Personal Injury Guide Book
What Is A Personal Injury Case?
After the Accident: Avoiding Common Mistakes
What Your Injury Lawyer Will Do
Types of Medical Malpractice Injuries
Workplace Injuries and Workers’ Compensation
Myths and Misconceptions
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.
What Is A Personal Injury Case?
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.
After the Accident: Avoiding Common Mistakes
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.
Always call the police after an accident. Sometimes after what seems a minor collision, the person at fault may offer to handle the case privately and not want to call the police. This is never a good idea. Without a police report, it can be difficult to document what happened, or even prove that an accident did occur. Sometimes what seems like a minor impact can produce serious long term injury. So always use the police to protect your rights and document the facts. If you aren’t sure who was at fault for the collision, don’t voluntarily take the blame. Determining fault is the police officer’s job, and sometimes even the police get it wrong.
If you are injured tell the police. If you don’t inform the police about your injury, the officer will write on the police report that there was no injury. A “property damage only” report can damage your case later. The defense will say you “weren’t hurt.” So even if the injury seems minor, tell the police about it and let the officer document your injuries. Time and medical evaluation will tell how badly you are injured.
If offered medical attention by the police, accept it. After a collision, with the excitement and fear, you may not realize how seriously you are injured. If the police or the emergency medical personnel offer you an ambulance ride to the hospital, take it. Let the doctors check you out. If you don’t, the insurance company may use your decision not to accept medical care as proof that you weren’t really injured.
At the hospital, answer the doctors’ questions honestly. Protect your credibility by telling the truth when you answer medical questions. If you have a history of back problems and are reinjured in a car accident, let the doctors know about your prior problems. Telling the truth will help the doctor treat you properly. Not telling the truth about prior conditions will damage your case. Your truthfulness and credibility are your most important assets in a personal injury lawsuit.
If you are injured, get medical attention immediately. Sometimes people don’t realize they’re injured until the day after the accident, or delay getting treatment. But by “toughing it out” for days, sometimes weeks, before seeing a doctor, they don’t help themselves get better and they make their legal cases worse. Document your injuries. Don’t delay getting medical treatment. The insurance company will use any such delays against you.
● Don’t give a recorded interview or a written statement. Often after an accident insurance company representatives will call and request a recorded statement. Sometimes an agent will offer to come to your house, and write down what you tell them and ask you to sign it. Sometimes the company will send you a form, and ask you to write what happened and draw a diagram. Don’t give such a statement, either to the other driver’s insurance company or your own. Don’t write the narrative. Don’t draw the diagram. If a company wants a statement from you, that means there are important legal issues in the case. Politely decline any recorded statement until after you consult with your injury lawyer.
Follow medical advice. If a doctor in the emergency room tells you to follow up with your family doctor or an orthopedic surgeon, make and keep the appointment. If your doctor sends you for diagnostic studies or physical therapy, follow that advice. Clients who ignore the treatment recommendations of their physicians neglect their health and damage their cases.
Start with your own family doctor for treatment or a referral. Clients sometimes think they should go to an “accident doctor” their lawyer recommends. In fact, such a referral may seriously damage your case, as the insurance company will suspect a fabricated injury. It is usually best to go to your family doctor initially for treatment. If you need to be seen by a specialist, let your family doctor refer you. If you’re injured and have no doctor, or if you have no medical insurance and cannot afford treatment, talk to your lawyer. Your lawyer may be able to help you get necessary medical attention.
Tell the truth about your injuries and your case. A single lie can ruin a personal injury case. So protect your credibility. Be truthful with your doctors about your injury and what conditions you had in the past. Don’t pretend to be disabled if you aren’t. If the insurance company suspects your claim is false or inflated, they may hire investigators to follow and photograph you. With any injury case, honesty is always the best policy.
Don’t sign a medical authorization or a “medical release form”. Often after an accident the insurance company will send a letter asking you to sign a medical authorization so that the company can obtain your medical records and confirm your injuries. Don’t sign such an authorization. Consult an experienced personal injury lawyer instead.
Don’t sign a lien letter or assignment. Often after an accident your own medical insurance company will send a letter asking you to repay the insurance company for accident related medical bills it paid. Don’t sign such a letter. Under Connecticut law your medical insurance company is probably not entitled to be repaid out of your injury settlement. Your lawyer will tell you if you have to repay any medical insurance benefits you receive, and when, and how much you have to pay.
