Why do I Need a Lawyer to Handle my Injury or Wrongful Death Case?

You may not (except for a wrongful death case – it is my opinion that you will always want to hire an experienced lawyer to assist you when seeking damages for the wrongful death of a loved one). In life, you are confronted with small problems that you can handle with a little guidance and ingenuity. Good examples of this are fixing a leaking faucet or a faulty electrical outlet at your house. But even if you are not a plumber or electrician, you may very well be able to fix the problems on your own. Unfortunately, however, you may also flood your home or burn it to the ground. Similarly, you may be able to resolve your bodily injury claim with the insurance company without the need of a lawyer. But like flooding your house or burning it to the ground, you may also do something — or not do something — that makes your case worth much less or worthless altogether. The following are issues that can come up when making a claim to recover damages in a typical injury or wrongful death case that if you do not know what you are doing and handle incorrectly can devastate your case:

1. How much insurance is available to pay my claims?

The amount of insurance available to pay your claims is an extremely important question. If there is no insurance or very little insurance, your case will unfortunately probably be worthless or worth very little. When there is very little or no insurance coverage, the at-fault party rarely has any personal assets and the result is that there is no way to recover for your claims. It is extremely important that you (or your lawyer) find all the coverage available to ensure claims can be fully paid. I will use an automobile/trucking case as an example.

Typically, the at-fault driver will have liability coverage available to pay your claims. But determining the total amount of that coverage is not always easy to do. If the driver is driving his or her own personal vehicle, we expect he or she will have a liability policy that covers the vehicle and the driver. If the driver is driving his or her friend’s vehicle, there is probably also a separate liability policy on the vehicle itself which will add to (or stack on) the driver’s policy. Also, if the driver is driving a vehicle for his or her employer, there may be a separate business or commercial policy that is available to provide coverage. In this case, the driver’s personal policy may or may not also provide coverage.

The question of the amount of liability coverage in tractor-trailer case is even more complicated and is beyond the scope of this discussion. What insurance is available is complicated by the number of possible sources of insurance, including the driver’s, the trucking company’s, the shipper’s, the broker’s, insurance on the trailer and other sources. This issue is also complicated by the state and federal insurance requirements on trucking companies and their drivers.

What if the other driver is uninsured or the insurance he or she has is minimal and inadequate to compensate you for your claims. In this situation, it is important to determine the extent of uninsured or underinsured coverage available to pay your claims. A number of questions need to be asked to make this determination, including: (1) whether the injured driver has this type of coverage on his or her own insurance policy, (2) whether driving members of the injured driver’s household have separate uninsured or underinsured motorist coverage on their vehicles, (3) whether these coverages can be combined (stacked), (4) whether these coverages are “set off” or “excess” to the available liability coverage, (5) if the driver does not own the vehicle, whether the owner of the vehicle has uninsured or underinsured motorist coverage on the vehicle, (6) whether this coverage is “set off” or “add-on” to the available liability coverage, (7) whether this conference stacks, and (8) which of all these coverages is primary, secondary, etc.

These are just a few of the many questions that may be relevant in determining the extent of the liability and uninsured or underinsured motorist coverage available to your accident. If you do not know how to determine the answers to these questions and/or what answers mean, you will probably need an attorney to help you with your case. Not discovering all the coverage available to pay your claims is the functional equivalent of flooding at your house or burning it down.

Non-automobile/trucking case can also be very complicated regarding how much insurance coverage is available to pay your claim. Whether your case is an auto/trucking case or a case arising from some other dramatic event, if you have substantial bills (i.e., more than $10,000), you should probably at least consult with an experienced injury attorney regarding these insurance issues. The more serious the injury, the greater the need for the assistance of a competent accident injury lawyer.

2. Do I have a claim for lost wages?

In Georgia, you are entitled to seek damages for lost income caused by injuries suffered in an accident. You must specifically prove your lost income, however, and the amount cannot be left to speculation. If you are an employee, it is typically very easy to prove your lost income. For example, if you earn $20 an hour and work 8 hours a day and you miss 45 days of work, your lost income would $7,200. That is 45 days x 8 hours a day x $20 = $7,200.

What if you miss 45 days of work, but you are paid because you use accrued sick time, vacation time, short term and/or long-term disability, et cetera? How does this affect your lost wage claim? Generally speaking, it doesn’t, but an insurance company might tell you that if you use these benefits to be paid during the time you are absent from work, they don’t owe you for lost income. You need to be ready to tell the adjuster why they are wrong.

It is often much more problematic when you are self-employed to determine your lost wage claim. Typically, when you are self-employed, you do not pay yourself by the hour. Rather, you may have income to your business and after you deduct all your business expenses you are left with your net income. Determining your lost income in this situation is difficult because oftentimes the relationship between income and expenses is not constant. Also, your income might be inconsistent for many reasons including that your business is seasonal or based on obtaining specific contracts or both, like contracting to build swimming pools. This work is dependent on both the economy in general and the season of the year. You may be able to prove lost income when you are self-employed, but it is my opinion that it is almost always too complicated to prove without an attorney.

