Talking to our new clients, we’ve heard many misconceptions about personal injury cases. Listed below are a few of the common myths. As you read further in this book, you’ll understand how relying on these misconceptions-instead of on your lawyer’s advice-can jeopardize your case.
Myth 1 If you’re hurt in an auto accident, but think the injury is minor, you shouldn’t tell the investigating police officer about your injury.
Myth 2 If you are injured in a collision by a driver who has no insurance, you can never make a claim.
Myth 3 After an accident, when the insurance company calls and asks to record an interview with you, or “take a recorded statement,” you should freely give a statement over the telephone.
Myth 4 When the insurance company sends you a letter asking for a signed authorization to inspect your medical records, you should sign and send off that authorization.
Myth 5 After an accident in which you are injured and make a claim, your own car insurance company will raise your premiums or drop you.
Myth 6 If your medical insurance pays for your accident-related medical bills you must pay the insurance company back.
Myth 7 The best way to find a good injury lawyer is to call one who advertises on television.
Myth 8 Any lawyer can successfully handle a personal injury case.
Myth 9 If your lawyer sends you to “his” doctor, that’s good for your case.
Myth 10 When the insurance company offers to settle your case before you’ve talked to a lawyer, it’s trying to save you an attorney’s fee because it has your best interests at heart.
Myth 11 Connecticut juries are generous and haven’t been affected by the insurance company advertising campaigns against injury cases.
Myth 12 You must pay taxes on your personal injury settlement.
Myth 13 If you don’t tell your lawyer about previous accidents or injuries no one will ever find out about them.
You’ve heard the phrase on television or in conversation. But what exactly is a personal injury case? Lawyers and insurance companies use this term for legal claims arising from injuries caused by the carelessness, negligence or fault of another person or institution.
Personal injury cases include simple rear end car accidents, where one driver was careless or not paying attention. They include cases where a person slips on an icy sidewalk or spillage on a supermarket floor, or where someone is bitten by a neighbor’s dog. Personal injury cases can arise out of hospital malpractice or a doctor’s negligence. Injuries can be caused by dangerous products, manufactured improperly or equipped without necessary safety devices.
A personal injury case starts with an injury. For example, if you’re in a car crash but don’t suffer any physical harm, you may sue the responsible insurance company for car repairs, but you won’t have a personal injury case. Without a physical or emotional injury, it doesn’t matter who was at fault or how careless the other person was. If there is no injury there is no case.
Every case is different because every injury is different. Injuries range from bruises and neck sprains to amputations, paralysis, even death. Sometimes people lose a leg or their vision, and lose their ability to work. Medical bills can be enormous, even for a smaller case. On the other hand, sometimes in accidents people are killed instantly, in which case there may be no medical bills at all.
Most personal injury cases have common features: an injury; medical treatment; medical bills; often lost time from work; often a residual or “permanent” injury or scarring. For every case in which a lawyer is involved, the lawyer’s job is to gather information about the injury and losses so that the facts of the injury can be communicated to the insurance company, to the judge, or to the jury.
The second essential element in every personal injury case is fault. Legal fault on the part of another person or institution (a corporation, a partnership, or an agency of government) must be proved. If there is no fault, no one is legally responsible for the injury. If an injury is nobody’s fault, no one can be sued, and no one can be forced to pay compensation. Sometimes the injury is entirely the victim’s fault (“I slipped and fell in my driveway and broke my leg”). Often, however, somebody else’s negligence is to blame.
Proving fault is the personal injury lawyer’s most important job. Sometimes fault is obvious: the back driver in a rear end collision is nearly always to blame. But even apparently simple cases can raise legal or factual questions: Who is to blame for the intersection collision where both drivers insist the light was green? Sometimes two drivers can both be at fault for one collision. If you are injured because you received the wrong medication, this may be due to the carelessness of a doctor, or a nurse, or a pharmacy, or all three. When bad things happen there is often a complicated chain of cause and effect.
To effectively develop and prove a complex case is the hallmark of a skilled injury lawyer. Most personal injury cases settle before a full trial in court. But a serious case with complicated facts and disputes about fault is unlikely to settle unless the lawyer prepares and presents proof of fault to the responsible insurance company.
We believe that even clients with straightforward cases are best served by an experienced lawyer who knows how the legal system works and how to maximize recovery. Insurance companies pay more to settle a well- developed and fully presented case. In every community, the insurance companies know who the good lawyers are. Experienced injury lawyers get better results for their clients.
Your experienced personal injury lawyer is always the best person to advise what to do after an accident. But listed below are some general tips that may help protect you-and your case-until you’re able to consult with a lawyer.