Take photos. Photographs can prove invaluable in proving disputed aspects of your case. Take pictures of the damage to your car. If you were caused to slip and fall, take pictures of what you fell on. If you slipped on ice or snow, take photos as soon as possible-before you see a lawyer. Also, have a friend or family member photograph any injuries that are visible, such as cuts, bruises, stitches or casts. Take lots of pictures every few days or each week until the injury heals.
Keep your paper records. Save receipts for prescriptions, medical instruction sheets, medical bills, police “accident basic sheets”, and any documents you receive. Give these to your lawyer.
Save any physical evidence. In a serious auto accident, don’t “sign away” your totaled car before first clearing it with your lawyer. The wreckage may contain valuable evidence. In a slip and fall case, keep the shoes and clothes you were wearing. Don’t wash any stains off the clothes. If you were injured by a product, save all the product pieces as well as the packaging and instructions. It can be very difficult to prove a product liability case without the product. If you had orthopedic surgery, ask your surgeon for the hardware, pins and screws the doctor removed.
In a death case, ask for an autopsy. If you suspect that a loved one may have died due to medical negligence, ask for an autopsy. The autopsy may provide critical evidence about whether malpractice caused the death.
Insurance Company Tactics
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.
Making Nice. Insurance representatives (often called adjusters) are trained to be nice to injury victims who don’t have attorneys. Insurance company studies show that people treated in a friendly way are more likely not to hire lawyers. Studies show that injury victims without lawyers settle their claims for much smaller amounts. So if you don’t have a lawyer, don’t be surprised that your insurance adjuster calls frequently to ask about your medical treatment. Don’t be surprised if they seem kind and deeply concerned about your welfare. But don’t believe they have your best interests in mind. And remember, during every conversation your insurance adjuster will be taking notes, and what you say may be used against you later.
Requesting Unnecessary Information. Insurance companies have many excuses not to settle meritorious cases. One excuse is that their file isn’t “complete.” In other words, they want every record, every bill, every piece of paper concerning your case before they will evaluate it for settlement. Often they want documents having nothing to do with your injury, including old medical records from long ago. They are looking for information to deny your claim or reduce the amount of the settlement.
Deliberate Delay. By holding onto your settlement money, the insurance company earns interest on that money. So delay is to its advantage. Early in the case, the insurance company may claim it doesn’t have all the medical records. In the middle of the case, the insurance company will insist that you be evaluated by a doctor they choose. At the end of the case, if it goes to court, the insurance company will refuse to settle until the case is scheduled for trial. Delay is usually in their interests.
Disputing Medical Treatment. The other side’s insurance company will contest the amount of treatment you had. Sometimes they will claim you received “too much” treatment for your injuries, or that the treatment was “unnecessary.” Many insurance companies use computer programs to “prove” that you over-treated or that you should have recovered more completely than you have. On the other hand, if you don’t pursue regular treatment, the insurance company will argue this pattern proves you weren’t seriously injured in the first place.
Hiding the Coverage. Until a lawsuit is filed, many insurance companies refuse to disclose the amounts of their policies. And if they finally reveal the amount of the policy, they’ll neglect to disclose an excess or “umbrella” policy with additional coverage.
False Defenses. Because they make money from delay, insurance companies will use any excuse to postpone a fair settlement. Sometimes their insured will claim that the police report was wrong and that you caused the collision. In such cases, even where the insured’s version is contradicted by eye-witnesses, the insurance company will refuse to settle because they have a defense, however questionable it may be.
Settlement Offers. Insurance companies take advantage of the misfortunes of injured people. They know that money is tight when you’re out of work and injured. Every year, starting in late November, our firm gets calls from insurance adjusters, offering our clients low-ball settlement offers. They know that lawyers have an ethical duty to convey settlement offers to the client. The insurance companies know our clients need money for bills and Christmas. They offer money at times when the client is most pressured to take it.
Invading Your Privacy. Insurance companies routinely hire investigators to follow and photograph accident victims. No law prohibits an investigator from talking to your neighbors about your activity level, or conducting video surveillance without your knowledge. The insurance company may not have to disclose their surveillance information until the case is almost ready for trial.
Uncovering Your Injury History. Insurance companies all contribute to a computerized data bank which keeps track of all claims filed in the United States. Within minutes of receiving notice of your claim, the insurance company can run a search listing all prior accidents and injuries. So by withholding information about prior injuries from your doctor or lawyer, you won’t prevent the insurance companies from uncovering your previous claims. In fact, they will know when and where you were injured, the type of injury, and the settlement you received. The companies wait for injury victims to lie under oath about prior injuries, and then confront them with the truth. Such a lie is far more damaging to your case than admitting the prior injuries honestly and up-front.