3. What medical bills can I recover?

Generally, medical bills for treatment for injuries caused in the accident are recoverable. The fact that your bills were paid by your medical insurance company or some other source like Medicare or Medicaid does not mean you cannot recover the full amount. However, you may have to reimburse your insurance company, Medicare or Medicaid. The problem you will have will be determining when you do need to pay these entities back for what they paid and getting them to compromise the payback amount. An experience lawyer will know how to handle both these issues.

4. How to pay your medical bill to obtain the best settlement?

This is a little more complicated than you might think. How you pay your medical bills and what insurance you use can have a significant impact on the value of your case to you. Below, I explain in order the way you should try to have your bills paid by the insurance or governmental assistance that is available to you.

Major Medical Insurance. If you have major medical insurance coverage, like a PPO or an HMO, most likely provided through your employment, try to run all your bills through this coverage first. The reason you want to do this is because your insurance, whether Blue Cross Blue Shield, Aetna, Kaiser, United healthcare, etc., will pay a contract amount set by a fee schedule in full payment to the medical provider which is most likely significantly less than the actual amount of the bill itself. The effect of this is that when your case settles, instead of having to pay the full amount of the bill, at most you will only have to reimburse your insurance company for the amount they paid on the bill, which is often a significant savings. Often times, your insurance company is not entitled to be reimbursed, and even if it is entitled to reimbursement, the insurance company will take a compromise amount further reducing what must be paid back and putting more money in your pocket.

For example, the emergency room bill is $10,000 and Blue Cross Blue Shield pays $4000 in total payment of the bill according to its fee schedule. Assuming Blue Cross Blue Shield has the right to reimbursement out of your settlement, you immediately save $6,000 by having Blue Cross pay the bill. It is further possible that Blue Cross will compromise that amount at a minimum by deducting the percentage of attorney’s fees (which pre-suit are typically one third) and will accept $2800. If this happens, you end up saving $7,200 (which goes to you) by Blue Cross paying the bill.

Medicaid and Medicare. Medicaid and Medicare work a lot like major medical insurance. If you do not have major medical insurance but you are covered by Medicaid or Medicare, if you can, you will probably want to run your medical bills through Medicaid or Medicare before using any other type of insurance. The reason for this is that most medical providers, including hospitals, are required to take Medicaid or Medicare payments that are set by a fee schedule in total payment of the actual bill. As with major medical coverage, Medicaid and Medicare will have to be reimbursed, but the reimbursement amount will most likely be significantly less than the actual bill itself, again putting more money into your pocket when the case is settled. There is a problem, however, when dealing with Medicaid and Medicare. It is really more of a problem with Medicare. Both of these entities can be difficult to communicate with to determine the amount that needs to be reimbursed. Medicare is the more difficult of these two to communicate with. Also, there is another real potential future problem with Medicare. There have been very serious discussions by Medicare about requiring setting aside money from a settlement to fund future medical treatment that may be related to the accident. The effect of this is that it takes money out of the settlement that would have gone directly to the client. This is already done in workers’ compensation situations, and can be a real problem if it becomes applicable in personal injury lawsuits. At this time, however, it does not appear to apply in this arena, and notwithstanding these problems, if the only coverage that is available is Medicare coverage, it should be used to pay the bills.

Medical Payments Coverage. Often, our clients have medical payments coverage (MPC) provided through their own automobile insurance policies. If they also have major medical coverage, or Medicaid or Medicare, we strongly suggest that clients use the major medical or Medicare or Medicaid first to pay the bills and to use the MPC to reimburse the provider later. That way the client still gets to take advantage of the fee schedule required by the insurance company or government entity. The medical payments coverage can then be used to reimburse the major medical insurance or Medicare/Medicaid putting more money in the client’s pocket.

For example, assume a $20,000 hospital bill and that the hospital takes $5,000 from Blue Cross Blue Shield in full payment. Assume you have $10,000 in MPC on your automobile insurance coverage. If you use the $5,000 to reimburse Blue Cross Blue Shield you end up paying nothing for the $20,000 hospital bill. If you use the medical payments coverage to pay the hospital directly, you would still owe $10,000 to the hospital. This is because you do not have a fee schedule or contract with the hospital to pay an amount in full less than the actual amount of the bill.

Of course, if you do not have major medical coverage or Medicare or Medicaid, you will want to use your MPC to pay your bills. Even though there is no contract and no fee schedule with the medical provider, once the bill is paid by the MPC you no longer owe that amount. The savings here will equal the amount of the bill that is paid.

Treat with a medical provider on a lien. This option is really only acceptable if you do not have any major medical coverage, Medicare or Medicaid does not apply, and you have no medical payments coverage, and you cannot afford to pay youself. Of course, the first reason this is not a good option is because you will be paying out of your own pocket and/or your settlement. The second reason is that many times medical providers — like chiropractors — who will treat on a lien have bad reputations with insurance companies, and your case may not be taken seriously by the insurance company if you treat with one of these medical providers.