You may not realize it, but at the time of your accident or malpractice you enter a war zone. The war is between you and the insurance company.
Insurance companies exist to protect their policy holders from claims and to pay proven claims. But in reality, insurance companies make their money by
not paying claims-or by paying as little as possible. Think about it in this way. For every day the insurance company doesn’t pay on your claim, it can invest that money and earn interest for its own profit. Every dollar the insurance company doesn’t pay in claims increases its bottom line profit at the end of the year.
Every personal injury case is a series of battles with the insurance company. Your lawyer’s job is to win the war and secure the best possible settlement. The insurance company and its lawyers have two goals: delay the settlement and make the settlement as small as possible.
Listed below are insurance tactics commonly used in the personal injury war zone.
Some people don’t trust lawyers. Others feel comfortable negotiating with insurance companies themselves. In an injury case, however, we believe the old saying is true: a person who acts as his own lawyer has a fool for a client.
Insurance companies have conducted their own private research to determine the financial consequences to the injured person of trying to handle his or her case without a lawyer.
In 1999 the Insurance Research Council (IRC), an organization supported by property and casualty insurance companies, performed a study that compared the settlements paid to injured persons who hired lawyers with the settlements received by people who handled cases themselves.
The IRC study showed that, on the average, people who hired a lawyer received three and one half times more money in settlement than those who didn’t hire a lawyer.
That statistic bears repeating. People with lawyers received three and one half times more by way of settlement. This means people who hire lawyers come out ahead even after they pay their legal fees and costs.
Is it any wonder that insurance companies try to keep injury victims away from lawyers? Smaller settlements mean larger profits for insurance companies.
Here are some other good reasons why you’re better off hiring a lawyer to handle your injury case:
Here’s a surprising fact: consulting and hiring an injury lawyer shouldn’t cost anything out of your own pocket. Injury lawyers typically provide a free consultation to prospective clients. At that conference your lawyer will explain that his or her legal fee will come out of the any funds recovered in your case. If there is no settlement, your lawyer should explain, he or she will charge you no fee at all.
By custom and legal statute, Connecticut injury victims are permitted to hire a lawyer under a contingent fee arrangement. Contingent means the legal fee depends on the outcome. If the case is successful, the lawyer is paid a percentage of the recovery (usually one third of the gross settlement). If the case is lost, the lawyer receives no fee.
This contingent fee system is one of the great innovations of the American legal system. It’s allowed millions of injured people access to skilled lawyers without paying anything out of their own pocket. The insurance industry has mounted a campaign against lawyers, claiming they have been unfairly enriched by the contingent fee system. But in fact this system is fair both to lawyer and client. It levels the playing field. It enables injury victims to bring cases against defendants with enormous resources, who are insured by the largest and most profitable insurance companies in the world, and who can pay unlimited legal fees to defense lawyers.
Here are the reasons why hiring your injury lawyer under a contingent fee agreement is the best legal decision you’ll ever make.
In Connecticut a contingent fee agreement must be in writing and signed by the client to be effective. A sample attorney fee agreement that we use at our firm is printed in Appendix A to this book.
Lawyer advertising is everywhere. You’ve turned on the television and seen the lawyer commercials: the friendly smiling face of an attorney or a television actor urging you to “Call Now.” You’ve leafed through the telephone book and read the confusing advertisements, all promising to “Get Results!” or “Get you the money you deserve.” You’ve probably seen the lawyer ads on the sides of buses.
Thirty years ago lawyer advertising was largely prohibited in Connecticut. Injured people found lawyers the old fashioned way: by talking to family or friends, by learning about a lawyer’s reputation in the community. Eventually the Supreme Court permitted lawyers to advertise, reasoning that advertising helped consumers make informed choices. And so the advertising flood began.
Unfortunately, like most advertising, lawyer ads are often repetitive, confusing, sometimes even meaningless. How is an injured person to know whether a television lawyer really is skilled and experienced? What can one learn about a lawyer’s qualifications from a face on a billboard? What do photos of smashed cars tell you about a lawyer’s track record? How can an injured person learn about a lawyer’s competence to successfully handle a case?
Fortunately, it’s not hard these days to get reliable information about a lawyer’s qualifications or to make an informed choice when hiring one. Listed below are several different considerations and approaches.
Choosing an experienced injury lawyer shouldn’t be difficult. In most communities there are a number of highly skilled personal injury lawyers. Use the resources above to identify the lawyers who have a track record of success. Choose one that you feel comfortable with. And don’t be afraid to hire a lawyer from another city or part of the state. Most personal injury lawyers in Connecticut will handle a case anywhere in the state.
