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Entries in personal injury procedure (7)

Tuesday
Nov252014

Personal Injury: The "Independent" (Defense) Medical Examination Required By Law

Injury Attorney Los AngelesPersonal Injury Attorney

by David B. Bobrosky

(818) 907-3254

 

This is part of a series of blogs that discusses what a client can expect during various stages of a personal injury case. This post addresses what happens when the defense has the Plaintiff examined by a doctor in what is incorrectly referred to as an “Independent Medical Examination.”

 

Any personal injury Defendant has a right to have a Plaintiff examined by a doctor of the Defendant’s choice. The law places two main conditions on the examination:  

  1. The examination may not include any diagnostic test or procedure that is painful, protracted, or intrusive; and

  2. The examination must be conducted within 75 miles of the Plaintiff’s residence.

Personal Injury Medical Exams

Whenever a Plaintiff claims continuing injuries, the Defendant will have the Plaintiff examined by the Defendant's doctor of choice.

The doctor will usually match the same type of doctor that the Plaintiff has been seeing to treat his or her injuries – if the Plaintiff has been seeing a neurosurgeon for example, the Defendant will usually require the Plaintiff to see their own neurosurgeon.

The Defendant may also ask the Court to have the Plaintiff examined by multiple doctors if the Plaintiff has multiple injuries that are being treated in different areas of medicine. Most of the time, the Courts will allow examinations by multiple physicians – especially if the Plaintiff will be calling multiple doctors at trial to testify.

 

A Defense (Not Independent) Medical Examination

This examination has often been referred to as an Independent Medical Examination (IME). However, there is nothing “independent” about it. The physician is not neutral.  S/He is hired and paid for by the defense – usually the insurance company.

The doctor examines the Plaintiff, writes a report and then testifies on behalf of the defense. Usually this is a doctor who has been hired by the insurance company many times, and is an advocate for the insurer. Many of them earn hundreds of thousand dollars to over a million dollars per year working for the defense and testifying against Plaintiffs.

This is usually much more money, for much less time, than the doctor makes in his or her main practice. That is why it is more accurately referred to as a “Defense Medical Examination.”

 

What To Do When the Defense Requires an IME

Insurance Medical ExamIf a Plaintiff's attorney receives a notice to have the Plaintiff examined, the first thing that the attorney will do is ensure the physician is of the same discipline of the doctor that has treated the Plaintiff. If the attorney believes that the examination is noticed properly and will proceed by law, the attorney should respond with a written notice with conditions of the examination.

If the examination is not properly noticed (too many examinations, not a correct medical discipline, too far from the Plaintiff's residence, etc.), an injury attorney can send a written objection. Separate conditions apply to mental examinations, which will be addressed in a future article.

 

Attending the Examination

The Plaintiff should never attend the examination alone.

Some attorneys attend the examination with the Plaintiff. Other attorneys send an “observer” with the Plaintiff – sometimes a nurse or someone else with medical training to record the type of tests performed by the insurance doctor. There are pros and cons to each.

The examination may be audio recorded by either the Plaintiff or the doctor. Whether it’s the attorney or an “observer”, it’s imperative that someone attends with the Plaintiff.

 

At the Defense Examination

The Plaintiff should never fill out any paperwork at the doctor’s office.

There is no requirement to do so, and will only be used against the Plaintiff. Despite the fact that it’s not required, almost every office will attempt to have the Plaintiff complete paperwork.

Either the doctor or a “historian” will take an oral history of the accident and injury. Some attorneys do not allow their clients to give any history whatsoever. Others allow a brief history regarding the specific injury or treatment—just enough to allow the doctor to perform an examination.

During the history and/or examination it is important to remember that no matter how charming the doctor may seem, s/he is an advocate for the defense – with financial incentive to downplay the seriousness of the Plaintiff's injury.

It should go without saying that if the Plaintiff answers questions, the Plaintiff must do so honestly.

The Plaintiff must always put forth 100 percent effort during the examination. S/he may be asked to perform certain physical tests, i.e. bending, squeezing, rotating joints, etc.  Besides it being dishonest not to participate to the best of injury victim's ability, the insurance doctors are trained to spot a lack of effort or attempts to exaggerate or fake pain.

