a professional soccer player does not have much to do with the problems they experience from a concussion in a motor vehicle collision or a fall. Hearing the player’s story will help anyone who has a head injury understand: (1) the symptoms they can have; and (2) how the insurance company will behave.

Our client suffered a concussion when he was elbowed in the head. After the hit, our client experienced immediate symptoms included a loss of consciousness, dizziness and confusion. Over the course of the next two days he was dazed, confused and struggling to participate in the daily activities of life. However, like many folks who suffer traumatic brain injuries, he was in denial. Having grown up in a sports culture that encouraged him to “shake off” minor injuries like hitting his head, he did not think these symptoms prevented him from playing. More importantly, as a person who did not let anything stop him from accomplishing his goals, he was committed to not missing any games.

The player was cleared by the team’s orthopedic surgeon, not a doctor who generally takes care of head injuries, to return to play. Based on his desire to play soccer and the opinion of the doctor, the player chose to play in another game two days later. He will regret this decision for the rest of his life. He started the game despite having ongoing symptoms of the concussion two days earlier. During the game, he was hit in the head for a second time. This hit caused a dramatic worsening of his post-concussion symptoms.

Since suffering that concussion, our client never regained full brain function. For about a year, his employer gave him a front office job that simply required him to sit at a desk, use the computer and telephone and talk to people. Even these simple job duties proved to be too great for him. This former elite athlete was not able to answer the phone or use a computer due to the symptoms of his brain injury.

Even worse, his life’s plans were derailed. While playing soccer, he had formed a business running soccer camps and coaching youth soccer players as a way to both supplement his income and to begin planning for his post-career life. Before the injury, he was involved in all of the activities that go into running a business. He marketed the business, entered into contracts, coached players, made personal appearances and participated in the day-to-day operation of the business. Before his concussion, he had no problems balancing the e-mails, phone calls and meetings that were required to build and run his business with the demands of his work as a professional athlete. Multitasking was part of his daily life. After the traumatic brain injury, he tried to keep his business running. Although he could no longer participate in camps or coach kids, he tried to help by making personal appearance and performing administrative work for the business. The player did what he could to market, negotiate contracts and respond to daily e-mails. As time passed, he learned that he could not even do these simple activities that required virtually no physical activity. Looking at the computer screen for an extended period of time worsened his symptoms. Attempting to multitask worsened his symptoms. He had no choice but to give the business to his partner

As a result of these back-to-back concussions, the player is now unable to work in any meaningful way. While he can function as a husband and father for a few hours each day, these back-to-back concussions prevent this former professional athlete from engaging in the simple activities of daily living for more than a few hours at a time. He is now forced to spend most of his time in his home without much noise or light in an effort to prevent the worsening of his post-concussive symptoms.

The player’s health was gone and his ability to care for his family was in danger. He asked us to protect his family. We decided that the best way to do this was to file a workers’ compensation claim.

When we did, his former team denied that he had any ongoing symptoms as a result of the concussions he suffered. The claim was contested from beginning to end. The club contended that the player did not have a traumatic brain injury. The club accused him of exaggeration. The club said he was doing this just to get money. Since there is no test that can prove a person has a traumatic brain injury, the club used that fact to support its argument.

We presented his case to an Administrative Law Judge. To overcome the fact that there were no tests prove there is a brain injury, we presented the testimony of two neurologists and a neuropsychologist who had cared for the player.

While the Judge was considering the case, the club agreed to a settlement that will allow the player to protect himself and his family. The player’s medical expenses, which to date exceed $100,000.00, have all be paid by the workers compensation insurance company. The club will continue to pay for the medical care he needs for the rest of his life. Finally, as a result of our efforts, our client received in excess of $600,000 to make up the wages he lost as a result of the end of his career.

If insurance companies doubt that a highly motivated professional athlete actually suffers from traumatic brain injury, you can be sure that they will doubt all hard-working men and women who suffer with post-concussion symptoms. If you have suffered a head injury while working, talk to a trial lawyer who is knowledgeable about traumatic brain injuries. If you do so, he or she will fight for an outcome that protects you and your family

Concussion or Traumatic Brain in a Car Accident or Motor Vehicle Collision

If you suffer a concussion in a motor vehicle collision, you should talk with a trial lawyer who understands traumatic brain injuries. A lawyer with experience in representing people with head injuries will help you get the results that you deserve.

