When Will I Receive My Injury Settlement?

Jun 15, 2022 | CHASENBOSCOLO

The goal of any personal injury claim is to garner financial compensation from the party responsible for your injuries so you can recover your health without going into debt.

You may be concerned about the timeframe of a personal injury case. This is understandable. You would like to see the matter resolved quickly so you can move on with your life. The Virginia personal injury attorneys of CHASENBOSCOLO understand this and take pains to leverage every resource at our disposal to resolve your case, either in the form of a settlement or, if settlement negotiations are unsuccessful, at trial.

Below are some of the elements that determine how long you may expect your case to last.

The Complexity of the Personal Injury Case Investigation

You can be assured that the lawyers at CHASENBOSCOLO will work hard to investigate every detail of your case. We have members on our team dedicated to thoroughly and efficiently gathering evidence so we can piece together the events that led to your injury.

However, investigations can be complex in some cases. Extensive documentation may need to be collected and analyzed. Numerous witnesses may need to be interviewed, some of whom may be hard to reach. The at-fault party’s cooperation or lack of cooperation may also influence how long it takes to wrap up an investigation.

Assessment of Injuries and Future Medical Needs

A detailed assessment of your injuries is a critical component of any personal injury case. The nature and complexity of your injuries may factor into how long it takes to settle your case. We usually can’t enter into settlement negotiations with the at-fault party’s insurance company until your treatment is complete or until you have reached “maximum medical improvement.” That means it’s unlikely that your condition would continue to improve.

At CHASENBOSCOLO, we talk with medical experts, examine all medical records, and carefully determine your future medical needs and costs, if ongoing treatment is required. The time needed to accurately complete this process is time well spent. In the long run, it is in your best interests to get the care and treatment you need.

Dealing with the Other Party’s Insurance Company

Some accidents are fairly straightforward, and the insurance company may not dispute liability. In other situations, insurance companies can be difficult. They might even refuse to admit any fault on the part of their client. A long and difficult fight with an unruly insurance company may delay the settlement of a personal injury case.

Insurance companies might also fight us on the dollar amount of damages you deserve. Our team believes it is worth it to pursue fair and comprehensive damages. This is where our experience and negotiating skills come to the rescue. We are not afraid of fighting for what you deserve. However, a reluctant insurance company can slow things down.

Involvement of Multiple Parties

When multiple parties are involved, an accident may not be as straightforward as one party injuring another. Complex cases are more time-consuming. The more parties there are, the more lawyers and insurance companies there are to deal with. We have extensive experience handling complex cases, but they often require more time to settle than cases with fewer parties.

Dealing with Your Own Insurance Company

In Virginia, drivers are not required to purchase auto insurance if they pay an annual fee. Estimates are that about ten percent of Virginia drivers are uninsured. If one of them injures you in an accident, you may need to file a claim with your own insurance company. Unfortunately, companies sometimes challenge these claims, which adds another step to the process. This may be the case even if you have faithfully paid your premiums on time for years. Fortunately, CHASENBOSCOLO has experience handling these situations.

Get Help Today from CHASENBOSCOLO

Without knowing all the details, it is difficult to predict how long a case may take. Even as experienced personal injury lawyers, we won’t be able to provide an exact assessment of how long it will take to get the compensation you deserve.

When it comes to taking legal action in a personal injury case, it is always better to start as soon as you can. The clock starts clicking as soon as you are involved in an accident. In Virginia, the statute of limitations allows a two-year window for filing a lawsuit against the person who was responsible for your injuries. This makes it imperative that you contact a lawyer as soon as possible.

The Virginia personal injury attorneys of CHASENBOSCOLO are ready to represent you in pursuit of the compensation you deserve. The first step in receiving fair compensation for your injuries is contacting us now at (301) 220-0050. Let us get started on your case today.

 


Best Ways to Document Pain and Suffering

Mar 01, 2022 | CHASENBOSCOLO

Best Ways to Document Pain and SufferingWhen you were injured in an accident that was someone else’s fault, you can pursue compensation for your injuries to hold them accountable. The harm they caused comes with a great cost. You need to obtain medical treatment for your injuries, and you need time to recover. This can lead to an absence from work and, in turn, a decrease in your usual income. The physical pain of your injuries can be overwhelming, and the strength you’ve had to muster just to face your recovery every day can’t be overstated. The overall effect your injuries have had on you emotionally and mentally is just as much of a loss as the direct financial costs of your medical care.