Modern medical treatment is expensive. An overnight stay in the hospital can cost thousands of dollars. For a serious injury, the medical bills are often far beyond the ordinary person’s ability to pay.
In automobile cases, the insurance company for the person who caused your accident will not pay your medical bills. As a rule, the insurance company pays nothing initially, as any payment would be seen as an admission of fault. At the conclusion of the case, the liability insurance company will take into account the amount of the medical bills, paid or unpaid, and factor that into the settlement.
Occasionally, an injury victim will have some “med-pay” insurance through the family automobile insurance. Sometimes, in slip and fall cases, the defendant’s insurer will have some limited “med-pay.” Your personal injury lawyer should help you collect these benefits, and should not charge you an additional fee to do this.
Fortunately, if you have regular medical insurance, your coverage will pay for medical treatment caused by an accident or malpractice. This is true whether the coverage is private health insurance such as Anthem or Blue Cross, the Husky Plan, Medicare, an ERISA self-insured plan, or some other health insurance. Medical insurance will pay for your accident related medical expenses just as it would pay for the medical treatment for any other illness or condition.
Problems arise for people without medical insurance who are injured in accidents. Sometimes the bills mount up and there is no means to pay them. Sometimes, the doctors or therapists refuse to treat a patient when they have no insurance. Solving the medical bill problems of such clients is a service many experienced personal injury lawyers provide. Your attorney may know doctors in the community who will treat you and wait be paid until the conclusion of the case, on an arrangement known as a “letter of protection.” The lawyer may be able to secure insurance coverage through a state program or direct the client to a hospital clinic where care is provided free of charge. Experienced personal injury lawyers normally do not charge an extra fee for helping their clients get necessary medical treatment.
At the conclusion of a case, the insurance company for the person who caused the accident normally pays a settlement, which is based in part on the amount of the medical bills incurred for treatment in the case. For obvious reasons, a more seriously injured person usually has larger medical bills.
If medical bills remain unpaid at the conclusion of the case, part of the settlement may be used to pay doctors or hospitals. Personal injury lawyers often negotiate the payment of these bills with the care providers and try to get the best deal for the client.
As for bills paid by your medical insurance, in most cases the insurance company has no lien on the settlement of a personal injury case. In other words, you don’t have to pay your medical insurance company back for the bills it paid. Your lawyer should review any papers you receive from your medical insurance company after an injury. Some companies will send a letter out, asking you to agree to pay them back, when under the law they have no right to reimbursement from your settlement.
There are two principal types of insurance which do have a valid legal lien and must be reimbursed for medical bills paid after an accident. The first is Medicare or Medicaid. Your personal injury lawyer must notify Medicare about your case and pay the lien from the settlement of your case.
The second type of insurance entitled to reimbursement is a self-insured plan which is governed by a federal law called ERISA (The Employee Retirement Income Security Act of 1974). These insurance plans are typically those of large, national corporations, or of plans provided by labor unions. This is a complicated area of law. An experienced personal injury lawyer will negotiate for you, against the ERISA self-insured plan, to try to get the plan to discount its claims against your case.
In working on a case, an experienced injury lawyer does many things the client may not know about.
Before the law suit is filed, your injury lawyer may do some or all of the following work on your case.
If your case can’t be settled at an early stage, your injury lawyer will file and prosecute a law suit which may require the following additional work on your case.
In Connecticut, especially in urban areas, it’s not unusual for a driver causing an auto collision to have no insurance. Does this lack of coverage end an injury case before it’s begun? Your own insurance company would like you to think so. But as any experienced injury lawyer will tell you, “no insurance” doesn’t necessarily mean you don’t have a case.
Many Connecticut consumers don’t realize that the law requires all car owners to carry insurance that covers themselves in the event of a collision with an uninsured driver. Just look at your own auto policy. You’ll notice that you pay a separate premium for “Uninsured and Underinsured Coverage.” This part of the policy covers if you’re injured in an accident with a car that has no insurance or not enough insurance.
It works this way. First, you must know that you have such coverage and how it works. Then you must file a claim with your own insurance company that proves a lack of insurance on the other driver, his fault for the collision, and that you were injured.
With these elements proved, your own insurance company “steps into the shoes” of the uninsured driver. Your own insurance company will pay to settle your claim just as if it were the company for the uninsured driver. If your company refuses to pay, it can be sued in court to enforce your right to compensation.
Some people worry that filing such a claim against your own company cause your rates to go up. It shouldn’t. As the policy holder, you have paid a premium for this coverage. The accident was not your fault. You are entitled to the coverage you’ve paid for without penalty.