In 2013, a woman who was a community fixture in a Maryland suburb of the District of Columbia suffered a head injury in a wreck. She was a long-time employee of the community’s school system. At the time she was injured, she co-owned a toy store in the center of town. Prior to the motor vehicle collision, she was in perfect health and had an excellent memory. She was responsible for maintaining her toy store’s inventory. Her former business partner told us that she had a computer-like recall of toys the store had in stock and what each toy cost.

On the day of the injury, the woman was leaving the store’s parking lot. A traffic light controls the exit. The woman stopped at the traffic light and waited until it turned green. She looked to her left, her right and back to her left to be sure that traffic was stopped. When she was sure it was safe, she entered the intersection. A driver coming from her left in the left hand lane of traffic ran the red light and crashed into the driver’s side of the woman’s car. The airbags deployed. The woman was tossed from side to side hitting her head during the collision. She immediately developed a lump on her forehead and had cut on her head. She was dazed but did not lose consciousness.

In addition to injuring her head, she suffered injuries to her left shoulder, upper and lower back, and the left leg from the knee down.

At the emergency room, she denied she had lost consciousness. But, she could not remember anything between hearing a boom and realizing that someone was at her door asking her if she was all right. She has absolutely no recollection of the period of time right after the crash.

In the days, weeks and months that followed the collision, she had headaches, dizziness, balance issues and memory loss. Simple things like finding her keys or remembering what toys were out of stock escaped her mind.

Our client is a very tough person. She does not like or trust doctors.

Other than some treatment that was designed to try to improve her balance problems, our client chose not to get much medical care and treatment. When she was still experiencing memory loss, headaches, balance problems and dizziness, we sent her to see a top-notch neurologist. That neurologist determined that our client had a brain injury. He recommended neurological care. Our client chose not to get this care because it would only provide temporary relief and she does not like going to doctors. The neurologist concluded that our client lost 15% of the function of her brain.

Our client also was afraid to drive because she thought another irresponsible driver would ignore the traffic safety rules and hit her again. Our client was sure that she was going to be in another crash. Her driving anxiety is so bad that she never drives past the intersection where the collision happened. In order to help her overcome her fear we sent her to see a highly regarded psychiatrist. That doctor determined that our client suffered from depression and anxiety as a result the motor vehicle collision. He recommended psychological care. Our client chose not to get medical care because it would only provide temporary relief and she does not like going to doctors.

The insurance company, as they always do, based its evaluation of the case on the medical care and its costs. Since our client did not like doctors and did not get much medical care, her medical expenses were not very high. In the weeks and months leading up to trial, the insurance company offered only $57,000 for the life-changing traumatic brain injuries that our client suffered.

We decided that the case had to be presented to a jury. The case was tried for two days. The neurologist explained how the traumatic brain injury occurred and a friend, family member and former business partner all testified as to their observations of how the motor vehicle collision changed our client’s life.

After learning about traumatic brain injuries in general and how our client’s life was changed, the jury returned a $500,000 verdict.

This is why it is important to have a trial lawyer who is knowledgeable about traumatic brain injuries handle your personal injury or workers’ compensation case

The Most Important Thing to Remember

The simple truth is that concussions and traumatic brain injury are serious, life-changing injuries. Traumatic brain injuries are common in car wrecks, fall or sports injuries. Traumatic brain injuries are hard to understand and treat. It is very hard to prove that a person has a traumatic brain injury. Insurance companies and their lawyers know how to get their clients off the hook if you suffer a traumatic brain injury in a car wreck, fall or sports injury. If you want the results you deserve, you should talk with a trial lawyer who has actually tried cases involving traumatic brain injury.

CHASENBOSCOLO has more than twenty experienced trial lawyers waiting to help you, and we’re ready to help day or night.

$11 billion and $700 million. That’s almost $12 billion. These are the 2016 profits of the following publicly traded property and casualty insurance companies: Travelers, Allstate, USAA, Progressive, Liberty Mutual, Hartford, FM Global, Loews and Fidelity National.^[1]

This does not include the twenty-four billion dollar profit that Berkshire-Hathaway, the owner of Geico, earned in 2016.

Nor does it include the 2016 profits of the larger mutual property and casualty companies in the United States: Erie, $210 million; Auto-Owners, $386 million; State Farm, $250 million; Nationwide, $910 million; and even the relative newcomer to TV advertising, Farmer’s, earned $148 million (or $37 million every three months).