Do You Need a Lawyer?
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:
- The insurance company will do a thorough investigation of your case. You won’t.
- The insurance company has unlimited financial resources. You don’t.
- The insurance company knows what your case is really worth. You don’t.
- The insurance company knows the laws that apply to your case. You don’t.
- The insurance company lawyers know how to defend a case in court. You probably don’t know how to bring a lawsuit.
- The insurance company “negotiates” settlement for profit. You don’t.
Paying Your Injury Lawyer
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.
Access to the best. Nearly all injury lawyers charge the same fee for their work on a case (usually one third of the gross settlement, although for some high damages cases a sliding fee scale may apply to reduce the fee below one third). For this reason, you can hire an outstanding injury lawyer in your community for the same fee you would pay to any other lawyer, regardless of experience or area of professional interest.
Common interest. You and your lawyer are always on the same side. The more you get by way of settlement, the more the lawyer receives as fee.
No risk. Because you aren’t paying the lawyer an hourly fee, you aren’t risking any of your own money on the merits of the case. If there is no recovery, there is no legal fee and the lawyer normally bears the costs of the litigation.
An honest view of your case. Because the injury lawyer only gets paid if he or she recovers money for you, injury lawyers are generally careful to take meritorious cases. No lawyer will handle your case on a contingency fee if the case has no chance of success.
Promotes access to justice. The contingent fee system opens the American justice system to the poor and disadvantaged who ordinarily can’t afford to pay a lawyer in advance or at an hourly rate. Often in injury cases, the victim is out of work with strained finances. With the contingent fee system, an injury lawyer will take a case even when the client can’t pay a normal hourly billing rate or the costs of litigation in advance.
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.
Choosing a Lawyer
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.
Hire the best lawyer for your case. Since almost all personal injury lawyers are paid the same way (generally, a percentage of the settlement they secure), the client pays the same fee whether the lawyer is just out of law school or one of the premier trial lawyers in the state. Why not hire a highly skilled lawyer for your case? In the personal injury field, the best costs no more than the rest.
Look for a track record of experience and success. Although lawyers can’t typically advertise themselves as specialists, it makes sense to hire a lawyer who focuses his or her practice on personal injury cases. You shouldn’t hire a real estate lawyer for your injury case, any more than you would hire a dermatologist to perform back surgery.
Ask a lawyer for a referral, if you know a lawyer. Ask that lawyer who he or she would hire as a lawyer if they were seriously injured. Tell the lawyer you want two or three names of the best personal injury lawyers in the community. At our firm we frequently receive client referrals from other lawyers familiar with our record.
Use the internet to find a qualified injury lawyer. There are three reliable rating services for lawyers easily accessible on the internet. Using anonymous surveys, each of these services bases its rating of the particular lawyer or firm on the evaluations by other lawyers in the community.
Martindale-Hubbell (martindale.com) has been long used by lawyers as a rating and search service. Lawyers listed are rated A, B, or C, according to their skill level, and “V” if they satisfy ethical standards. Your lawyer should be rated either AV or BV.
Martindale also publishes a book, titled “The Bar Register of Preeminent Lawyers” which, according to Martindale, includes only those selected law practices that have earned the highest rating in the Martindale-Hubbell Law Directory and have been designated by their colleagues as preeminent in their field.:
“The Best Lawyers in America” (bestlawyers.com) is an
attorney rating service that selects a few premier lawyers based on their professional reputation among other lawyers. At the website, enter a local city and add the category “Personal Injury” to find a listed lawyer in your community. If a lawyer is listed in “The Best Lawyers in America” he or she is likely to be a very experienced and capable professional. The Best Lawyers selection criteria are described in their website.
SuperLawyers (superlawyers.com) is a publication of Key
Professional Media, Inc., which provides a listing of outstanding attorneys that can be used as a resource to assist attorneys and consumers in the search for legal counsel.” Superlawyers.com lists lawyers by state, city and practice area.
Look for clues in the yellow pages. Don’t just turn to the biggest or first ad. Instead, use the yellow page advertisements to research lawyers. Read the ads until you find one who has been selected for membership in “The Best Lawyers in America,” or is AV rated by Martindale-Hubbell. Then go to the law firm’s website for more detailed information.
Use the internet to learn more about a lawyer. Most lawyers maintain websites. Go to the website, and read about the lawyer’s qualifications and experience. Search individual websites to find a lawyer listed in “The Best Lawyers in America.” Dig into the website and look for a track record of relevant experience and success.