You could be compensated for your pain and suffering. To strengthen your claim or lawsuit and your chances of obtaining the full compensation you deserve, you need to show the extent of your pain and suffering. There are several ways of documenting your pain and suffering and, with the guidance of a personal injury attorney, you can help ensure you’re doing everything you can to support your personal injury claim and/or lawsuit.

Proving Your Pain and Suffering

To be compensated for your injuries, you have to prove that your injuries were caused by the negligent actions of another party. You also have to prove that their actions caused you to suffer actual harm. Many of the ways that you can show you’ve suffered physical harm can serve to show that you’ve endured emotional pain and suffering, as well.

Seek Help

medical attention post car accident

It likely goes without saying that if you’ve been injured, you should receive immediate medical attention. Your recovery from your injuries depends on your receiving the medical treatment you need. Additionally, being treated for your injuries will serve as central evidence in your personal injury claim or lawsuit.

When you’re treated in a hospital or other medical setting, the medical professionals who care for you create a detailed record of your symptoms, their examination and subsequent diagnosis of your injuries, the extent of your injuries, and the treatment they provided. Your medical record will also detail any continued treatment, including referrals to specialty doctors that they prescribe for your recovery.

Your medical record will support your lawsuit or claim because it will show that you were injured and the severity of your injuries. The treatment you received can help support the extent of your pain and suffering. For example, someone injured in an accident who underwent multiple life-saving surgeries clearly experienced pain and suffering as a result of their injuries.

If your pain and suffering are causing you significant mental and emotional symptoms, you should also seek psychiatric care. This may help you begin to feel better, and you can get treatment for any accident-related mental disorders you may be suffering from. The documentation of your psychiatric treatment will also support your claim or lawsuit seeking compensation for your pain and suffering.

Document Your Day

The pain and suffering that you’re dealing with every day can be emotionally taxing. Putting your thoughts and feelings on paper can be healing. It can also help your claim or lawsuit. If you keep a journal, you can show written proof of the pain and suffering you’ve dealt with day in and day out.

Each day, you should journal your physical symptoms, how you’re feeling mentally and emotionally, and how your injuries (physical and mental) are affecting your ability to live your life as you normally would. You can also detail any doctors’ appointments you attend, what happened at those doctors’ appointments, and whether you needed to take any medication to manage your symptoms or injuries.

CHASENBOSCOLO Can Help

For over 35 years, the Virginia personal injury lawyers of CHASENBOSCOLO have been fighting for people who have suffered injuries due to the negligent actions of others get the justice they deserve. We’ve earned a reputation for being aggressive when it counts so we can give our clients the best chance at recovering their losses so they can move forward with their lives.

If you’ve lived through physical pain and emotional suffering since someone caused you serious injuries, contact the personal injury lawyers of CHASENBOSCOLO to pursue the compensation you may be owed. Call us today at (301) 220-0050, or contact us online to schedule a free consultation.


Why Posting on Social Media After an Accident Can Hurt Your Case

Jan 01, 2022 | CHASENBOSCOLO

If you are involved in an accident that was not your fault, you may be entitled to compensation. However, there are several factors that can adversely affect your case. Posting on social media is one of those factors.

After a traumatic accident, it’s natural to reach out to family and friends and assure them. Unfortunately, when you use social media, you may be setting a trap for yourself. If you are seeking compensation for your injuries or filing a personal injury claim with the at-fault party’s insurance company, you could destroy your case before it even gets started.

How Your Posts Can Harm Your Case

The social media platform you use is not as important as not posting in the first place. Even an innocent post can be used against you. For example, what you say in a post can be used to poke holes in your injury case. How you look in any photos can be used as evidence. Where you are in the days and weeks after an accident can also be used as evidence that your injuries were not as serious as you are claiming.

Many people enjoy using geotags to check in with friends. However, these tags may demonstrate to the opposing counsel or insurance adjuster that you’re traveling and out of your home, at the same time you’re claiming that your injuries or depression has kept you isolated.

It is important to remember that pictures and social media posts do not have context. If you’re smiling in pictures taken with a group of other smiling people, it can be argued that you are exaggerating your claim of depression and your mental state. The picture is taken in less than five seconds and does not represent how you’re feeling, but it can be argued that it’s representative of your current situation.

Anything you post online can also be interpreted incorrectly. For example, your comments may be interpreted as an admission of fault, or the post shares information about the accident that should remain confidential to support your case.

For example, attorney-client confidentiality will be upheld by the court if you and your attorney are the only two people who know the fact. If you give information on the details of the accident or injury, the opposing side can argue that you gave up your right to confidentiality when you began sharing the information.