And don’t get me started on the health insurance companies. Let’s look at their second quarter of 2017: United Health Group, $2.3 billion; Aetna, $1.2 billion; Anthem, $855 million; Cigna, $813 million; and Humana, $650 million. The top 6 health insurers reported $6 billion in adjusted profits in the second quarter of 2017.

What are the myths?

• My insurance premiums are rising because of all the tort lawsuits.
• If we restrict victims’ ability to bring medical malpractice suits, healthcare would improve and its costs would be reduced.
• Because doctors are afraid of getting sued, they practice “defensive medicine.”
• Frivolous lawsuits clog the courts.
• Caps on damages would reign in “out of control” juries from awarding lottery-size sums to plaintiffs, cause malpractice premiums to fall and thereby reverse the doctor shortage caused by doctors fleeing the profession.
• Punitive damages are awarded too often and are too high.
• Juries are more likely than judges to award punitive damages.
• Damage awards are escalating out of control. The tort system has been turned into a lottery system favoring plaintiffs.
• Juries get caught up in the emotion of trial, ignore the law and find for sympathetic plaintiffs.
• Tort plaintiffs are using the courts to cripple American businesses.

In an article titled “Malpractice Myths” written by Bob Herbert on June 21, 2004, Mr. Herbert says, “It may be hard to understand why ‘tort reform’ is even on the national agenda at a time when insurance company profits are booming [Barry’s note: just like today], tort filings are declining, only 2% of injured people sue for compensation, punitive damages are rarely awarded, liability costs for businesses are miniscule, medical malpractice insurance and claims are less than 1% of all healthcare costs in America and premium-gouging underwriting practices of the insurance industry have been widely exposed.” These observations are no less true in 2018.

To discuss these issues, I’m going to group the myths in three categories:

1. Insurance rates go up because of frivolous lawsuits and lottery-sized awards.
2. Without the worry about medical negligence, healthcare would improve, costs would go down and doctors will not leave the profession.
3. The third myth involves the assertion that the jury system is broken. There are frivolous lawsuits, run-away juries giving lottery-sized awards, juries are stupid and these awards cripple American business.

Let’s talk about three examples: health insurance, medical malpractice and property and casualty insurance.

Health Insurance

The myth is that doctors who are afraid of being sued practice defensive medicine, thereby performing unnecessary tests, and thereby driving up health insurance costs. Let’s examine the facts: Three states, Texas, Georgia and South Carolina, passed tort reform laws that made it almost impossible to sue doctors or hospitals for emergency room treatment. Why emergency room treatment? The rationale was that ER doctors practice in an environment where information is scarce, the risk is high and technology is readily available. This is a confluence of factors that might lead to practicing “defensive medicine.” A major study, published in the New England Journal of Medicine of 3.8 million ER visits at almost 1,200 hospitals between 1996 and 2012 determined that doctors in the tort reform states, who were virtually immune to suit, ordered just as many MRIs and CT scans as doctors in the control states. Removing the risk of suit did not change behavior.

There is a second fallacy to the argument that tort reform reduces defensive medicine and thereby reduces health insurance costs. The Cleveland Clinic conducted a study, by Michael B. Rothberg, to measure how much defensive medicine exists and what it costs. The conclusion was that defensive medicine was 2.9% of the estimated $2.7 trillion US healthcare total (or $78 million). While not insignificant, that is a very small component of overall healthcare spending.

Medical Negligence

The attack here is two-pronged. The old standby, defensive medicine, is one. The second is that doctors are leaving the profession in droves and that smaller communities cannot get doctors to practice there. We have already debunked the “defensive medicine” argument. The argument for doctors leaving the profession is that frivolous suits clog the courts, so there is a need to make it harder for victims to file malpractice cases, and damage caps will reign in out of control juries who were awarding lottery-size sums to victims.

Let’s address doctors leaving the profession. Despite the claims of the AMA and state medical societies, the number of medical professionals in the United States continues to grow. And when it comes to access problems, the U.S. General Accounting Office finds those claims to be false or wildly exaggerated. Some rural and poor urban areas are underserved. Such areas often have trouble attracting other professionals too. In fact, the Counsel of Graduate Medical Education has opined that the relative shortage of health professionals in rural areas of the US is one of the few constants in any description of the US medical care system over the last half-century or more.