Uninsured and underinsured motorist coverage is poorly understood by consumers, even though in Connecticut it is required for all drivers by state law. We’ve found that insurance agents often recommend policies with inadequate coverage. An experienced injury lawyer will give you good advice about what amount of uninsured coverage is appropriate, and how to get that coverage from your company if you need it. Uninsured motorist coverage protects you against injuries caused by uninsured drivers. Think twice before you agree to reduce these limits. Additional uninsured motorist insurance or “conversion coverage” is also available, for a modest extra premium.
Remember, in the event of an accident with an uninsured vehicle, it’s unlikely that your own insurance company will voluntarily pay on your uninsured claim. Even with your own company, the less it pays on claims, the greater its corporate profit.
Every person injured by accident or malpractice wonders what their case is worth. Especially early in the case, there is no easy answer. No one can predict the long term effects of the injury, the total cost of medical care, the amount of lost wages or physical disability. These are the most important factors in determining a fair settlement.
No magic formula is used by lawyers and insurance companies to determine a case’s settlement value. Every case is different. And the effect of every injury is different. A broken ankle would change a ballet dancer’s life far more than it would a software designer’s. A fireman would experience a facial scar differently than would a fashion model.
An injury lawyer always works to maximize your settlement. He or she must understand the effects of the injury on your life and compellingly present your suffering and losses to an insurance company, a mediator, jury, or judge. An injury lawyer should have the experience to evaluate your case realistically and know what settlement would be fair or unfair.
Sometimes, the person causing the injury has inadequate insurance for the very serious injury he’s caused. In such cases, the amount recovered can be relatively small, compared to the losses suffered.
In other cases, the injured person is partially at fault for his own injury. For example, both drivers in an auto collision can be at fault. Or in the case of a slip and fall injury, the injured person may have failed to look where he was walking. In Connecticut an injured person must be 50% or less at fault or no recovery is permitted. If the injured person bears half or less of the fault, the settlement will be reduced accordingly. For example, a plaintiff who is 25% at fault recovers the remaining 75% of the damages award. If the injured person bears more than half of the fault, he or she recovers nothing.
There are many factors which might bear on the amount of a fair settlement in your case. Rather than list them all, we’ve described below a sample of settlements or verdicts we’ve achieved for our clients. It provides a range of results, based on the type of injury and damages. Of course we can’t guarantee similar results in yours or any other case. The results in your case will depend on the unique facts of the accident and the severity of the injury.
Lawsuits can be expensive to prosecute. In addition to court filing fees, there are many other costs associated with a personal injury lawsuit. These include, marshal’s fees, investigator’s fees, medical records and report fees, copying costs, court reporter’s fees for deposition transcripts, expert witness fees, necessary travel costs, the costs of preparing demonstrative exhibits for the courtroom, and consultant fees.
Normally, an injury lawyer pays for these expenses as they are incurred. This is known as “advancing the costs of the lawsuit”. On settlement of the case, the lawyer is reimbursed for these expenses from the client’s share of the settlement. If there is no settlement, typically the client does not reimburse the lawyer for his or her expenses.
This arrangement is described in the contingent fee agreement the client signs when hiring a lawyer. An experienced injury lawyer will explain to the client this arrangement as to the payment of costs of the lawsuit.
In some complex and serious cases such as malpractice cases, where outside experts are required, the client may agree to sign a “fee waiver” and pay a straight one third contingent fee. In these cases the lawyer bears all costs of the case. They are recoverable from the client’s share if the case is successful, but the lawyer must take the entire loss if the case is unsuccessful. Appendix 2 contains a fee waiver contingent fee agreement used by our firm in malpractice and other complex cases.
More than 95% of personal injury cases settle, rather than going through a complete trial with a jury verdict. But the timing of settlement varies with each case. For a minor injury with limited medical treatment, a case may settle six months after the incident.
With serious injuries, a case shouldn’t settle until the extent of the client’s injury is fully known, or until he or she reaches maximum medical improvement. For this reason, even an experienced injury lawyer can’t predict the timing or value of the settlement in a particular case until the client finishes treatment.
Sometimes a client thinks her case is ready to settle when it isn’t. Here is one example from our recent files. A new client called us for a second opinion about an injury case being handled by her real estate lawyer. Our client injured her neck in a rear end collision. She’d gone through a course of physical therapy and hadn’t recovered fully. Daily pain in her neck and arms was interfering with her job in the medical field. Her lawyer had received a settlement offer from the insurance company of $20,000.00 based on the limited treatment she had received up to that date. Her lawyer was urging her to accept the offer.
We recommended that the client not accept the offer. Since she was still receiving periodic treatment for continuing problems, she hadn’t reached maximum medical improvement. We recommended that she return to her family doctor and ask for an evaluation with a specialist to determine the cause of her neck and arm pain.