Insurance companies and opposing counsel can also look at your overall activity level on social media as evidence that you are exaggerating your injuries. Even if the comments and images have nothing to do with the accident or your current situation. The defense can argue that posting your “normal” amount of activity indicates that you do not have as much physical or emotional pain as you claim. The best solution is to stay off social media after an accident.

How Opposing Counsel and Adjusters Find Your Posts

Once insurance adjusters and defense attorneys find your social media profiles, they can glean different kinds of information. This includes your date of birth, ethnicity, relationship status, photos of yourself, friends and family, and videos that may reveal your speaking patterns.

It’s easier to find your social media posts than you might think. Even when your social media profile is private, lawyers can have access during the discovery process. During this part of the preparation for an injury lawsuit, each side can ask the other side for information. This means you may be forced to turn over even your private media posts.

The court can also order the social media platform to restore any posts that were deleted. If you receive a friend request from someone you don’t know, it may just be the insurance adjuster or opposing counsel’s legal team looking for information that you might be posting.

How to Avoid Damaging Your Case With Social Media

If you have already posted to your social media accounts, it is vital that you do not delete anything. Destroying potential evidence can be fatal to your case. Instead, you must preserve your current postings and talk to your attorney about safely and correctly archiving the information.

You may also wish to deactivate your social media accounts, so you are no longer posting until the case is over. Ask your friends not to post any pictures or comments about you on their social media accounts. Watch to see if you are tagged in photos on your friends’ accounts and monitor them carefully.

After an accident, keep and preserve all electronic devices that you own. Even if you had already planned on getting rid of a cell phone or a tablet, store it until your case is over.

Call CHASENBOSCOLO Today for Your Free Evaluation

If you were injured because of someone else’s negligence, call CHASENBOSCOLO for a free case evaluation. You will meet with one of our experienced attorneys who will review your case details and advise you on your next best steps.

We understand the emotional and financial burden that may follow a significant accident and injury. We know that money cannot make up for the physical and emotional pain. However, money to cover your medical expenses and replace lost wages can make the road to recovery just a little smoother. Call us today at (301) 220-0050 or contact us online to schedule your free consultation.


What Not to Say to an Insurance Adjuster

Nov 01, 2021 | CHASENBOSCOLO

When you are dealing with shock and injuries in the aftermath of a car accident, it can be difficult to think about what to say to an insurance adjuster when they contact you. What you do and don’t say, however, can make or break your case, so it’s critical that you understand how to communicate with them.

The Role of the Insurance Adjuster

An insurance adjuster is employed by an insurance company to investigate and assess the company’s liability in the claims they review. It is the insurance adjuster’s job to settle the claim as quickly as possible for the lowest possible amount. Unfortunately, this means that the insurance adjuster is not on your side. Even though they may sound friendly and inquire about your wellbeing, their goal is to give you as little compensation as possible.

What You Should Do When You Talk to an Insurance Adjuster

Within a few days of an accident, you can expect a call from at least one insurance adjuster. Here are five things you should be sure to do on this call:

  • Find out who they are – Write down their name and the company they represent.
  • Refuse to allow your statement to be recorded – One of the first things the insurance adjuster will ask is if they can record your statement. A recorded statement can be used as evidence against your case, and you have the legal right to refuse the recording.
  • Only provide basic information about yourself – This can include your name, address, and phone number. Remember, you don’t have to answer all their questions.
  • Only provide basic information about the accident – This may include time, date, location, and vehicles involved. Once again, you don’t have to answer all their questions.
  • Refer them to your lawyer – If you have hired a car accident lawyer, you can refer them straight to your attorney if they have further questions.

What You Should Not Say to an Insurance Adjuster

What you do not say to an insurance adjuster is critical to the outcome of your case. The adjuster is looking for any reason they can find to reduce the insurance company’s liability, and whatever you say can be used as evidence against you and could be used to minimize your claim. The less you say, the better, so keep the conversation as brief as possible and remember not the say the following:

  • “Sorry, it was my fault” – Whether or not you think you did something wrong, do not offer apologies or admit fault. Most accidents are caused by many variables, some of which you may not be aware of.
  • “Here’s what I think happened…” – The insurance adjuster will ask you questions about the cause of the accident. You need to state the facts but keep your answers brief. Do not speculate, exaggerate, or provide your opinion about who was at fault.
  • “I’m fine” – The insurance adjuster may casually begin your conversation by asking “how are you?” Even if you do feel fine, don’t tell them so. In some cases, a victim can be so shocked by an accident, that it takes a few days for injuries to present themselves through symptoms.
  • “My injuries include …” You cannot be sure of exactly how serious your injuries are until you have been examined by a doctor. When the adjuster asks what injuries you have sustained from the accident, tell them your lawyer will send them a list.
  • “Sure, you can talk to my doctor” – The adjuster may try to obtain details of your medical history to identify pre-existing conditions and injuries that can reduce the value of your claim. Do not provide any of these details or give them permission to access your medical records, even if they say they need this information to verify your injuries.

