MEDICAL MALPRACTICE FAQ

Call Greg Sandler as soon as you are feeling safe and secure after your collision. We find that the earlier that you speak to us, the better able we are to help you by preserving evidence, helping you with the details of your car repair, rental vehicles and in your dealings with the insurance companies. It is always better for us to speak with the other driver’s insurance company than for you to do it. Often we find that insurance adjusters are interested only in settling the case quickly and cheaply, without regard for your real best interests. They are not in this business to pay out money. We make sure that you get the advice and direction that benefits you, not the insurance company’s profits.

Your doctors are there, first and foremost, to make sure that you are properly diagnosed and treated for your injuries, so that you can be returned to your pre-crash state of health. You MUST be honest with them. They need to know: What you hurt in the crash When any symptoms developed AFTER the date of the crash Whether symptoms are better or worse on the date of your visit. Describe what happened to your body in the crash (position, movements, striking body parts on the car, etc.). Don’t overestimate your injuries or complaints. Make sure the doctor knows about ALL PRIOR injuries to the body parts that were injured in your crash. It is critical that your doctor know whether you have suffered a prior injury, so they can properly assess and treat it as either a new injury or an aggravation of a pre-existing condition. Let the doctor know about any other doctors that are treating you, so there is not a duplication of treatment or a conflict in treatment methods. Make sure your doctor’s office knows of your health insurance sources, including worker’s compensation, so that it can be properly billed. If the doctor’s forms request that you indicate whether you were in a collision, or whether you have an attorney, be honest with them and, if you have already retained The Sandler Law Group, then include that on the form.

The selection of a doctor is a very personal decision, just like the selection of a lawyer. You should give consideration to the following in selecting a doctor or other medical treater for your injuries: Whether this physician is your regular family doctor. You should use someone who is familiar with you, your body and your medical history, and they are in the best position to know whether your complaints and injuries were caused by the collision, or attributable to some other cause. Whether your health insurance plan covers the treatment and the medical provider. Increasingly, HMO plans and other health insurance plans, are limited in who you must see, whether you can see a specialist without a referral, whether there are limits on the annual cost for therapy, etc.. You should use someone who is covered under your plan. Just as there are progressive and conservative philosophies in your profession, there are physicians who have progressive and conservative ideas about treatment. Some physicians choose not to treat patients when it appears that they may have to become involved as a witness in your case. We encourage you to find out about the position of the medical practice on their role in your case. Medical evidence and opinions are critical in every personal injury case, and although we will not direct or dictate your medical care, it is important to know whether the medical providers you select are willing to cooperate with us in your case, if necessary.

If there is not likely to be a claim against you, claiming that you were at fault in the collision, then the focus of the contact should be with the other insurance company, and you will not have to automatically put your company on notice of your crash. There are exceptions however, and we will advise you accordingly. In certain circumstances it will be necessary to notify your insurance company to get your car fixed or to obtain a rental car, if the other driver has not informed his company in a timely manner, or if the other insurance company is still investigating the claim. We will help you with this contact with your own carrier, so that you do not provide them with information that may hurt you later in the process.

YOU SHOULD ABSOLUTELY NOT PROVIDE A RECORDED STATEMENT TO THE OTHER INSURANCE COMPANY. As a general rule, the Sandler Law Group will provide the other insurance company with all the information that they need. Once we send a representation letter on your behalf to the insurance company, they should not contact you again without our permission. This saves you from pestering calls about your injuries, and pressure to settle your case quickly, but for small value. If you feel the need to initially report the collision, we recommend that you simply tell the insurance adjuster that you were involved in the collision, that you are making a claim, and then tell them that you either are, or will be, represented by Greg Sandler, at the Sandler Law Group, 295 Bendix Rd., Suite 210, Virginia Beach, Virginia, 23452, and that they can reach us at 757-627-8900. We will take it from there.

The cost of a temporary replacement vehicle, a rental car, is part of the damage claim that is generally made as a result of your collision. If the other insurance company is responsible for the collision, then they usually will provide you with a rental vehicle for the period of time that it takes for your car to be repaired, if it can be repaired, and for the time it takes the company to value the car and pay you the value, if the car is to be totaled. The limit is usually 30 days, and the company is only obligated to provide a substitute vehicle, which may, or may not, be the same size and quality as your damaged car. If there is a dispute over the fault, or a delay in investigating the claim, or if the other driver is uninsured, then we may have to speak with your insurance company and look at your policy to determine whether you are entitled to a rental vehicle, and whether there is a cost.