The client took our advice. Her family lawyer forwarded the case to us to handle the lawsuit. Eventually, our client was referred to a neurosurgeon who diagnosed a nerve injury in her neck caused by the accident. Surgery was performed and a metal plate installed to stabilize her neck. Eventually she did reach maximum medical improvement. We settled her case for $350,000.00.
This case illustrates why a case shouldn’t settle until the client has truly finished treating for her injury.
It also illustrates why sometimes insurance companies hurry to settle cases. Especially with neck and back injuries, insurance companies know that symptoms can get worse with time, and surgery may not be necessary for a year or more after the injury. The insurance company may offer an early settlement, to avoid responsibility for long term consequences of an injury.
Some inexperienced lawyers urge their clients to settle for the first offer from the insurance company. But by accepting a premature settlement, the client may be left with no recourse for future medical care and disability. Meanwhile the insurance company pays a fraction of what the case is truly worth.
Often, of course, it’s the insurance company that delays settlement, holding onto the money as long as possible. Having handled many injury cases, the experienced injury lawyer is in the best position to counsel his client as to the timing of settlement. A skilled lawyer recognizes a premature, low-ball offer. A skilled lawyer knows that often the best settlements only come at the conclusion of the case, when the trial is about to begin or when it is about to end.
Injury lawyers recover money from the responsible insurance company or institution for their injured clients. But what is the money for? Under the law, what types of injuries or losses are compensable with money damages?
In Connecticut, a person injured through the legal fault of another party is entitled to fair, just, and reasonable compensation for those injuries caused by the other party’s negligence. “Damages” is a word judges and lawyers use for the injury’s effects: physical, emotional, and financial.
As every person is different, the effects of each injury will be different. Money awards depend on the severity of the injury in a physical sense, but also on how seriously the injury affects the person’s life. These effects may go far into the future. If so, an injured person is entitled to fair compensation for the future results of an injury.
Listed below are the types of damages (compensation for injuries and losses) that may be recovered under Connecticut law, depending on the facts of the individual case.
With all this in mind, it is easier to understand the truth behind the million dollar jury verdicts often headlined in the newspaper. With a major injury, clients sometimes never work again, have enormous medical bills, will need future medical treatment, or are forced to give up a favorite life activity. In other cases, the injury may be an emotional one. An injury and its effects may cause a severe depression, which in itself can be disabling.
The Connecticut law of damages aims to put the injured person in the same position he or she would have been had the injury not happened. Economic injuries can be compensated very directly and accurately: a jury can award the value of medical bills or lost time from work. For more intangible losses, every jury understands that a money award won’t restore a person’s health or take away their pain. The jury’s difficult task in a personal injury trial is to award an amount that fairly compensates for the physical and emotional suffering the injured person has gone through.
Our firm has conducted many jury trials over the years. We’ve seen how juries try to be fair to both sides, and use common sense in compensating injury victims. Although big business claims that juries are a lottery that injured people can’t lose, we’ve found the opposite to be true. Before Connecticut jury awards money for an injury, it requires real proof of fault, and proof of the injury and the effects on a person’s life.
The experienced injury lawyer knows that a jury may be skeptical about an injury. The lawyer must prepare and present evidence that will prove the true damages to the jury. Sometimes proof is made through medical illustrations or physician testimony. Sometimes an injury lawyer will call a neighbor or fellow worker of the injured client to testify about how that person’s life has been changed by an injury.
Although more than 95% of injury cases settle without a complete trial, many cases can’t be settled without filing a lawsuit in court. With some exceptions, an injury case must be filed in court within two years of the date of the incident causing the injury. This two year provision is called the Statute of Limitations. A case not filed in court within the applicable statute of limitations, will almost certainly be lost.
Cases fail to settle “outside court” for many reasons. Sometimes the injury has not resolved and the client is still receiving medical treatment two years after the accident. More often, the insurance company and your lawyer don’t agree about the value of the case or who was at fault, and the parties must turn to the court system to resolve the dispute. Frequently, the defense wants to hold its money during the delay period while the suit is waiting for a trial date.
Since it’s impossible to predict when your case will settle, it’s critical to hire an injury lawyer with courtroom experience and a track record of success. Although few clients necessarily want to go through a jury trial, every client must be prepared to go to court to win a contested case. The insurance company must believe that your lawyer is willing to take your case to trial, before the company will make its best settlement offer.
Once a case is filed in court, the insurance company hires a lawyer to represent the defendants who have been sued. Your lawyer and the defense lawyer then exchange information about the case through a court process called “discovery.” The insurance company lawyer is entitled to gather much information about your case, including any history of prior accidents or similar injuries. By the same token, your lawyer is entitled to information about the person who caused the accident, including his insurance coverage, history of alcohol use prior to the collision and any statement he gave to his own company.