How CHASENBOSCOLO Can Help You

At CHASENBOSCOLO, we have helped thousands of car accident victims obtain hundreds of millions of dollars in compensation. Our compassionate and skilled attorneys are here to guide you through the complicated insurance claim process and advocate for your rights to help you obtain fair compensation for your losses. We offer a No Fee Guarantee so you can rest assured that you won’t pay anything until we recover money for you. Contact us at (301) 220-0050 today for a free consultation and learn how we can help you.

Don’t wait any longer. Call now.


It’s okay to admit you need help: Overcoming the stigma of mental health treatment

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Dec 17, 2018 | admin

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:

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.


What is My Case Worth and How is it Determined?

Sep 20, 2018 | Tom Teodori

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.


Tort Reform Myths

Aug 09, 2018 | Barry Chasen

$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.


Authorization Denied: When Health Insurance Becomes a Barrier to Treatment

Jul 23, 2018 | Ashley Strandjord

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 58th. 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.

The Life-Changing Impacts of Injuries

Jul 16, 2018 | Kyle Shoemaker

Many people may know someone injured in a traumatic event, such as a motor vehicle collision or a fall. However, many people don’t, or the people they know who’ve been hurt have kept this information private. As personal injury lawyers, it is our job to help others, particularly juries, to understand the real and meaningful ways that an injury disrupts the lives of our clients, particularly when that injury is caused by another’s actions and decisions.

As anyone who commutes in the Baltimore-Washington metro area knows, rear end collisions occur every day. Sometimes, the drivers and passengers involved walk away with no problems. Other times, they are not so lucky. To illustrate the unseen effects of injury, consider this relatively simple example for a car crash involving Gary. (To be clear, Gary is not a real person, he exists only for this example). Gary is 32 years old and works as a welder for a utility company. He is driving work on an ordinary Monday morning when, while waiting at a red light, his car is rear ended. The police are called, the parties exchange information and both vehicles are able to drive away. Gary goes on to work. After all, he doesn’t feel too badly immediately following the crash, and he has bills to pay and a family to support. Since Gary works for a utility company, his work is physical. He has to move and lift heavy tools, move large metal objects, and engage in other physical activity. As the day wear on, what began as tightness in his neck and back became worse.

To an outside observer, neck and/or back pain may not seem like something that is terribly serious. Someone who doesn’t have first hand experience with this sort of traumatic injury may think that a bit of neck or back pain is no big deal. And Gary himself may not know how serious the injury is. The true severity of an injury like Gary’s may not always be apparent in the immediate aftermath of the collision.

So let’s take a look at some of the ways in which Gary’s injuries will impact his life. To begin with the broadest view: he will experience physical pain. Back and neck pain can cause even the most mundane of movements to be painful. What will that pain actually mean to Gary in concrete, real life terms? What will that mean for his relationships, his work, his hobbies, his goals? Let’s break that down in more detail.

How Physical Injuries Effect Family Relationships

Gary is relatively young at 32 years old. He has two young children: a 3-year-old boy and a 4-month-old girl. As any parent can attest, caring for young children requires a tremendous amount of work, even on the good days. Now imagine that Gary has arrived home after a long day of physical work. Even without his injury, he is tired and probably a bit sore. Layer on top of that the pain and stiffness from Gary’s injuries, and all of a sudden playing with or caring for his children is a much more difficult task. No parent wants this kind of interaction turn into a physically painful and difficult experience. A three year old may not understand why Daddy doesn’t want to pick him up when he gets home from work. Imagine how that makes Gary feel when he sees the hurt on his child’s face when he tells them no, Daddy can’t carry you.