Occasionally my client’s will tell me, “The Adjuster told me to send them the bills and they would see that they got paid”. DON’T YOU BELIEVE IT. Medical bills are part of the “package” of damages that you may be entitled to recover as a total settlement of your claim. Therefore there are 4 main sources of potential payment for your medical bills. First is to pay them yourself as you go. Many times this is the only avenue available to secure care during the period of time after your crash. Second is payment through your health insurance plan. This is the most preferable way to get your bills paid, and while you may think “its not fair” because someone else caused your injuries, keep in mind that you have paid premiums for that coverage and it is yours to use. Third is through medpay coverage under your own automobile policy. If you have purchased this coverage before the date of your collision, it can be used as a source of reimbursement for your medical expenses. This method requires that we obtain the records and bills for your care, after it has been delivered to you, and then we submit them to your insurance company for reimbursement. Lastly, your medical bills will likely be paid from the proceeds of your settlement, after the conclusion of your case.

Lost wages from your job or jobs is a part of your damages. It does not matter whether you used sick or vacation pay, as you are still suffering a loss. We will contact your employer and obtain a statement from them that outlines your lost dates of pay, the pay base rate and what your duties are. This information is submitted by us to the insurance company, in support of your claim for damages. In addition, if your injuries are expected to be permanent, or they will affect your earning capacity in the future, those lost future wages may also be a part of your claim.

We try to help our client with the process to get their car repaired, and most of the time this is accomplished without an incident or problem. The damage to the car is part of the damages that you are entitled to recover under the law, and usually the other driver’s insurance company will contact you about having the vehicle looked at or “adjusted” by their representative. This consists of preparing an estimate of the damages and the amount that it will take to fix it. You are not entitled to have them build you a new car. Rather, you are entitled to putting the car back into the shape it was in before the crash. You are free, under Virginia law, to select the repair facility of your choice and most insurance companies will work with the rate structure for that facility. If the repair shop finds that additional work is necessary after the estimate is prepared, they will contact the insurance company for additional authority. If the cost to repair the damages exceeds 74% of the value of the car, as determined with reference to the Kelly Blue Book or NADA book, then the insurance company will likely total the car. When that happens, you will receive the value of the car less the salvage value and the insurance company will take the title to the car and dispose of it.

If you are a passenger in someone else’s vehicle, who you recover from depends on who is responsible for the collision. As your counsel, it is my responsibility to seek a recovery against all persons who may be responsible, since you clearly were not. Therefore, some of the time it will be necessary to make a claim not only against the other driver, buy against your driver as well. I realize that this may cause you some difficulty, particularly if your driver is a relative or friend, and there is no requirement that this be done. A careful discussion with your lawyer will help you decide your best course of action.

The law defines negligence as “the failure to use ordinary care”. In the context of automobile collisions, every driver has several basic obligations and the failure to comply with them causes that driver to be negligent. Every driver has the duty to keep a proper lookout, to operate their vehicle under control, to operate their vehicle in accordance with the laws and ordinances applicable (such as speed limits, traffic signs, rules of the road, etc.). You cannot recover for your damages unless and until we can prove that someone else was negligent and that negligence was the cause of your injuries.

Contributory negligence is the killer legal concept for Plaintiffs in Virginia. Very few states have retained this concept and it is used by the other driver and their insurance companies to escape clear responsibility and fault. Quite simply, the concept of contributory negligence says that, even if the other driver is 99% at fault, if you are even 1% at fault in causing your collision, then YOU CANNOT RECOVER AT ALL. The Court and the jury is not permitted to weigh the negligence of the parties, and adjust your recovery accordingly. It is an “all or nothing” concept, it unfairly allows bad drivers to escape liability, and if you feel the same way, contact your state representative and ask them to change the law.

All law suits for damages from automobile collisions must be filed no later than 2 years from the date that the injury was inflicted, usually the date of the collision. This is called the statute of limitations and if you allow it to expire, you will never be able to obtain a recovery for your injuries.

We always recommend that you wear your seat belt, as it has been proven to reduce injury and save lives. In addition, it is the law in Virginia. However, some drivers either forget or disagree. There is a specific law in Virginia that prevents the other driver or their attorney’s from raising your failure to wear a seat belt as a defense to your injuries. It simply will not be discussed.

A common misconception among clients is that if a person receives a ticket from an officer, then that person must be at fault. This is not correct, and the fact that one of the parties in a crash receives a ticket is rarely admissible at any trial concerning the crash. A ticket is simply the officer’s belief at the time that one of the drivers has violated some traffic statute. The burden of proof in a traffic case is “beyond a reasonable doubt”, whereas the burden of proof in your civil case is “preponderance of the evidence”. Basically it takes more to prove a traffic violation than it does to prove negligence. Unless the other driver pleads guilty to the offense, it will not be admissible in your case. It may however help to sway the adjuster in negotiations to settle your claim, so we will investigate the outcome of any ticket that the other driver gets at the time of your crash.