Let’s turn to frivolous lawsuits and out of control juries. Frivolous cases are cases that shouldn’t have been brought at all or that are rarer than most tort reform advocates admit. Studies have documented that the majority of such suits do not result in a payment to the plaintiff. And the contingency fee system helps weed them out. If a lawyer believes that he or she won’t get paid, they will not pursue the case. James Gattuso, then of the conservative Heritage Foundation, argued in an article for The Wall Street Journal titled “Don’t Rush to Condemn Contingency Fees,” that the contingency fee system ensures that injured persons who could not afford legal representation otherwise can obtain access to the legal system and also screen “baseless lawsuits” out of the system. The converse is the bigger problem—genuinely injured patients who can’t get redress because the courthouse doors have been shut to them.

Out of control juries are also a myth. A U.S. Department of Justice study found that the median medical malpractice award in a jury-decided case was $400,000. In bench trials where the judge serves as the trier of fact, the median award was $631,000. And judges are more likely to find in favor of the plaintiff. Plaintiffs win in tort trials 48% of the time. They are more likely to win in a court trial where the decision is made by a judge (57%). Here are the results of judge vs jury in selected types of tort trials:

• Premises liability: judge 52%; jury 38%
• Automobile cases: judge 63%; jury 57%
• Medical malpractice: judge 38%; jury 23%
• Products liability cases: judge 70%; jury 31%

Dr. David Studdert led a team of 8 from the Harvard School of Mental Health, Brigham and Women’s Hospital and the Harvard Risk Management Foundation in a study of 1,452 medical malpractice lawsuits. Ninety percent of the claims showed evidence of medical injury, which means they were not frivolous. Sixty percent of the cases were from physician wrongdoing. In a quarter of the claims, the patient died. When baseless medical malpractice suits were brought, the courts threw them out. In six cases where no injury could be detected, only token compensation was received. Where an injury resulted in treatment, but evidence of error was not clear, 145 of 515 (or 28%) received compensation. A bigger problem was that 236 cases, where there was evidence of error to patients by doctors, were thrown out of court. In the other 1,050 cases, the researchers found that the cases were decided correctly, with damage awards going to the injured and frivolous cases being dismissed.

Here’s what our nation’s trial judges think about the jury system. A 2000 survey sent to 1,000 trial judges, including every federal trial judge, revealed that:

1. Judges have a high level of day-to-day confidence in the jury system;
2. Only 1% of the judges who responded gave the jury system low marks;
3. Nine out of ten trial judges, who work closely with the jury system, think the system needs only minor tinkering, at best;
4. Overwhelmingly, state and federal judges have great faith in juries to solve complicated issues and
5. 90% of the judges responding said jurors show considerable understanding of legal issues involved.

And finally, statistics show that juries are generally conservative and reasonable and their decisions rarely differ from what a judge would decide.

A word about punitive damages. This argument is a non-starter. Punitive damages are very rare. They are only awarded in 3.3% of all tort trials won by plaintiffs. And in 1996, the average punitive damage award was $38,000, not the millions of dollars alleged. Judges were more likely than juries to award punitive damages. Judges in 1996 awarded punitive damages in 8% of all tort trials decided by judges in 1996. As stated earlier, juries awarded punitive damages in only 3% of all tort jury trials decided.

What is really expensive in medical malpractice? It is shoddy medical care. The obsession with tort reform has slowed down patient safety initiatives. Let’s start with anesthesiology. In the 1980s, following many large awards against the specialty, anesthesiologists revamped their procedures, created compulsory monitoring, increased and improved training, limited the hours their specialists could work without rest, redesigned machines and added safety features. Within 10 years, the mortality rate went from 1 in 6,000 to 1 in 200,000. Malpractice insurance rates fell to the lowest of any medical specialty.

But the tort reformer’s success has diminished the need by other specialties to take other self-policing reforms. Continuing along this vein, hospitals are dangerous. In 1999, the Institute of Medicine at the US Academy of Science published a study entitled “To Err is Human.” This study concluded that between 44,000 and 98,000 patients were killed (and many more injured) in hospitals each year because of medical errors. That is more than in car crashes and workplace accidents combined, and does not include deaths in doctors’ offices or clinics. By 2011, a study in HealthAffairs estimated the number of avoidable deaths was probably closer to one million. Then there was the study done by Harvard Medical Practice of 31,000 medical records. The records were reviewed by practicing physicians and nurses, people who would, by and large, be sympathetic to the demands of medical practice. The records went through rounds of review and negligence was only found if two doctors working independently came to the same conclusion. Even with this conservative approach, the study found that doctors were injuring one out of 25 patients. Only 4% of those patients sued.