But that’s not the only relationship that suffers when someone is injured. These days, many two-parent households are ones where both parents have to work to make ends meet. This means that both parents need to find time to take care of ordinary household chores (anything from major home repairs, to everyday tasks like carrying in groceries) in between work, sleep, and taking care of the children. When one of those parents is dealing with some kind of physical injury, that division of labor can be upset. So an injured person like Gary, who is already trying to get better, may be dealing with the feelings that come along with feeling like he is not doing his part to keep the family operating day to day. Effects such as those described above can stress on a relationship, which might already be strained thanks to the daily grind of working and taking care of young children. This isn’t to imply that Gary’s wife (or the partner of any injured person) wouldn’t be understanding in a situation like this. But even “minor” neck or back injuries can have effects which can persist. When you add the psychological stress brought on by some of the other factors discussed, even the healthiest relationships suffer.

When Injuries Prevent You from Working

How do Gary’s injuries affect his work? As I mentioned, Gary is a welder for a utility company. This means he may be working outdoors. Or maybe he works in confined locations inside power plants. He may find himself bending, crouching, or climbing. Welding is a skilled trade that is in demand in many areas. Welders have the potential to make a decent wage, but the work is physical. If Gary is temporarily placed on a limited or off work status, his family will likely face financial hardship. Only 39% of Americans have enough savings to cover a $1,000 emergency. In the D.C. Metro area, there’s no way $1,000 covers rent or a mortgage; never mind utilities, gas, food… the list goes on and on. If Gary’s off work (or “disability period”) lasts a long time, or if he loses his job entirely, that financial hardship goes up tenfold – putting even more pressure on him and his family.

But that’s not all. Gary, like many Americans, takes a certain sense of pride and identity from his work, and from his ability to provide for his family. When an injury threatens Gary’s ability to go to work and provide for his family, more than just his job is threatened. Part of Gary’s very identity is threatened, and that is something that is impossible to put a price on.

When You Can’t Do the Things that Keep You Sane

Depending on what Gary likes to do for fun, his hobbies or recreational activities could be impacted by his injuries. If Gary enjoys physical activities like cycling, or playing basketball, or bowling with friends, he may not be able to do these things at all, or might find himself dealing with even more pain if he tries. But sports aren’t the only hobbies hampered by injury. Imagine that Gary enjoys working on cars as a way to enjoy his free time. If he has a neck or back injury that causes him pain, the last thing he will want to do after a long day of work is to get under the hood of a car. Further, if Gary is unable to spend times taking part in activities with his friends, those friendships may suffer, all because Gary was in a car crash. Even relatively stationary activities like reading a book can be affected if Gary’s neck or back pain make it difficult to sit in one position for an extended period of time.

Now, one may say that it is pessimistic to assume that all of these things will happen to Gary because he got hurt. But ALL of these things don’t necessarily have to happen to one person for that person’s life to be impacted in unexpected ways due to an unexpected injury. Even if just SOME of these things occur, that is enough to change a person’s routine, or make the challenges of daily life more difficult than they were before the injury.

What About Driving Anxiety?

All of these factors can combine with each other to create a profound psychological impact on an injured person, particularly through feelings of anxiety, fear, isolation, anger, or helplessness. Gary, or any other victim of a motor vehicle collision, may experience fear or anxiety related to driving. This can be crippling to a person who has to drive to meet their daily needs, such as going to work, shuttling children around, or running other routine errands. Additionally, a person who curtails their own driving due to fear or anxiety loses the freedom of mobility that comes with driving. This can cause a person to limit their engagement with other people in their lives and potentially grow isolated. Let us assume that Gary had a rich social life before being involved in his collision. If he doesn’t like to drive to different places and if it hurts to take part in physical hobbies, that social life is going to suffer. Through his diminished ability to perform his job, his inability to participate in the lives of his children, and his loss of ability to travel or do the things that he used to do for fun, Gary is left with a much different daily life than the one he enjoyed before. For a relatively young adult in the prime of his life, the feelings of isolation, the lack of control over one’s situation, and the uncertainty about one’s recovery can be overwhelming and debilitating.

Getting Medical Help

It may go without saying, but injuries like Gary’s will probably require some kind of medical treatment in order to resolve. As alluded to above, neck or back injuries from a car crash can be relatively minor, in the case of “soft tissue” whiplash injuries such as sprains. Or the same kind of crash may result in more serious injuries such as a disc herniation or even a fractured vertebrae. More serious injuries like this could even require surgical treatment if more conservative treatment measures turn out not to be successful. Surgery of any kind is risky even under the best of circumstances. Neuro surgery or orthopedic surgery carries with it risk of side effects, potential for failure, or other complications. Some injured people have good health insurance that can help ease the burden of the cost of surgery and follow up care, but other injured people may face the uncertainty of not knowing how such a bill will be paid. Still others may undergo surgery in an emergency setting and then get stuck with a huge medical bill with no way to pay it. Even assuming that a is successful, a person with a serious injury may never fully recover and may be left dealing with the effects of that injury for a life time.

