1 How to Handle your Own NC Personal Injury Claim Jeffrey Allen Howard, Attorney at Law, PLLC jeffreyhowardlaw.com
2 Jeffrey Allen Howard Jeffrey Allen Howard is the owner, operator, and managing attorney at Jeffrey Allen Howard, Attorney at Law, PLLC. Since 2001, he has been practicing law in North Carolina. His practice focuses on personal injury and workers compensation claims. More information can be found at jeffreyhowardlaw.com.
3 TABLE OF CONTENTS: Set-Up Phase 5 Treatment Phase 9 Settlement Phase. 13 What If None of That Works?..16 Disclaimer: This information offered in this book is for offered for informational purposes only, and does not constitute legal advice nor does it create an attorney/client relationship. I am admitted in the state of North Carolina only and make no attempt to opine on matters of law that are not relevant to that state. This advice is based on general principles of law that may or may not relate to your specific situation. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. Seeking direct advice from an attorney in person may be advised.
4 CHAPTER 1: Set-Up Phase Who you talk to, what you say, and why. // Page 4
5 How to Handle Your NC Personal Injury Claim Ah, this is the tricky part. Actually, all of it is tricky. I would urge you to reconsider handling this claim all alone; remember, you probably don t do this for a living, and you re going to be dealing with people who a) have every incentive to take advantage of you and not give you what you deserve, and b) are highly trained to get their way in these situations. Are you sure you re willing to risk your claim by handling it on your own? Of course if things go awry you can always try to hire an attorney later, but just remember that the more of this that gets done without an attorney, the more problems might be created for the attorney to overcome. If you re sure you want to handle this on your own, I believe this book may help you handle it correctly and avoid some pitfalls. So if you insist, let s move forward: Clearly, your main concern will be for the health and well-being of everyone involved in the accident. So of course you will want to talk to 911, EMS, and appropriate health care providers to make sure everyone s (including your own) health care needs are being taken care of. // Page 5
6 How to Handle Your NC Personal Injury Claim After an accident occurs it s best to think of it as a criminal situation: Anything you say can and will be used against you. After initial health care concerns are addressed you will be faced with two critical conversations: one with law enforcement and one with the auto insurance company for the at-fault driver. In North Carolina we have a horrible relic of English Common Law known as Contributory Negligence. is doctrine holds that if you are found to have been even 1% at fault in the accident in which you were injured you can receive NO compensation from the person who is 99% at fault. In the vast majority of states a situation like that would get you 99% of your damages, but in our fine state that gets you a goose egg, nada, zip, zilch. Now that you know that, your biggest hurdle will be avoiding making a statement that will compromise liability for your claim. In other words, don t say ANYTHING that could possibly be construed as you accepting blame for the accident, or in any way implicating an action on your part as being even a minor cause of the accident. I tend to keep my clients from making any statements period, but that s not always effective. // Page 6
7 How To Handle Your NC Personal Injury Claim This can lead to a bit of a Catch 22: If you don t give a statement to the cop, they may just take the other guy s word for it and say it was your fault, which is hard to get past. But if you do give a statement, it might be used against you. Tricky. Same goes with the insurance company. For law enforcement, I think it s best to give your most clear and concise statement as to how the accident happened, just try to avoid saying your were at fault. For insurance company investigators, I would err on the side of not giving a statement. If you have an accident where you were hit from behind while standing still, then you can more easily argue that they should just accept liability and move on. But if it s more complicated, then you might be in the Catch 22 where you could be darned either way. In that situation, if you don t give a statement, they may just deny liability, meaning there will be no settlement discussions unless you file suit. So if you re trying to avoid that, you may need to make a statement and do the best you can. In a generic context, it s virtually impossible for me to tell you what to say and what not to say. A lot of that will // Page 7