 

Report and Record Review

The Plaintiff's attorney will demand a copy of any report generated by the Defense's doctor. This usually includes the main report of the examination, which should set forth the tests conducted during the examination and any opinions or conclusions reached by the doctor.

Many times, the insurance company will send medical records to the examining doctor to review. The doctor will then also produce an additional report called a Record Review.

In this Record Review, the doctor summarizes the records and comments regarding the treatment of the Plaintiff. It is extremely important to make sure the attorney for the Plaintiff obtains both the Report and the Record Review, as the doctor will often bury most of his/her critiques and important opinions in the Record Review.

Being adequately prepared for the Defense Medical Examination will lead to the Plaintiff’s attorney properly dealing with the Defense doctor at deposition and/or trial. Cross-examining a Defense Doctor will be addressed in a separate blog.

 

David B. Bobrosky is an experienced Personal Injury Attorney. Contact him via phone: (818) 907-3254 or by email: dbobrosky@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Jul232014

What Happens in a Personal Injury Case During a Deposition? 

Injury Attorney Los AngelesPersonal Injury Attorney

 

by David B. Bobrosky

(818) 907-3254

 

In part three of this Injury Claims Process series, I blogged about What Happens When an Injury Lawsuit Is Filed. We covered quite a few topics in that one, including injury litigation depositions. This post will take a deeper look into what happens at a deposition.

Personal Injury Depositions: Follow the four basic rules given below.Giving a personal injury deposition can be a little intimidating for our clients. In fact, other than testifying at trial, it is usually the most stressful part of the case for the client. But it doesn’t have to be.

I often hear that clients are afraid because he or she knows the defense attorney is going to try and “trick them.” Yes, the attorney’s job is to weaken your case wherever possible. However, if you are honest and answer the questions based on your own knowledge, the power is on your side.

 

What is a Deposition?

A deposition is a question and answer session between you and the attorney(s) on the other side. It is the only chance to speak to you directly prior to trial.

Your attorney is there to defend you by objecting to improper questions and to help control the situation. A court reporter is present taking down everything that is being said in the room, so be very careful about what you say at all times.

 

Preparation for a Personal Injury Deposition

You should meet with your attorney prior to your deposition. Your attorney will go over ground rules for the deposition, discuss the general areas to be covered, review the facts of your case with you, and highlight any issues that may be a problem. Remember everything discussed with your attorney is privileged and cannot be disclosed to the attorney.

 

Basic Ground Rules for the Deposition

  • Oath – You will be given an oath by the court reporter which is the same oath you would be given in court. Therefore, even though you’re typically in a conference room, your testimony is being given under the penalty of perjury just as if you were in court.

  • Don’t Guess – If you do not know an answer to a question DO NOT GUESS. Guessing will only get you in trouble. If you do not understand a question, let the attorney know that you need it rephrased.

  • Don’t Ramble – Answer only the question you are asked. Do not add to it if you do not need to.   If you can answer the question “yes” or “no”, do so. If you need to explain an answer to benefit your case, do so. The deposition is a fact gathering session for the other attorney – it is not your day in court.

  • Take a Break – Depositions are not endurance tests. If you need to break to use the restroom, get something to eat, or just re-group, you can do so. Just let your attorney know.

 

What Will the Defendant's Attorney Ask in an Injury Deposition?

Personal injury depositions generally follow a certain pattern, which of course, can vary by attorney and case. Typically, the following areas are covered:

  • Personal/Educational/Employment Background – The attorney will gather basic personal information. For example, are you married?  Do you have children?  Who were you living with at the time of the accident?  This may lead to potential witnesses to determine what you were like before the accident, as well as after the accident. Educational and employment information is always asked, and is covered in much more detail if there is a loss of earnings or earnings capacity claim.

  • Facts of the accident – Whether it involves a trip and fall, a defective product, or an auto accident, you will be asked questions about how the accident occurred. Your attorney will prepare you on the important issues regarding the accident.

  • Injuries and Medical Care – You will be asked, in detail, what injuries you suffered and what you were feeling at different points in time. You will also be asked very detailed questions about your medical care and future prognosis. It is important to go over your medical records in preparation for your deposition. You do not need to know on the exact date you saw each doctor, but you need to generally know which doctors you saw, in what order, and what care you received from each. You will also be asked what activities you cannot do since the accident and how the injuries have affected your life in general.