What is needed is a crackdown on malpractice. When the American Medical Association speaks of a malpractice “crisis”, they are referring not to the people injured or killed by medical errors or the widespread failure to discipline negligent doctors (including many repeat offenders), but rather to the doctors’ increasing malpractice insurance premiums. So, not only are they trying to get off the hook for what they’ve done, but they’re targeting the wrong group as the source of their ills. It’s time for the doctors to blow the whistle on the insurance industry and their exploitive practices, as well as on the members of their profession who violate the maxim, “First, do no harm.”

Let’s call it what it is. This is all about greed! Tort reform leads to additional profit for the insurance industry, which is precisely the reason that the insurance industry is sinking so much money into its unrelenting campaign for reform.

Property and Casualty Rates

The first paragraph in this article presented the obscene profits being generated by health and liability carriers presently.

How do insurance companies profit? Most of the profit comes from investment income. Insurance companies generate revenue in the form of premiums paid. They hold these premiums until they make a payout to or on behalf of the policyholder. Between those two events, the money being held is called the “float.” (Before people had so many options to carry money electronically, American Express made more money from the “float” on travelers checks, the time between purchase and redemption than they did from money generated from use of their credit cards.) So, the “float” is invested. When the market is strong and/or interest rates are high, the companies make a nice return on their investments. In times like these, the insurance companies may even reduce their rates to attract more premium dollars to invest. This scenario is called a “soft” market.

So, what happens when the market declines? Investment income falls. Then insurance companies raise their rates or reduce coverage. This is a “hard market.” The US economy has experienced several of those in the last 40 years. These hard markets occurred in the mid 70s, mid 80s, 2002-2003 and from 2007-2009. These were the markets where insurance rates for doctors skyrocketed. So while the insurance companies and other tort reform proponents argue that litigation, frivolous lawsuits and run-away juries are to blame for insurance premiums going up, these increases are being driven by the insurance companies’ responses to the broader economic cycle. In fact, claims and payouts stayed flat or declined in each of the “crises.” Since insurers target the civil justice system rather than the economic cycle, tort reform solutions failed to reduce insurance rates. And what was the response of the American Insurance Association when presented with this empirical data? “Insurers never promised that tort reform would achieve specific savings.”

So, what is the solution? The insurance industry needs stronger regulation. Stop the insurance industry from price-gouging their policy holders, especially when industry profits rocket upwards. Doctors should re-direct their anger at the insurance industry (How many times have we heard doctors bristle at what they consider to be “health insurers practicing medicine?” Surely, they know who the real enemy is!) and better police their profession to remove the subset of doctors who repeatedly commit malpractice. Or are the doctors, like their legal counterparts, powerless in the face of the massive donations being given to lawmakers, who are so willing to accept the largess so that they can stay in office?

Tort reform is a myth, perpetuated by greed. How can any intelligent person argue in favor of these sham laws that serve to abridge our constitutional rights? These proposed laws are just another attack on the rights of the average American citizen. Who do we want to speak for us, a jury of our peers or large companies earning obscene profits?

^[1] Numbers based off the 2016 Annual Reports for these Insurance companies, which were calculated by Barry Chasen to equal a total combined net profit of $11.795B, which was rounded up to an even $12B.

Nestled between the Bronx and Manhattan, the most serene location I’ve ever found in New York City is the Harlem River at 6:00 a.m. Mondays through Saturdays.

The murky water reflected the impending sunrise off its oily sheen. After attaching the riggings to the shell and climbing in, both the stillness and the serenity of the river rippled away.

I rowed for three years in college. The dreaded two-a-days workouts and indoor erg pulls were the only downside to trolling between Yankee Stadium and the Broadway Bridge. At some point during my third year, I began to notice a dull ache in my hip after practice. Nothing some rest (and ice cream) couldn’t fix. As race season ramped up, the pain intensified and was less willing to subside with my self-prescribed therapy à la mode.

I sought treatment with the athletic department’s trainer. “Just ice it and it will go away,” they said. It didn’t. Back to the trainer’s office. “Have you tried heat? It will help.” The pain persisted. I then went to my family practitioner. “Have you tried a course of anti-inflammatories?” Yes, but just like everything else so far, no relief.