8 How to Handle Your NC Personal Injury Claim depend on what happened in your accident. Now that you know what you are trying to avoid, here are a few points to consider: Always err on the side of truth. That will save you headaches in the long run. When answering questions, do your best to answer with yes or no, or as simply as possible. Don t second guess yourself; stick to your guns and if they mischaracterize what you say, point it out to them. As long as it s true, don t state your speed of travel as even possibly being above the limit. In other words, if the speed limit was 55, don t say you were going around 55 or 60 mph. You were going 55 on the dot. Or you weren t. Whatever the case may be. But if you can avoid admitting to speeding, that s good. Watch out for intersection accidents! Just because your light was green doesn t mean you are clear to go; you still have a duty to look and make sure it s safe to proceed. So if that s your situation, make sure, as long as it s true, you say that you looked both ways, and determined it was safe to proceed. If you saw the guy coming, perhaps it appeared that he was slowing and preparing to stop So hopefully you get past the statement hurdle, and your claim is accepted. So what s next? // Page 8
9 CHAPTER 2: Treatment Phase Where are you treating, what do you share, and with whom should you share it. // Page 9
10 How To Handle Your Own NC Personal Injury Claim The number one thing to remember here is that if you feel injured, you should seek treatment. Period. Don t worry about what an insurance adjuster says, don t worry about who s going to pay for what. Your health is the most important thing and if you are injured, or even think you are injured, making sure your health needs are met should be your number one priority. So where should you go? The answer is wherever you want. I often explain to clients that my job as an attorney isn t to direct your medical care; after all, what qualifications would I have to do that? My job in this context, however, is to tell you what impact your health care decisions may have on your claim. At the outset, depending on how badly you are hurt, you may not have any choice about health care. If you are taken by EMS to a hospital, that s done. No choosing there. Just remember, if you can, to ask about all of the different entities involved in your care. You will want to know from whom to request bills and records when this is all said and done. More on that later. Afterward, your injury will guide your care. You may seek advice from your family doctor. You may go to a chiropractor, you might get physical therapy, acupuncture, massage therapy. You may need surgery. There are many options, dependent of course on your injury. Much of what you would need to know here is situation-specific, so it s difficult to generalize and give good information. However, // Page 10
11 How To Handle Your Own NC Personal Injury Claim there is some amount of general info that you may find useful in determining where to seek treatment: The sooner you seek treatment, the better. Insurance companies use gaps in treatment (time between the accident and treatment, or large time period between treatment) to devalue your claim. So if you re hurt, get treated ASAP; don t play tough.. If possible, it can be helpful to follow up with your primary care doc, who can then make treatment referrals for you. It will look better if someone else is saying you need the treatment, not just you choosing to get treated. Many victims with soft tissue injuries (sprain/strains, generally in the neck and back) choose to go to a chiropractor. Positives: They are specialists in these types of injuries and are very knowledgeable, generally. They will often withhold collection on their bill pending settlement, which helps with reducing out of pocket expenses. Negatives: Insurance companies often discount chiropractic bills unilaterally, making it hard to get their bills paid in full, and for whatever reason don t respect them as much as other providers, which can make settlement more difficult. // Page 11
12 How to Handle Your Own NC Personal Injury Claim You can get reimbursed for massage, but it is normally best to couple it with chiropractic or PT, and it is always best to have it prescribed, if possible, by a physician or health care provider of some type. If it s different than it was before the accident, it needs checking out. Many victims walk around with traumatic brain injuries, wondering what happened to them, simply never putting the accident together with their symptoms, as they can sometimes be delayed. If it doesn t feel right, get it checked out! There is a phrase you should learn right now: Maximum Medical Improvement. This means the point at which you have reached a plateau in your recovery from these injuries. You should not even think about valuing your claim or documenting your medical treatment until AFTER you have reached this point. How do you know you ve reached it? You will know, or your doc will tell you one or the other. Remember: It is best NOT to sign a blanket release for the insurance company to get your records and bills. Get them and provide them to the insurance company yourself! EVEN if the release says it s only for these injuries, health care providers almost never read them, and if the insurance company asks for unrelated stuff that may hurt your claim, they may give it up! Whatever you send may be used against you but you have to send something so do it. // Page 12