After this information is exchanged, the insurance company lawyer will typically take your deposition. A deposition is a proceeding held at one of the lawyer’s offices at which you are questioned under oath and the questions and your answers are transcribed by a court reporter. The result is a word-for-word record of your testimony concerning the case.
Your lawyer should prepare you thoroughly for your deposition. Preparation should include a conference with your lawyer. At that conference your lawyers should prepare you for the question-and-answer process, review the important facts of how you were injured, and the extent of your injuries and losses. The settlement value of your case may depend on the impression you make at your deposition, your truthfulness, and your knowledge of the facts of the case. The insurance company wants to know what kind of a person you are, and whether a jury will find you credible, honest, and sympathetic.
While your lawyer will prepare you in detail for your deposition, here are some useful general rules:
Some cases settle shortly after the depositions. Sometimes the lawyer will receive a settlement offer directly from the insurance company. More often, however, cases resolve during settlement conferences held with a judge at court. Typically, the client attends these conferences with the lawyer.
Full jury trials are uncommon today. Partly this is due to improved settlement procedures available in court. But even when the parties can’t agree prior to trial, cases still settle during the selection of the jury or after evidence begins. Even after the closing argument is delivered and the jury starts deliberating, a case can settle if the two sides reach an agreement on their own or at a judge’s recommendation. Sometimes the parties can’t agree. Then the jury decides.
When a case is tried to verdict with a jury, it generally means your lawyer and the insurance company have very different ideas about fault, or about the value or merits of your case. The jury’s function is to decide the disputes between the parties. A jury may be called on to decide who was at fault in the collision and to apportion fault. If the jury finds the defendant is at fault, it will then determine the money value of your damages award. If the jury determines you are partially at fault for the incident, it will reduce your award by the percentage of your fault.
After the verdict is returned, the judge may hold a “collateral source hearing” to consider whether and how the medical bills were paid. The judge may reduce the verdict by the amount of medical insurance payments. The reduced award then becomes the judgment of the Superior Court.
Most clients are happy with their lawyers and satisfied with the outcomes of their injury cases. Sometimes, however, the relationship between lawyer and client breaks down. As in other relationships, communication problems most commonly cause lawyer/client break-ups.
Every lawyer has an ethical obligation to communicate with the client, to respond to telephone calls, to update with developments in the case. Clients can assist their lawyers to serve them well by regularly updating their lawyers concerning medical treatment, ongoing pain or disability caused by the injury, and any problems with bills or financial struggles.
But what can a client do when the relationship with an injury lawyer sours or breaks down? Having signed a contingent fee agreement with one lawyer, can a client ever change lawyers?
Connecticut law is clear. In an injury case, a client is always free to terminate representation with one lawyer and hire another. The client doesn’t need a good reason to change lawyers. The client doesn’t have to prove the first lawyer did anything wrong before discharging him. It’s enough that the client wants a different lawyer to handle the case. The client is always free to choose.
Generally, the client is entitled to pick up the file-the documents relating to the case-from his or her lawyer at the time of discharge. The lawyer is entitled to be paid fairly for work performed. However, since the case was being handled on a contingency basis, the client is not obligated to pay the discharged lawyer for the legal services performed until the end of the case.
As a practical matter, most unhappy clients will consult and retain another lawyer before discharging their first lawyer. Experienced injury lawyers are familiar with the process. The new lawyer will ask the client to sign a new fee agreement and a letter of authorization. The newly hired lawyer then will contact the discharged attorney and arrange for the transfer of the case.
Typically, the discharged lawyer is compensated for his or her legal work at the conclusion of the case. Since there is only one fee paid by a client in an injury case, that one fee is divided between the two lawyers according to their relative contribution to the settlement of the case. Usually the two lawyers will agree on a division of the fee. If not, they are required to submit their dispute to a Connecticut Bar Association fee dispute process which will make a final decision as to the fair division of the fee.
Remember, a client is never required to pay more than one contingent fee in an injury case. If more than one lawyer or firm works for the client, the one contingent fee is divided between the two lawyers.
At our office we sometimes receive calls from people dissatisfied with their own lawyers. Usually the problem is one of poor communication on the part of the attorney. We counsel such callers to call their lawyers and arrange a meeting to discuss their concerns. We may offer to call the other lawyer on the dissatisfied client’s behalf, to help resolve the difference between the client and his or her lawyer.
Sometimes issues about a lawyer’s conduct go beyond a failure to communicate. Sometimes lawyers have personal problems that affect their work. Some lawyers have insufficient resources or experience to handle a complex case. And unfortunately, lawyers occasionally commit legal malpractice in the handling of an injury case.