Virginia law directs that a jury may, in considering the amount of any verdict in your favor, consider any of the following: Bodily injury you suffered and its effect on your life Medical Expenses incurred in connection with your injuries Lost Wages Pain, Suffering, Mental Anguish Permanent disability Scarring, humiliation and emotional harm All of the foregoing, for the remainder of your life, if the injuries are permanent No one can tell you “what your case is worth” because it requires an analysis of all of these damage elements, after your treatment has concluded, and factors in all of the elements that may affect the jury’s decision at trial. When you have completed your treatment, or reached a maximum point of improvement, we will discuss with you each of the elements of your damages, and all of the factors that we must consider in making a recommendation to you about the value of your case and your prospects for trial.

Under every automobile policy written for a vehicle garaged in Virginia, there is coverage identified as Uninsured Motorist (UM). This is the least understood portion of your policy, and, in my estimation, the least discussed by your insurance agent. Contrary to popular belief, this does not cover some other uninsured driver. Rather, this important element of your policy covers YOU AND YOUR PASSENGERS for injuries and damages that YOU AND YOUR PASSENGERS suffer when hit by either a person without insurance, or by a hit and run driver. Once it is proved that the identity of the driver that hit you is unknown, or that the driver has no insurance, then YOUR policy for uninsured motorist coverage kicks in to provide you with insurance, without your fault, as if the other driver was insured. For this reason, you may look at UM coverage as insurance you buy to BENEFIT YOU, not to benefit someone else. Therefore BUY AS MUCH AS YOU CAN AFFORD. UM coverage is sold along with your liability coverage, and so if you have the Virginia minimum limits of $25,000 for liability, you will also have $25,000 in UM coverage. Here’s the surprise!! Buying $100,000 in coverage (remember its to protect you), only costs about 15%-20% more than buying $25,000, and you get 4 times the protection. Now you know why insurance agents don’t like to tell you about it.

Do Not Sign Anything that an insurance company sends you without speaking with an attorney first. You may be signing a Release document that ends your case whether your treatment has concluded or not. You may be signing a document that gives the insurance company permission to obtain every medical record that you have ever had, whether it is related to the claim or not. Only an attorney, experienced in personal injury litigation, like Greg Sandler at the Sandler Law Group, can properly advise you on the effect of these document.

One of the most difficult issues for clients to come to grips with, is the totaling of their car, when there remains a loan outstanding. The law includes the damage to your vehicle as a proper element of harm, if the vehicle is totaled. Value, however, has nothing to do with any loan that you may have taken out to either buy or refinance the car. Some times client’s find that they owe more on the car, to the finance company, than the value of the car. The insurance company will only pay to you the value of the vehicle, and if there is a loan outstanding, they will write a check to the finance company to pay against the loan, so that the title can be released to them and the car disposed of. If you still owe money to the finance company, after the payment by the insurance company, there is no opportunity for you to recover that excess debt obligation from the person that caused the collision.

The portion of your claim that surrounds the payment for the damages to repair or replace the car, are separate from the portion of the claim for your bodily injury. Most of the time, the other driver’s insurance company will pay for your repairs long before you have completed treatment for injuries, and the property damage claim may be settled, and the check accepted by you, WITHOUT prejudging your bodily injury claim. As indicated, your should have your attorney review any documents that the insurance company asks you to sign. Furthermore, the insurance company can accept responsibility for the repair of the vehicle and pay for those repairs, and still deny your bodily injury claim. I know it sounds inconsistent, but it happens. If it does in your case, we are there to explain why and to discuss the effects of the property payment on your chances of success in court.

If your collision occurs while you are driving while on the job, you may have a worker’s compensation claim, since your injuries were work related. If the person that caused your harm has nothing to do with your job, such as an unrelated driver who hits you while you are in a company car, then, IN ADDITION to the worker’s compensation claim, you will have a separate automobile liability personal injury claim. There are a number of special considerations that must be attended to in this situation and Greg Sandler at the Sandler Law Group is well versed in handling the inter-relationship between the worker’s compensation case and the personal injury case, so that your rights are protected and your full recovery secured.

Although you may want the other driver who caused your injury to pay for your lawyer, Virginia law does not provide for that benefit. In most personal injury claims, ESF enters into a written retainer agreement with our clients under which we agree to work for you for a contingency fee. This means that we will not receive a fee unless we are able to obtain a recovery for you. If we do, our fee is a set percentage (usually one-third) of the amount that we recover for you. This method of payment gives the client access to an attorney without having to incur substantial legal fees to try to recover, and protects the client from fees, if the client is not successful in their case.