If you are using Google, Yahoo, or some other “search engine”, limit the search to “personal injury lawyer” or “medical malpractice lawyer” in your community. Be wary of “help” or “finder” sites that offer to connect you with a lawyer. Instead, use the internet generated list of lawyers and law firms as a starting place. Then go to the individual firm websites. Typically, a law firm’s website will contain information about the firm’s previous trials and results, as well as the qualifications of individual lawyers. Read the firm’s description, the lawyer’s biography, any case examples, and a list of reported decisions.
Find a lawyer with the resources to prosecute your case. Particularly in more serious cases-such as malpractice or products liability claims-the litigation may go on for years and be very costly. Be sure that your lawyer has experience with major cases, the personnel to staff your case adequately, and the financial means to advance the costs of your case.
● Find a lawyer who will handle your case through the end. Some lawyers sign up personal injury clients knowing they will “forward” their cases to other firms. Ask your lawyer if he or she will refer your case to some other law firm, or stay with your case through trial or settlement.
Interview your prospective lawyer. Most personal injury lawyers offer a free consultation and will talk to you about their qualifications and how they would handle your case. Connecticut law requires that all contingent fee agreements must be in writing and signed by the client. To hire a lawyer requires signing a fee agreement. Explain to the lawyer that you want to take time to make your decision, and take the fee agreement home to review. Ask him or her for written materials about qualifications and experience. Ask him or her about staff and if other lawyers will be working on your case. Even if you like the particular lawyer, take the time to carefully consider your opinion. If you don’t like the lawyer, consult with someone else.
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.
Paying the Medical Bills
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.
What Your Injury Lawyer Will Do
In working on a case, an experienced injury lawyer does many things the client may not know about.
Before the Law Suit is Filed
Before the law suit is filed, your injury lawyer may do some or all of the following work on your case.
● Meet with you. Listen to the account of what happened.
● At the initial conference explain how a personal injury case works.
● Explain the fee agreement, and provide it to you in writing.
● Obtain important documents and evidence, such as the police report, photos of the accident scene or vehicles, medical records and bills.
● Review your own insurance coverage to determine how bills will be paid.
● Hire an investigator to interview witnesses or take photographs.
● Represent you in disputes with the insurer about getting your car repaired.
● Assist you in getting a fair price for your car if it is “totaled.”
● Analyze the legal issues, including fault and insurance
● Advise you concerning any criminal charges or “tickets.”
● Obtain medical records and reports from treating doctors to determine the need for future treatment or the extent of disability.
● Advise you about filling out insurance forms or giving a
“statement” to an insurance company.
● If you are going to give a “statement” or a recorded interview, represent you during that process.
● Communicate regularly with you about the progress of the case.
● Determine whether there are liens on any recovery in the case.
● Communicate with the insurance company, and send it reports and records documenting the injury and legal liability in the case.
● Discuss with you whether the case should be settled before bringing a lawsuit.
● Communicate all settlement offers to you.
● Attempt to negotiate a fair settlement.
● Review settlement documents before you sign them.
● Provide you with a complete accounting of your gross
● Pay fees, costs and liens, and pay the net recovery to you.
● Advise you concerning the tax consequences of your
recovery-and that personal injury settlements are usually tax-free.
Filing the Law Suit
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 wrongful death cases, open an estate in probate court.
● In malpractice cases, obtain any necessary medical opinions and “good faith certificates.”
● Prepare a complaint that properly pleads the material facts and legal theories.
● Identify all responsible defendants and summon them properly before the court.
● Prepare written questions and answers, and exchange that information with the opposing lawyer.
● Protect your case from unfair or improper legal arguments by the defense.
● Research, draft and argue written motions and claims of law before the judge.
● Protect your rights on counterclaims brought against you by the defense.
● Assert your claims against any “third parties” brought into the case by the defense lawyers.
● Object to unfair or biased “independent medical exams.”
● Prepare you for your oral deposition taken by the opposing lawyer.
● Take the deposition of the defendant, and any important non-party witnesses.
● Make a recommendation to you, and if appropriate file an “Offer in Compromise.”
● Set up settlement conferences with the court or with private mediators.
● Communicate regularly with you about the case.
● Attempt to settle the case before trial.
● If a fair settlement isn’t possible, prepare the case for trial.
● Meet with witnesses, physicians, and you to prepare testimony.