A deposition does not have to be stressful, and it certainly shouldn’t harm your case. Be prepared, be honest, and be credible, and you will be fine.

David B. Bobrosky is an experienced Accident Attorney in our Personal Injury Practice Group. Contact him directly for more information: dbobrosky@lewitthackman.com; (818) 907-3254.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May282014

What Happens in a Personal Injury Case After a Lawsuit is Filed?

Injury Attorney Los AngelesInjury Litigation Attorney

by David B. Bobrosky

(818) 907-3254

 

This is part of a series of blogs that discuss what a client can expect during various stages of a personal injury case. This post addresses what happens after a lawsuit is filed.

Have you ever heard someone refer to a case as being in “litigation”?  Well, if your attorney files a lawsuit in your case, you will be in “litigation” – it's simply the process of suing someone.

NOTE:  being in “litigation” and going to trial are not synonymous.

Personal InjuryAn overwhelming majority of the cases in which lawsuits are filed never go to trial, as they are settled prior to that point. When they do go to trial, it will usually take at least 12-18 months to get to that point, if not longer. So if you hear that your attorney has filed a lawsuit, don't panic. You are not automatically headed to trial.

Prior to filing the lawsuit, your attorney was most likely dealing directly with an insurance company and its adjuster. (Read the first post in this series: What Happens in a Personal Injury Case After You've Hired a PI Lawyer? Once a lawsuit is filed, the process changes and your injury lawyer will deal with an attorney for the insurance company.

Personal Injury Litigation:
Service of the Lawsuit 

The first step after filing the lawsuit with the court is to literally put the lawsuit in the defendant’s hands. This process is known as serving the lawsuit, and in most cases the courts require the lawsuit be served personally to the defendant.

Your PI attorney will hire a registered process server to go to the defendant’s home or work and attempt to personally give the defendant the paperwork for the lawsuit. Depending on how many defendants there are in your case and how difficult it is to find and serve the defendants, this process can take several weeks, if not more.

Once a defendant is served with the lawsuit,he or she generally has 30 days to formally respond in court. A defendant who is served with a lawsuit should immediately turn the paperwork over to his or her insurance company, assuming there is insurance coverage.

The insurance company will then either assign in-house counsel to handle the case, or hire an outside attorney for defense. In either situation, the attorney who is selected will now be officially representing the defendant.

The Discovery Process

Once the defendant responds, both parties can proceed with the litigation. The next step involves written discovery. This is where the parties attempt to get information from each other through a series of written questions, written requests for the other side to turn over relevant documents, and written requests for the other side to admit certain facts regarding the case.

Your role in the process will generally be in providing answers – to the other party’s questions, and in gathering documents for your attorney.

Many times attorneys will merely exchange e-mails or letters with the client, or maybe have an assistant meet with the client, to obtain the requested answers. In our office, whenever possible we prefer to meet personally with you to go over the requested information and discuss the answers to be provided. This is yet another opportunity for us to meet face to face with each other to discuss the case, and for us to continue to learn about you and what you’re going through.

Injury Litigation Depositions 

After the written discovery phase, the parties continue to discover information about the case by taking depositions. A deposition is the only time before trial that the other attorney can directly ask you questions prior to trial.

I will explain the deposition process in detail in a later blog, but remember, this is not your “day in court.”  This is the time when you respond to questions asked of you by the other attorney. Your “day in court” will come later in trial, if your case gets to that point.

Defense Medical Examinations

After your deposition, if you are either still receiving medical care or experiencing any symptoms from your injuries, most defense attorneys will have you evaluated by a doctor of their choice.

Although this is officially referred to as an “Independent Medical Examination,” there is nothing “independent” about it. The supposed “independent” doctor is hired directly by the insurance company's attorney to give the opinion the insurance company wants to hear: that your injuries are minor, nonexistent, or not related to the accident caused by the defendant. This is why most plaintiff attorneys typically refer to this as a Defense Medical Examination. I will discuss this in further detail in a future post as well.