But Why Do Injured People Need Attorneys?

So why do injured people need attorneys? Well, let’s look back at Gary’s case: The insurance company for the vehicle that ran into him wants to close his claim as quickly and as cheaply as possible. Gary is not in a position to truly understand the real value of his claim and the insurance company knows this. That’s why Gary needs an experienced attorney that’s looking out for him. Obtaining representation when you find yourself in Gary’s position is not about taking advantage of anyone or anything. It is about making sure that the insurance company (which makes a profit by finding a way to not pay a fair claim value) does not take advantage of a person who is in a rough spot. That is why it is so important for someone who’s been injured in a car crash, slip and fall, or some other circumstance caused by another’s carelessness, to contact an experienced and knowledgeable personal injury attorney to determine their rights and see if they need an attorney. Make sure you talk to someone who is looking out for you, and willing to go to bat for you when the insurance company tries to play games.

If you are reading this post and you’re lucky enough to have never been injured as the result of someone else’s negligence, I hope this information can give a bit of insight into what it’s like for someone who has had their life disrupted by circumstances outside of their control. If you have been injured in a car crash, a slip and fall, or as the result of another’s carelessness, I hope this has helped you understand why its important to at least consult with an attorney to help understand your rights and what you’re entitled to.

 


When It Happens In Your Town: What Survivors of Mass Shooting Events Should Know About Their Rights

Jul 10, 2018 | Ben Boscolo

This post was co-authored by Elizabeth Payne-Maddalena and Benjamin Boscolo.

Recently, a mass shooting event happened at the Capital Gazette in Annapolis, Maryland, not far from our Greenbelt office. Five Marylanders and committed journalists lost their lives when a gunman opened fire on the newsroom, and two more were seriously injured. Our hearts go out to the reporters who were simply doing their jobs when the shooter targeted them.  ChasenBoscolo stands with the Capital Gazette, Sun Newspaper Group and the Annapolis community.  

As of the posting of this blog, there have been 168 mass shooting events in the U.S. just this year. Unfortunately, as Americans know all too well, these events can and will happen anywhere. This number will continue to go up as long as lawmakers choose to ignore the root cause of the problem. In the meantime, those who are left behind – survivors and family members of those lost – have a long, arduous road to recovery that goes on long after the cameras leave and the attention of our leaders moves on to the next tragedy.

Many people do not know are their legal rights in the wake of these events. These rights vary from survivors left with physical injuries and mental scars, to the families left behind. Our hope is that this blog helps people understand what their rights are as they try to cope and heal. This isn’t just meant for those impacted by the Gazette shooting, or the Great Mills High School shooting, or the survivors in Parkland; but also the people who’ll be targeted in the inevitable next one.

Red Flags Ignored

When I was in college, back in 2007, I did a research project focused on the psychological mindsets of mass school shooters. One thing I discovered, which still rings true today, is that there are almost always warning signs of the coming violence – warning signs that many people, including people with the power to prevent the attack, knew about. In all of the mass shootings I studied, I learned that for a variety of reasons, these red flags are ignored. When the people in power ignored the warning signs, the result was the shooter being allowed to carry out his plans uninterrupted.

While these institutions or businesses may not have actually pulled the trigger, their choosing to turn a blind eye to the threat make them civilly liable for their negligence. That is what creates the legal right for survivors and family members of victims to bring civil lawsuits in order to be compensated for the damages they suffer as a result of the shooting.

Who has the right to sue?

The law only gives certain people the right to recover in these kinds of situations. Generally, the only people with the right to sue are those survivors directly impacted by the event, and certain surviving family members of those killed in the shooting. For those unfortunate people who were at the place where the shooting occurred, they can only recover if they are in the “Zone of Danger.”

Survivors of the Shooting

People who were actually present when the event occurred rarely walk away unscathed. They either suffer physical injuries from being shot or, more significantly, emotional and mental trauma, such as post-traumatic stress; or both. Survivors have the right to file civil lawsuits for damages to help pay for:

  • Hospital treatment
  • Rehabilitation and medical treatment
  • Psychological counseling and treatment
  • Expenses related to permanent injuries, such as making a home handicap friendly
  • Lost income due to injuries
  • Pain and suffering – both physically and mentally

Anyone with a physical injury has a right to be compensated for these injuries. This includes any mental or emotional distress, trauma, and treatment needed. Survivors have the right to be compensated for the previously mentioned costs and effects of the shooting.