● Prepare exhibits to use in front of the jury.
● With you present in the courtroom, select a jury to hear the case.
● Prepare appropriate instructions for the jury, and protect against unfair instructions from the other side.
● Conduct the trial of the case before the jury: make an opening statement, call and question witnesses, offer exhibits, argue objections to evidence, argue motions, make necessary objections to defense evidence, cross examine defense witnesses, make a closing argument or summation, prepare jury instructions, and await the verdict.
● Continue trying to settle the case in a manner advantageous to you.
● Communicate any settlement offers to you during trial and make recommendations regarding the best course of action.
● Analyze the jury verdict to determine if either party has grounds for an appeal.
● Represent your interests at a “collateral source hearing” to determine whether any paid medical bills should be subtracted from the verdict.
● Recommend to you whether to appeal or accept the jury’s verdict.
● If appropriate, represent your interests in the Appellate Court and, if necessary, the Connecticut Supreme Court-or in the Federal appeals courts if you have a Federal case.
● Negotiate and review any settlement papers before you sign them.
● Verify, compromise if possible, and pay any proper liens against your settlement or judgment funds.
● Obtain, pay out, and account to you for money obtained by judgment or settlement.
● Advance all of the money (court costs) necessary to do any or all of the above.
● Do whatever else is necessary, within the law and the rules of legal ethics, to present your case in its strongest possible light.
Uninsured Motorist Cases
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.
Fair and Unfair Settlements
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.
● Neck sprain after a rear end collision. Three months of treatment with chiropractor but no permanent injury. Settlement of $7500.
● Finger injury following a “T-bone” collision. 5% permanent disability of the hand with the possibility of future surgery. Settlement of $21,000.
● Fall-down with injury to teeth. Settlement of $30,000.
● Permanent back and neck injury after bus collision. No surgery. Trial verdict of $69,000.
● Facial scar after dog-bite. Settlement of $75,000.
● Rotator cuff shoulder injury with surgery following auto accident. Settlement of $110,000.
● Rear end auto collision with neck surgery but little lost time from work. Settlement of $350,000.
● Machine malfunction causing amputation of finger tips of machine operator. Trial verdict of $650,000.
● Rollover auto collision with multiple neck surgeries and lost income. Settlement of $900,000.
● Wrongful death medical malpractice in failing to diagnose a bowel obstruction in an elderly person. Settlement of $1,100,000.
● Hospital negligence causing elderly woman to be confined in a nursing home for remainder of her life. Trial verdict of $1,400,000.
● Electrical shock injury with multiple back surgeries. Settlement of $1,650,000.
● Head-on collision. Death. Settlement of $1,900,000.
● Misinterpretation of CT scan. Patient suffered stroke and permanent disability from employment. Settlement of $3,000,000.
● Hospital negligence, traumatic brain injury. Settlement of $3.5 million.
● Construction site collapse with leg amputation and multiple surgeries. Settlement of $5 million.
The Costs of Your Case
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.
To Settle or Not to Settle
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.
Damages and Losses
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.
● Physical pain and suffering, both in the past and in the future.
● Emotional stress and suffering, including depression and anxiety.
● Permanent disability of a particular part of the body.
● Medical and hospital bills, both in the past and in the future.
● Lost wages and benefits.
● Future loss of earning capacity.
● Scarring or disfigurement.
● Death or shortened life expectancy.
● The cost of future surgery or nursing care.
● The loss of enjoyment of life’s normal activities.
● Fear of future susceptibility to illness or injury
● Loss of consortium: the loss by one spouse of the relationship with the other spouse.
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.
Going to Court
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:
● Make sure you understand the question.
● Tell the truth.
● Don’t volunteer-answer only the question you are asked.
● Don’t guess. If you don’t know or don’t remember, say so.
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 Doctors and Hospitals
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.
Types of Medical Malpractice Injuries
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.
Misdiagnosis or Failure to Diagnose
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 Attack and Stroke
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.
Surgical and Post-Operative Errors
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.
Birth Injuries and Cerebral Palsy
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.
Malpractice Law Suit Requirements
Remember, all three essential elements of the case must be present before your lawyer can file a medical malpractice lawsuit:
● There must be clear provable negligence by the medical provider. To be negligent, the care must fall below, or “breach,” the prevailing professional standard of care.
● The negligent act must cause a specific injury that would not have otherwise happened.
● The resulting injury must be serious-probably “life changing” in severity.
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.
Workplace Injuries and Workers’ Compensation
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.
Click here to see Appendix I.