In the meantime, race season had ended, finals were approaching and I found I was having trouble walking back from the subway after work. I was given a referral to see an orthopedic surgeon. After performing a few quick tests, my orthopedic surgeon told me we needed an MRI and it was possible I had torn “something” in my hip.

Jumping Through Hoops for Insurance Authorization

The MRI order was promptly denied by my health insurance company. However, they approved an x-ray of my hip. My doctor and I agreed that although the MRI was what he had ordered, I should go ahead and get the x-ray taken.

Results: “Unremarkable.” Back to the doctor so he could inform my insurance company I needed an MRI. Again, it was denied with a note indicating it was “unlikely a 22-year-old female is having difficulty walking.” However, they approved a CT scan with contrast. Not a procedure I’d ever like to repeat, but I got it done (at, of course, the facility my insurance company identified).

Back to my surgeon who said, “We still really need an MRI to see what is going on.” Turns out, the CT scan had been inconclusive. On the plus side, they had injected some lidocaine and I was feeling great! (For a mere two days.)

The MRI was finally approved and done (again at a facility identified and approved of by my insurance company). The results were in. I had “an acetabular labrum tear and possible degenerative changes.” In English, please? I tore a small piece of cartilage near the femoral head and the pelvis, and there were indications of arthritis.

I was then informed the surgery did not come with a guaranteed success story. In fact, it was unclear whether the effects of the surgery would last a few months or the rest of my life. “What about if I want to have kids?” We don’t have the research. “Will I be able to go back to rowing?” Absolutely not. “What about hiking? Walking a strong dog on a leash?” You should be okay. “Dancing? Running? Bicycling?” All of those are fine—but no yoga or Pilates. After this surgery, you will be forever restricted from those activities and anything that isolates the hip muscles and joint. I was 22 and contemplating what my life would look like with a perpetual cloud of uncertain future surgery and/or restrictions.

I went for a second opinion (as you might imagine, not covered by my insurance company) and a review of all the studies performed on my hip. I went to a prestigious hospital in New York City to consult with a doctor that spends the large majority of his time on torn acetabular labrums. It turned out to be an incredible waste of time. I was seen by the doctor’s physician’s assistant, who listened to my description of the pain and its duration. The doctor himself came in for less than four minutes. During that time, he spoke rapid-fire and there was no time for any of my follow-up questions. He told me my MRI images were “far too fuzzy to even interpret,” and, “I’d have to measure your legs if I’m going to do this surgery—it might have to be a total hip replacement, I’m not sure yet,” and, “You’ll have to get new MRIs done at the place I like down on 58^th. Go there and have them sent back over to me and we’ll go from there.” And then he was gone. And so was I.

It was time to schedule surgery with my orthopedic surgeon, which my insurance company again denied. My doctor appealed the denial on my behalf, explaining I was an otherwise perfectly healthy 22-year-old who could not walk without pain.

Denied again. My surgeon called to explain the denial. He indicated that often the denials are decided by employees of the insurance company who have little to no medical training or background, but rather follow a set of parameters provided. He again appealed on my behalf, using the multiple studies as support for the surgery. At this point I was tired of the run-around and constantly having to rely on someone else to advocate on my behalf. A short time later, the surgery was finally approved.

Becoming My Own Advocate

I was elated to find out that not only was the surgery approved, but so were 24 visits to a physical therapist after surgery. The physical therapy was to be performed at a location entirely inconvenient to both my home and office locations. I did some research of physical therapy centers closer to my home and office and sought the advice of friends and officemates. I was fortunate enough to work as an administrative assistant in a law firm specializing in medical malpractice at the time—so the advice was well taken. I took that information and called my insurance company myself.

I explained that the location they had identified to attend physical therapy sessions was inconvenient and was not the location where I wanted to seek treatment. I gave them the name of the facility not two miles down the road from my office, which was accessible during my lunch hour and okay with my employer. I expressed my willingness to attend physical therapy (I really wanted to get better and get back to what I was doing) and that I took my healthcare very seriously. I was told a decision would be made but that there were no guarantees and I shouldn’t get my hopes up.