But what about people that only suffered mental distress as a result of the shooting?

This is much more complicated. Generally, D.C., Maryland and Virginia first require that that the person was in the “Zone of Danger”. This means you were there, in the immediate area of the shooting (same room/floor/office) and were actually afraid of being shot.  Whether or not a survivor of a mass shooting is in the zone of danger is a very fact-specific determination.  To make things more challenge there are little differences in the law in Maryland, D.C. and Virginia that make it very hard to really break down the Zone of Danger here.  For example, each state and the District of Columbia have different rules about whether or not a person has to display physical signs or symptoms of their mental trauma to recover.  That’s why it’s absolutely essential for a survivor left behind with mental scars from trauma to talk to an attorney who is experienced with mass shooting cases.

Physical Wounds and Medical Treatment – Who Pays?

For many physically injured mass shooting survivors, the types of injuries they suffer require immediate emergency medical treatment. They’re taken from the scene straight to the hospital, by ambulance, helicopter, or, the backseat of emergency responders’ cars. For those with only minor injuries – broken bones and concussions from trying to escape the gunman – they’ll be quickly released. But survivors who suffer gunshot wounds face a long road to recovery, one that may take months, or even years.

Either way, a trip to the hospital alone costs thousands of dollars, money most Americans simply don’t have. Survivors who needs extensive treatment are faced with tens or even hundreds of thousands of dollars in medical bills.  So who pays for it? And who should pay now?

If you’re lucky enough to have health insurance, you should absolutely use it to cover the bills now. Many people think if they think they use health insurance, they can’t claim those medical bills paid for by their insurance in their cases. That is untrue. You can still claim those medical bills. Ultimately, the negligent party should pay for the medical bills, but in order to protect yourself in the meantime, health insurance can step in and pay for the care needed for recovery.

The Scars of Trauma – Getting Psychological Treatment

Immediately after a mass shooting event, local charities and organizations do a great job offering survivors grief counseling and making sure mental health hotlines are available. But for many, regardless of whether they were physically harmed in the shooting, the mental and emotional aftereffects last far longer than a few weeks – and require more help than what these resources can offer.  Victims deal with everything from survivor’s guilt to flashbacks, nightmares, and panic attacks. Some survivors find that the mental effects can be even more devastating and harder to heal than their physical injuries.

Luckily, grief counselors and crisis hotlines are incredibly helpful for finding mental health providers that specialize in helping trauma survivors. Be sure that whoever you see is experienced in dealing with post-traumatic stress.  It is even better if they’ve helped survivors of mass shooting events before. Either way, getting help as soon as you can is extremely important to help you process and recover from the trauma you’ve endured.

Just like with medical treatment, if you have health insurance, mental health treatment should be covered.

For Those Left Behind – Wrongful Death and Survival Claims

Unfortunately, many mass shooting events result in the loss of innocent lives: children, parents, friends, co-workers, brothers and sisters taken far too soon in an act of violence. Left behind are heartbroken family members and loved ones struggling to fill the holes left in their lives. They’re suddenly planning for funerals, which, according to https://www.parting.com, cost between $7,000 and $10,000. Many victims of mass shootings are young people, meaning they hadn’t financially planned for their deaths, leaving their loved ones shouldering heavy costs. When a parent is killed, the loss of income can devastate a family. This financial loss is magnified by the sudden and violent loss of their loved one and the accompanying public attention.

In these situations, there are two kinds of claims certain family members can bring: wrongful death claims and survival claims.  Let’s briefly explore these together

Wrongful Death claims:

A wrongful death claim is a claim brought by certain family members of the departed person which allows them to be compensated for the loss of their loved one. Only certain family members have the right to bring these kinds of claims. Those who have these right depends on whether or not the victim was married and has children, as well as surviving parents, brothers and sisters.  Finally, the people who have these rights differs between Maryland, Virginia and the District of Columbia. This is another reason it is important for surviving family members to talk to an experienced, knowledgeable attorney.

Wrongful death claims allow the family to be compensated for the following losses:

  • Any medical bills for treatment to the departed person as a result of the shooting
  • Funeral expenses
  • The loss of current and future income the victim would’ve earned
  • Grief, pain and suffering that the family endures from the loss of their loved one, both past, present and in the future.