Injury Settlements

Once all parties have obtained enough information, we will be in a position to discuss a settlement. Such discussions can occur informally between the attorneys, or in a more formal setting of a Mediation or Mandatory Settlement Conference. In personal injury mediations or settlement conferences, a neutral third party – an attorney, retired Judge, or active sitting Judge – will assist the parties in trying to reach an agreement.

If, and only if, the parties are unable to reach a settlement, will the case go to trial. Again, this will be at least a year after filing the lawsuit, and in most personal injury cases in Los Angeles, more likely 18 months or more after initially filing the lawsuit.

So when you hear your attorney say that a lawsuit has been filed in your case, stay calm. As you can see from the above, there are many steps to be taken, and much time will pass, before your case will go to trial, if it ever does.

What happens when you go to trial? I'll tackle that question, as well as several of the procedures discussed above, in greater detail in future postings.

 

David B. Bobrosky is an experienced Accident Lawyer and Shareholder in our Personal Injury Practice Group. Contact him for a free consultation: (818) 907-3254 or dbobrosky@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May072014

What Happens in a Personal Injury Case Once You’ve Completed Your Medical Treatment?

Injury Attorney Los AngelesLos Angeles Injury Lawyer

by David B. Bobrosky

(818) 907-3254

 

This is part two of a series of blogs that will discuss what a client can expect during various stages of a personal injury case. This post addresses what happens after completing medical care.


The first installment in this series, What Happens in a Personal Injury Case After You’ve Hired a PI Lawyer, looks at the initial steps both you and your attorney take in the first phase of the case. But what happens after you’ve completed medical care?  

Personal Injury Cases: Communication is Critical

Personal Injury Medical CareFirst, you need to make sure you continue with medical care and therapy until you and your doctors believe you are either fully recovered, or that there is no further treatment that could help you. If you and your doctors disagree regarding this issue, make sure you let us know so we can give you the proper legal advice in that situation.

Once you are discharged from further care, tell us. We will begin collecting all of your medical records and bills so you can move forward with compensation.

If you’ve sustained basic injuries and merely have chiropractic treatment, this can be a quick process. If your care has been more complicated and you have treatment with multiple medical providers, it's a more time-consuming process. Many hospitals and doctor’s offices will require us to send a professional copy service to obtain your records. This extends the time and cost of obtaining your records.

As we’re gathering records, we always tell clients to ease back into their pre-accident lifestyle to see how their injuries react to regular, daily activities.

Many times, once treatment is done and clients are active again, injuries can flare up and we realize further treatment is needed. This is why we wait at least a month or so and check in with the client again and make sure they are still feeling well and have not had any recurring problems.

Once your recovery is certain, we will review your records and send a demand package to the insurance company asking for a certain amount to settle your case.

You should know that the type of demand package varies with the quality of your attorney. Less competent attorneys – those just looking for a quick settlement (generally not a good idea, watch the video below to find out why) without doing much work – will generally send the records with a list of the bills and nothing else.

Our office prefers to send a detailed demand – summarizing the facts of the accident, the injuries you sustained, the care received, and how your life was affected – because we need to convince the insurance adjuster to adequately compensate you for all damages. Sending a list of the bills with no details is not very convincing, and does not show the insurance company that we are serious about obtaining maximum restitution for you.

Depending on the type of case and the insurance company, it can take an adjuster several weeks to a couple of months to respond to the demand package.

The insurance company will most likely make its first offer to settle at this point. We will negotiate back and forth, which could take another several weeks or months. Again, this depends on the size of your injury case and whether the adjuster needs to obtain approval from his/her supervisors for certain offers.

If all goes well, we will reach a settlement. If, however, the insurance company does not offer what you and we think the case is worth, then you will have a decision to make.

If we believe the insurance company has not offered fair settlement value, and we think we can obtain more through litigation, we will not hesitate to file a lawsuit and pursue the matter through trial, if that is what’s best for the case.  

Injury Settlements vs. Litigation

There are many attorneys, however, who will NEVER file a lawsuit and litigate. They are either looking for a quick settlement  because they do not want to work any harder than they have to -- or they are just not competent to litigate a case.

This type of attorney will usually try to convince you to accept a settlement, even though you both know it’s not a fair offer. S/He may also require you to pay costs if you decide to move forward. If this happens, it’s time to find a new attorney.