13 CHAPTER 3: Settlement Phase What to document and how, negotiating tips, dos and don ts. // Page 13
14 How to Handle Your Own NC Personal Injury Claim The chapter above briefly addressed not signing releases and taking personal responsibility for getting your records and bills. That bears repeating, as insurance companies can tell you they are only going to get related treatment stuff, but the next thing you know they have records about when you were born. So watch it! When you get your records and bills, ask for treatment notes and itemized bills from each and every provider. Remember that if you went to a hospital, there may be different physicians and radiology bills, so inquire as to where those requests should be sent. Recent legislation in NC allows defendants to get credit for your health insurance. While that s patently unfair, it s the law passed by your insurance-industry-friendly Republican majority. This means that you can only recover what your insurance company (and you) had to pay to satisfy your bills; in other words, the defendants get a credit for the health insurance contractual adjustment. So make sure you get this documented or they may not even talk to you. So now you ve gotten your records and bills, what else do you need. If you incurred lost wages, you ll want something from your employer to document what you lost and how much it was worth. Most employers will provide that, but sometimes they may give you hassle. Just make sure it states clearly the value of the lost wage claim. // Page 14
15 How to Handle Your Own NC Personal Injury Claim You will want to send all records and bills and lost wage documents to the liability adjuster AND to your Med Pay adjuster(s) (Med Pay won t care about lost wages, of course, but it s easy to put everything in one cd nowadays). This will go out with a demand letter. What s that?, you ask: A demand letter states what you think your case is worth. Don t start with what you want; start with a lot more than that to give you negotiating room. Well, what do you want? What is your case worth? The answer is I don t know! I use my judgment and experience, as well as that of other attorneys I know through consultation, to evaluate each case on a case by case basis, factoring in treatment time, costs, lost wages, pain and suffering, permanency, and other factors. How can you do that? It will be hard, as you won t have anything to go by. But there s an old saying that a case is worth what it settles for, so if you have a number you feel good about, use it as your goal. PLEASE remember that the days of getting three times the medical bills to settle every case are over. That just doesn t happen now. You will of course have a cousin who got a bazillion dollars for his case that was less severe than yours, but pay no attention to that. People lie. Do your best with what you ve got and cross your fingers. If you are handling it on your own, that s about as good as you can do. // Page 15
16 CHAPTER 4: What If None of That Works? Something awful has happened to the proverbial pooch, so what do you do now? // Page 16
17 How to Handle Your Own NC Personal Injury Claim I told you so. But you had to try! I cannot tell you how many people have come to me who tried to handle their own claim but now want help. It happens A LOT, though. There are really two types of problems that this creates: Claim damage and settlement snafus. Claim damage is messing up during the process saying the wrong thing, giving up the wrong info that causes the case to be worth less than it would have been otherwise. People inexperienced in this process make these mistakes without knowing it. That s the problem of amateurism. Settlement snafus occur when a pro se (non-attorney-having) party undervalues a claim and/or paints an adjuster in a corner as to settlement amounts. After that, getting an attorney involved to negotiate almost never does any good, as you have to at least begin litigation to get anywhere further. So what do you do now? You can try to get an attorney to help, but sometimes the damage has been done and there won t be much we can do to help. Not always, but sometimes. It s probably at least worth a call. I like to tell accident victims this: Using a personal injury attorney is like doing karate according to Mr. Miyagi, either you attorney hire YES, or you attorney hire NO; you attorney hire MAYBE/SOMETIME means sooner or later squish like grape. // Page 17
18 How to Handle Your Own NC Personal Injury Claim What does that mean? It means that in my opinion you should make your decision at the outset to either hire an attorney or not. Hiring an attorney at the beginning can help prevent problems and make less work for you. Trying to hire an attorney after you ve already tried to do this on your own may just create more problems than the attorney can fix. Think of it this way: Does it make more sense to try to build a house on your own, and then get a carpenter to fix your mistakes at the end, or to just hire a carpenter to do it right the first time? The choice is yours. Good luck! Jeffrey Howard // Page 18
19 DON T DO THIS ALONE!