One particularly tricky part of wrongful death claims is that (generally), the law only allows one claim to be made for all the family members who have the right to bring these claims. That means that everyone who wants to bring a claim, or wants to bring a claim, needs to be part of one action. Maryland requires all of the family members with the right to be a named party in the case, even if they do not want to participate or bring a claim at all. It’s important for close family members to discuss this option together, and keep the lines of communication open. Some families pick one person to be the main point of contact for any discussions with an attorney.

Survival Claims:

The other kind of claim available are survival actions. This is for the actual pain and suffering the deceased victim suffered during and after the shooting but before they pass away. This includes their fear as they realized what was happening, as well as when they realized that they were not going to escape unscathed. If the victim was unfortunate enough to survive after being shot – even if it was for just a few minutes – these claims also allow damages for their pain, anguish and suffering during their last moments.

Unlike wrongful death cases, survival claims are brought on the behalf of the victim’s estate – the legal entity that exists after a person dies. Any compensation is then paid to satisfy any of the victim’s outstanding debts, and then to any people who get to inherit from the estate. Who runs the estate (the “personal representative” or “administrator”) and who gets to inherit depends on a couple of things. First, whether or not the victim had a will. Second, if there was no will, who the law allows to serve as a representative. The family members who can inherit again depends on the law of the state where the mass shooting event occurred and whether or not the victim was married or a parent.

The Challenge of Proving Negligence in Mass Shooting Cases

These cases aren’t easy. There are a lot of weird legal nuances, as well as factual, evidentiary, and societal hurdles that survivors and the families of the victims have to face. We do not want to discourage anyone from exploring their rights, we just want to be completely honest and candid.

We’ve already hinted at some of these problems: proving that the survivor was actually in the zone of danger; overcoming laws limiting the kinds of actions survivor with only psychological injuries can bring; making sure all the right people are named and involved in wrongful death lawsuits. But there are a couple other big issues that we haven’t talked about.

Notice

Ok, so, as we mentioned above, these cases center around the ignored red flags around the shooter and his behavior before the shooting occurred. This brings up an obvious point: we not only have to prove that these red flags existed, we also have to prove that the entity we think is responsible knew about these red flags. Then we need to prove that the responsible entity chose to ignore the red flags, allowing the shooter to take his plans and turn them into a tragic reality.

We also have to prove that the responsible entity that knew about the red flags had a legal responsibility to protect the people who were eventually targeted. Not a moral responsibility, but a legal one. This is a very fact-specific determination (like so many other things in these cases) and is something an experienced attorney can definitely help you figure out.

Suing the Shooter Directly

There’s a very obvious party we haven’t talked about yet: the shooter. After all, he’s the one who pulled the trigger, he’s the one who chose to take the lives of innocent people.  Why aren’t we going after him?

The very simple reason is that these cases – meaning civil cases – only allow us to get our clients monetary damages. That’s the way the law works. Period. So, when there’s no money available to get – these cases are just simply not worth our clients’ time. It is not worthwhile for them to go through years of litigation (yes, we do mean years) to get nothing but a piece of paper in the end saying they won. There’s no question of who was in the right or the wrong here: we all know the shooter did something unspeakably evil.

So when we sue a shooter, unless they were a multi-millionaire, there’s nothing for our clients to collect. Homeowner’s insurance doesn’t cover these cases. Their contracts specifically deny coverage for intentional crimes like this.  That’s why we’re not talking about suing the shooter themselves: because we don’t want to force survivors and grieving family members to go through all this for nothing in the end.

The other reason is that when an entity picks to ignore a red flag, they are responsible. They made a choice, and then decided for some reason not to warn anyone, not to do anything to try to stop the shooter, limit the risk he prevented, or add extra security or safety to keep people safe. They didn’t pull the trigger, but their silence makes them complicit.

Immunity

One of the most important things to remember is that depending on the situation and where the shooting took place, there may be laws in place that shield those at fault from civil liability. This is called “immunity”, and who has immunity depends on what state the shooting occurred in. This is a very fact-specific determination, and is why it’s important for survivors and family members to talk to experienced lawyers who know what to look for.

One group of companies that families and survivors often believe should be held responsible are gun manufacturers. Unfortunately, Congress passed a law giving gun manufacturers total immunity from civil lawsuits, meaning these companies are legally shielded from responsibility. The only way that will change is if the law itself is changed.

If you have been the victim of or lost a family member to a mass shooting, it is important for you to contact a trial lawyer who is experienced in handling cases arising out of mass shootings. No matter what, we hope this blog has helped you get a better idea of what rights you have, legally, as you begin the long process of picking up the pieces left behind.

Last Updated : October 20, 2020