Our firm does not increase fees if we file a lawsuit. We ensure that a decision to litigate or not, is always made in the best interests of you the client, and not based on costs in either time or money for us. 

Serious Injury Cases

Unfortunately, there are times when a client is not discharged from medical treatment for many years, if ever at all. If this is the case, many times it will be apparent from the start and we will file a lawsuit early on.

Many cases settle or go to trial with the client still receiving care due to the significant injuries sustained. Your medical providers, usually including Life Care Planners, will lay out your need for future care. Your attorney will incorporate this future care and costs into any settlement negotiations with the insurance company.

We’ll look at what happens in your case after a lawsuit is filed, in the next installment in this series of blogs.

 

David B. Bobrosky is a Shareholder in our Personal Injury Practice Group. Contact him for a free personal injury consultation by phone, 818.907.3254 or by email: dbobrosky@lewitthackman.com.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

Tuesday
Apr152014

What Happens in a Personal Injury Case After You've Hired a PI Lawyer?

Injury Attorney Los AngelesLos Angeles Injury Lawyer

by David B. Bobrosky

(818) 907-3254

 

This post is the first in a series of blogs in which we will outline what a client can expect during the various stages of a personal injury claim.

 

You've suffered a serious injury. You've found an accident attorney – what happens next?

I’ve previously written about how to hire a personal injury attorney, and what to do immediately after an accident. Many times, though, I’ve found that clients really do not know what to expect after they do engage an attorney.

Wrongful Death AttorneyThis is part of a series of blogs that will discuss what you can expect during various stages of a personal injury case – this one addresses the legal process of a personal injury claim right after hiring an attorney.  

 

What Does a PI Attorney Do, Once Hired?

Every case will not be the same. What happens immediately after hiring an attorney largely depends on the type of case, when you hire an attorney, and how severe your injuries from the accident are. For this blog, let's assume you’ve already engaged a lawyer after an auto accident and that you have sustained moderate injuries.

The first thing an attorney usually does is send out representation letters to everyone involved to let them know you have legal counsel. This is very important, especially if the other driver’s insurance company has already contacted you. If the other insurer hasn't yet, we can prevent them from doing so with this type of letter.

Once an insurance company receives a representation letter, they can no longer contact you. An attorney will provide the insurance company with basic information about you and about the case. (Watch this video regarding providing recorded statements to insurers.)

These initial contacts with the insurance company will help set the tone for the case. If you are contacted by an insurance adjuster, investigator or anyone after hiring an attorney, you need to get the person’s name, and immediately inform your attorney. You should never give the person any information, other than your attorney’s name and phone number.

Representation letters will also be sent to any medical providers involved, letting them know that they will need to send your attorney a full set of medical records and bills once treatment is finished.

 

Accident Investigation & Property Damage

Next, an attorney will investigate the accident, if necessary. This includes contacting witnesses to obtain statements and taking photographs of the scene of the accident. This sometimes includes utilizing an investigator and other experts.

If the property damage to your vehicle has not been finalized by this time, your attorney will also assist in this area if need be. Usually, property damage is resolved fairly easily if there is enough insurance. If you pursue a diminished value claim, this will take longer and will be much more involved.

 

Recovery: The Client's Job

While your attorney is doing what I’ve described above, you have one job: Get the appropriate medical care and get better. Follow your doctor’s advice and keep your appointments. Your medical records are the evidence your attorney needs to prove your injuries. If the records are full of missed or canceled appointments, it will look like you are not seriously injured.

On the other hand, you also have to be careful not to over treat. If you are receiving chiropractic care, you should not also be receiving physical therapy and/or acupuncture on the same parts of your body at the same time. If there is a viable reason for you to have these multiple providers, then make sure each provider is aware of the others.

For more details on getting to the right doctors, see my previous blog, Personal Injury Accident Care: Getting the Appropriate Treatment.

Once you are healed or your injuries have reached a plateau, your attorney can begin negotiating your case. We'll look at what happens in the negotiation phase in the next part of this series.

Read the next installment of this series: What Happens in a Personal Injury Case Once You've Completed Your Medical Treatment?

 

David B. Bobrosky is an experienced Accident & Injury Lawyer at our firm. Contact him for a free personal injury consultation, by phone (818) 907-3254 or email: dbobrosky@lewitthackman.com

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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