To their credit, the insurance company approved my physical therapy at the location I designated. I got the approval letter in the mail and it seemed like it was all coming together. The surgery was a few days away, and I had the physical therapy all lined up—now all I needed to do was rest, recover, and get back to my daily life. Until I scrutinized the letter—which indicated they had only approved 18 sessions of therapy at that location. I rooted through all my paperwork (and there was a mountain of it) to find the other approval letter that allocated 24 physical therapy sessions. I looked at them. And read them again. Read each one over—placed them side by side and upside-down. One said 24 sessions. The other 18. Apparently, asking to have the same treatment at a different facility resulted in the loss of 6 sessions.

I gave the papers to family members to read to ensure I wasn’t missing anything. I asked the attorneys in the firm to glance over them. Nobody could explain the loss of 6 sessions of physical therapy on the eve of surgery simply by switching locations, and I still had unanswered questions that no one seemed to be able to answer. But I knew someone who could.

A telephone call to my insurance company confirmed they had unilaterally decreased the number of sessions I needed post-surgery. I placed a call to my doctor’s office to let him know what had happened. He agreed the facility I was now going to attend was superior to the one identified by the insurance company, but there appeared to be no rationale as to why they slashed 6 sessions from my treatment. He told me not to worry—we would start with the 18 treatments, and he would prescribe more if I needed them.

The surgery was a success. I awkwardly clunked around on crutches for two weeks until my post-operative visit with the surgeon. He had the biggest smile and asked (with far too much enthusiasm) if I wanted to see the photos from the surgery. No, I did not. Turns out, it wasn’t a question; we were going to review them together. We looked at the tear—which was much worse than previously seen on the MRI. We looked at the femoral head, which had a lot of arthritic bone that was removed during the surgery. We reviewed every detail of the surgery—and I was finally given clearance to attend physical therapy and take a proper shower.

Hitting the Wall

After 18 sessions of lunch-hour physical therapy, the physical therapist and my doctor agreed I needed at least 18 more sessions to ensure proper healing and that the surgical repair would last. They both prescribed 18 more sessions. However, the insurance company had not made its decision regarding the continued treatment before my next scheduled session.

I asked the physical therapy facility if they would be able to provide treatment in the interim. They were willing to help, provide treatment and lend support wherever they could. A few days later, I received an approval letter for continued physical therapy sessions from the insurance company. Six more sessions. One-third of what had been prescribed by treating professionals.

I grumbled and fought with the insurance company, roping in my doctor and the physical therapist. The insurance company wouldn’t budge and refused additional treatments. 24 sessions in total were the most they would cover, and if I wanted to continue I certainly could—paying out of pocket, of course.

I attended my last 6 sessions, keeping in close communication with my surgeon and the physical therapist. I asked if I could have them draft and approve a home exercise program that I could do at home in lieu of paying out-of-pocket for continued visits. They both agreed this was an excellent idea—but if there was any pain I was to return to their care immediately.

Creating the Spark

While all of this was going on, I had been working in a law firm while trying to figure out whether I really wanted to go to law school. I had been working in the same firm for over seven years at that point, and I wanted to make sure that law school was really and truly my dream. Going through this experience only solidified my desire so that I could advocate for others. Along the way I learned how to effectively advocate for myself both in and out of a legal forum, and I am always enthusiastic about using my skill set to the benefit of others.

It’s been over eight years since the surgery. I can live without yoga and Pilates. My husband and I (attempt to) ride a tandem bicycle on occasion. I’ve hiked a portion of the Appalachian Trail while pregnant. I chase after my son on uneven terrain and skillfully dodge dump-trucks in my living room.

It’s no longer the dark waters of the Harlem, but I’ve found serene places all over the DMV—and I can’t wait to find more.

Useful Tips for Those Dealing With Injuries:

• Be your own advocate.
• Talk to your doctor and ask questions.
• Bring a notepad with questions you have and space to write down what the doctor says.
• Discuss your symptoms with your doctor and ensure you both have a clear understanding of the course of treatment.
• Ask why your health insurance, or your employer’s workers’ compensation insurance (if you were hurt on the job), is denying treatment recommended by your doctors.
• Work with your treating providers to find alternatives while you’re waiting on authorization (or if authorization is denied).
• Be persistent. Sometimes, it will take several “nos” to finally get a “yes.”
• If insurance is requiring you to go to a provider that doesn’t work for you, see if there are alternatives available. Do the research to find a better location that accepts your insurance.
• Don’t be afraid to ask your doctor to advocate on your behalf for necessary treatment.