If you have unanswered questions or serious concerns about your own lawyer’s conduct, you should consult an experienced injury lawyer for a second opinion about your case. Most lawyers provide a free consultation and can tell from your account whether the problem is simply poor communication or something more serious.
Suing a doctor or hospital for malpractice is a type of personal injury case with rules of its own. Connecticut statutes regulate malpractice cases and set forth special requirements the lawyer must meet before bringing such a lawsuit. Other statutes regulate the type of proof the lawyer must offer at trial.
To sue for malpractice in Connecticut, the injury lawyer must first obtain the medical records in the case. Usually the records will be used to determine if malpractice appears likely. Often the records show the doctor or hospital has done nothing wrong. In other situations the records raise serious questions about possible breaches of the standard of care.
Before the case can be filed, the lawyer must obtain a written opinion from an independent physician detailing what the treating hospital or doctor did wrong and why it fell below the applicable standard of care for the particular medical specialty. This “Good Faith Certificate” must be signed by a doctor who has the same medical expertise as the treating doctor.
Naturally, members of the medical profession don’t like to be sued. Malpractice cases are almost always hotly contested, and rarely settle without filing a lawsuit and going through the discovery process of taking depositions of the involved doctors and patient. Frequently, the independent expert witnesses from both sides are also deposed.
Our firm has settled or tried numerous medical malpractice cases. We know that malpractice cases are very expensive to conduct. The out-of-pocket cost of hiring experts, taking and defending the necessary depositions and discovery, and putting on a trial in a complex malpractice case can exceed one hundred thousand dollars. On the other hand, hospitals and the insurance companies for physicians have virtually unlimited resources to defend cases brought against them.
Because the cases are costly both in lawyer time and expenses of suit, most firms that handle malpractice cases are selective about what cases they accept. The physician’s negligence must cause a very serious, life-changing injury, in order to justify the time and expense of bringing such a case.
Not every lawyer has the financial means or medical expertise to successfully handle a malpractice case. In choosing a lawyer to investigate your malpractice case, it is important to find a lawyer with experience in these cases and with a staff trained in medicine to help analyze and prosecute the cases. In our experience good cases are often initially rejected by lawyers without sufficient medical knowledge to identify the physician’s negligence or who lack the financial resources to prosecute a difficult case.
If you think you or one of your loved ones has been seriously injured by an unexpected medical occurrence or complication, you’re entitled to investigate what happened and learn if malpractice is to blame. If you ask, “What went wrong?” and you can’t get a straight answer from your doctor, consult a lawyer. You should consult a firm with a track record of success in malpractice cases. The insurance companies for hospitals and doctors know who the skilled malpractice lawyers are, and take that into account when paying settlements.
Malpractice injuries are often not obvious. In the American healthcare system, the overwhelming majority of medical negligence events go unreported and undiscovered. A recent national study showed that at some hospitals between 18 and 35 per cent of patients suffer some harm or injury due to medical mistake. Often patients don’t realize that a decline in their condition or an injury was caused by medical negligence.
Although the range of medical mistakes causing injury is almost unlimited, five general types of malpractice are the most common.
When symptoms of an illness appear, physicians and hospitals have a duty to properly evaluate, test, and work up the patient’s condition until a proper diagnosis is reached. Only after arriving at a proper diagnosis can the physician appropriately treat the patient. A misdiagnosis may lead to improper or ineffective or untimely treatment of the underlying condition. A failure to test or otherwise work up a patient’s symptoms can turn a treatable illness into a medical catastrophe.
Examples of malpractice cases arising from misdiagnosis or failure to diagnose include the following: failure to order CT scan, blood tests, ultrasound exams, or x-rays; failure to properly interpret a colonoscopy, a mammogram, or an EKG (electrocardiogram); delay in the review of test results or failure to communicate the results to the patient or the patient’s treating physician; failing to recommend a biopsy for a suspicious lump or skin lesion; failure to refer a patient to an appropriate specialist after test results are received by the family doctor; failure to diagnose a psychiatric illness or suicide risk.
Diagnosis errors can be catastrophic in the emergency room setting. ER misdiagnosis errors can include failure to diagnose heart attack, stroke, bowel obstruction, ruptured spleen, or internal bleeding, including bleeding into the brain.
Medication errors are among the most easily prevented types of malpractice. Standard medical procedures exist to check and cross check the prescription and administration of medications. Yet despite these safeguards, such errors are common among physicians, nurses, hospitals, and pharmacists.
