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Entries in personal injury treatment (3)

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
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
Dec182012

Personal Injury Accident Care: Getting the Appropriate Treatment

Accident LawyerPersonal Injury San Fernando Valley 

by David B. Bobrosky
(818) 907-3254

 

 

If you’ve been injured in an accident, whether it be a car accident, or a trip and fall accident, or if you've been injured by a defective product – the first thing you should do is seek appropriate medical care.

Some attorneys advise seeking legal counsel before doing anything else, including getting medical care. This is wrong.  In fact, we won't represent that person if he or she has not yet received initial treatment for his or her injuries.  

See Your Own Doctors First

 

Many times we will be contacted after initial care is received. The care can be given by a paramedic, at an emergency room, or in an urgent care center. After emergency care is received, further treatment is usually needed.

If you have a primary care physician, our usual advice is to seek treatment from that physician first, if appropriate for the injuries you sustained.

Your primary care physician knows you best and presumably will be able to refer you to a physical therapist, orthopedist, neurologist, or other specialist, depending on your injuries. If you have health insurance and these providers are covered under your insurance, make sure to present your insurance information to these providers.

There are some attorneys who would rather you go to “their doctors.” They will tell you not to use your insurance and not to worry that you will not have to pay anything up front (liens will be discussed below).  This may sound good at first, but there are risks:

First:  Some of the less credible personal injury attorneys will refer you to a doctor who will work with them in litigation, but he or she may not be the best doctor for your needs.

Second:  You will have to explain to a jury why you chose not to use your insurance and not to go to your regular doctor.

Does this mean we never refer clients to doctors?  No, we certainly do under appropriate circumstances.

 

Don't Know a Doctor or Can't Afford Personal Injury Treatment?

 

Some clients do not have regular physicians. Others have doctors who are unwilling to become involved in an injury case. Some clients do not have health insurance or the means to pay for care on their own. Additionally, some clients have HMO insurance and cannot obtain referrals to specialists who are needed to render the best possible care.

Under all these circumstances, we will help the client find the best doctor for their given needs. Our firm has been in practice for over 40 years – we have worked with some of the best doctors in the area for almost every specialized need.

When you do not have insurance and cannot afford to pay for the care on your own, some doctors will accept liens.

A lien is a written agreement with a medical provider who will provide treatment, but wait until your case is over for payment. You must pay for the care, even if you do not recover anything for your injuries during your case. They are not treating you on a contingency basis; they are just agreeing to wait for payment.

Liens are often criticized by insurance company attorneys at personal injury trials, as they try to portray lien doctors as having a “stake” in your case.

But remember:  You are only put in this position because of the negligence of the defendant, and the defendant's and the insurance company’s unwillingness to pay for your medical care. If they would pay for your care as you get it, there would be no need to see a doctor on a lien.  Unfortunately, liability insurance carriers will not agree to pay for your care as you go.

Your ultimate goal is to get the appropriate care to treat, and hopefully resolve, your injuries. Your recovery is always the focus of the case.

 

Dave Bobrosky is an Accident and Injury Attorney with nearly 15 years of experience in helping Los Angeles accident victims and their families receive fair compensation for their injuries. Contact him via 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. 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120