Pay for your treatment with cash or credit card. This is your final option. If you do not have any other sources of payment and the medical provider will not treat you on a lien, you will have to come up with the payments as you go. This can be done with cash/check or a credit card. If you can pay cash, you should do that first. If you cannot pay in cash, use a credit card if you have one. Even though there will be interest on the payments, if you need the treatment to heal, you should try to get it any way you can, and this will help your case. If you don’t treat when you are in pain, it becomes almost impossible to get a jury to believe you were injured if there isn’t consistent treatment. Unfortunately, the fact that you could not afford the treatment is not admissible in Georgia as an excuse for not getting treatment.

5. How much pain and suffering are you entitled to?

In Georgia, there is no specific formula you can use to calculate your pain and suffering caused by injuries suffered in an accident. Everyone experiences pain differently, and it is up to the jury to determine what the value of your pain and suffering claim is. In Georgia, the determination for pain and suffering damages is the enlightened conscience of a fair and impartial jury applied to the facts and circumstances of your specific case. I know this doesn’t really give you a lot to go on. Some of the things you can specifically point to, however, include your physical pain and suffering, your mental pain and suffering, your emotional distress, humiliation, shock and fright, and your diminished capacity to work, labor, and to earn money. You are also entitled to both past and future pain and suffering if supported by the facts of the case.

Making an appropriate claim for pain and suffering can be the most difficult if you handle your claim without the assistance of an experience injury lawyer. Without the years of experience handling these types of claims, it is almost impossible to have any idea what is appropriate pain and suffering damages for the type of injury you sustained. Even if you do not hire a lawyer to assist you with your claims, you might want to seek the advice of an experience attorney on this issue.

6. How to handle medical provider’s liens, Medicare liens and Medicaid liens, and medical insurance companies seeking reimbursement for medical bills they paid?

If for no other reason, this issue alone should make you think twice about handling your claim without the assistance of an experience injury or wrongful death attorney. Resolving medical liens after a case is settled can be very complicated and if handled incorrectly, can have serious consequences and significantly lower the amount of money you can keep from your settlement.

First, how you handle medical liens begins with how you paid your medical bills. I discuss this topic above and you should read it. How you pay your bills will establish what types of liens might exist when your case is settled. You will need to be able to determine whether the claim against you for reimbursement is an actual lien or not. This is critical. Real liens in Georgia include statutory hospital and other medical provider liens. These liens are actually filed by the hospital or medical provider and cannot be ignored when you settle your case. Other liens that cannot be ignored are Medicare and Medicaid liens. Major medical insurance claims may have the force of a real lien or they may not. It will depend on whether the insurance policy in place is a self insured ERISA plan.

If there is a valid lien, you must satisfy or otherwise resolve it when you case is settled. The value of having a lawyer to assist you with this is experienced injury and wrongful death lawyers will know if there is a valid lien or not. If there is no lien, you may not have to reimburse any amount. And, even if there is a valid lien or right of reimbursement, an experienced injury lawyer will know how to best get the lien holder to compromise on the amount being claimed. This is something they do on a daily basis and the likelihood of you compromising the lien to the extent that your attorney could is slim to none.

Like I mentioned above when talking about pain and suffering, even if you do not hire a lawyer to assist you with your claims, you might want to seek the advice of an experience attorney on this issue.

7. Is your claim complicated?

If you suffered injuries because of medical negligence, a tractor trailer accident, a dog attack, a slip or trip and fall, a fire or explosion, or really anything other than a simple motor vehicle accident, you will most likely want to hire an experienced injury lawyer to assist you with making claims for those injuries. Similarly, if your injuries are catastrophic or complicated, or if a family member has been killed, you will again want to seriously consider hiring an attorney to assist you with your claims.

8. How long can I wait until I file a lawsuit for personal injuries and wrongful death?

Generally in Georgia, most lawsuits for personal injuries and wrongful death must be filed within 2 years of the anniversary of the injury. However, there are numerous exceptions to this general rule, and if you have any doubt at all, you should consult with an experienced injury and wrongful death attorney. For example, Medical malpractice has many exceptions. If you are seeking damages for injuries arising from medical malpractice, you will want to consult an attorney immediately.

Also, even when the 2 year time period applies, there are also shorter legal deadlines in certain situations typically when you are bringing claims against governmental agencies. In these situations, you are often required to give the agency notice of your claim within 6 months or less. If you don’t give the proper notice, you are barred from filing an injury lawsuit against the agency even if you do so within the 2 year statute of limitations.

These are just some of the issues you should be aware of that might give you pause if you are thinking about handling your injury claim without the assistance of an experienced injury lawyer. There are many, many more. Remember, hiring an experienced injury lawyer might be the best decision you can make to protect you, your family and your future.