Examples of medication errors giving rise to malpractice claims include the following: giving the wrong dosage; administering the medicine by the wrong route; giving the wrong drug due to pharmacy error–improper filling of the prescription; dangerous drug interactions caused by the physician’s failure to consider the other medications the patient is taking; prescribing a drug without taking a full medical history; administering the medication improperly due to misreading of instructions; failing to monitor the patient following the administration of drugs or anesthesia; failing to discontinue medications when they are no longer medically necessary.
Heart and circulatory problems can produce varied symptoms, including chest pain, temporary vision problems, headache, nausea, dizziness, and pain radiating to the extremities. If these symptoms aren’t properly evaluated and worked up, the results can be deadly or disabling.
Examples of malpractice cases involving heart attack or stroke include the following: emergency room failure to properly test a patient reporting chest pain; nursing failure to communicate to an attending physician neurological symptoms suggesting stroke: family physician’s failure to refer a patient with suspected heart disease to a specialist for complete diagnostic work up.
Most surgical procedures have known risks. That is, bad outcomes can occur even when the surgeon is careful and makes no negligent mistakes. On the other hand, medical errors regularly occur in hospital operating rooms. Malpractice can also occur post-operatively in the hospital setting when the effects of surgery are not adequately followed up or treated.
Examples of malpractice involving surgical or post-surgical errors include the following: operating on the wrong part of the body; anesthesia error; foreign object left in the patient; inadvertent injury to nearby nerves or organs; inadvertent injury not discovered at the time of surgery; lack of experience with surgical equipment or devices causing harm; failure to monitor the patient during and after surgery; failure properly to respond to post-operative pain or other signs or symptoms of complication, including postoperative bleeding or infection; waiting too long before performing urgent or emergency surgery; failure to call in a specialist promptly when a procedure goes wrong.
Both mother and child can be injured by malpractice during the labor and delivery. Babies and mothers may also suffer injuries as a result of improper prenatal care or testing and by improper care after the birth. Negligently caused injuries at birth can have serious, longstanding, and devastating effects.
Examples of malpractice caused by birth injuries include the following: cerebral palsy due to improper fetal monitoring; death of child or mother due to failure to perform timely c-section; shoulder dystocia due to improper technique at delivery; maternal stroke caused by a failure to treat pre-eclampsia; hypoxic-ischemic encephalopathy due to improper prenatal testing and care; brain injuries due to oxygen deprivation during labor.
Remember, all three essential elements of the case must be present before your lawyer can file a medical malpractice lawsuit:
Your lawyer will assess these factors for you. If any of these factors are missing, you probably don’t have a viable medical malpractice case. An experienced malpractice lawyer will usually evaluate your case without charge.
In Connecticut, any person injured on the job is covered by the employer’s workers’ compensation insurance. With a few exceptions, in workers’ compensation it doesn’t matter who caused the incident or how it happened. As long as the injury happened at work, the injured worker is covered by workers’ compensation. Because of this statutory right to recover, the injured worker is generally prohibited from suing his boss or fellow employee or company for negligence in regular civil court.
In Connecticut every employer is required by law to carry workers’ compensation insurance. An insurance adjuster assigned to the injured worker’s case will pay appropriate compensation benefits which include medical bills, lost wages, and any permanent loss of use or disability of a part of the body. Under workers’ compensation, there is no payment for an injured worker’s pain and suffering.
Although similar, a personal injury case and a workers’ compensation case differ in two important ways. Workers’ compensation is regulated by special statutes and has its own court system, called the Workers’ Compensation Commission. The injured worker does not need to prove negligence or legal fault. Benefits must still be paid even if a worker’s own carelessness causes the injury.
By contrast, in a personal injury case proving fault is a legal requirement. There is no case unless someone is legally at fault for causing the injury. In addition, the types of compensation which can be recovered in a civil case are not limited by statute. Unlike an injured worker seeking benefits, the victim in a personal injury case can recover for pain and suffering, the loss of life’s activities, scarring, and future economic losses.
Sometimes a single incident produces both a workers’ compensation claim and a personal injury case. For example, if the worker is injured by a fellow employee who was operating a company motor vehicle, the worker can recover workers’ compensation benefits and file a personal injury law suit. Sometimes at construction sites, a worker is injured by someone other than a co-worker who works for the same employer. Sometimes the person causing the injury is the property owner or an independent contractor. In such cases the worker has both a compensation claim against his employer and a personal injury case against the third party, and usually the workers’ compensation insurer has lien rights to be repaid its benefits.
A full description of workers’ compensation law in Connecticut is beyond the scope of this book. As in any injury case, it is important to get good legal advice from an experienced lawyer after a serious injury on the job. Many personal injury lawyers also handle workers’ compensation cases.
