HOW TO PROTECT YOUR PERSONAL INJURY CLAIM DURING A PANDEMIC
If you are injured due to the negligence (the unreasonably careless conduct) of another person or entity, you may be entitled to compensation for the harm that was done to you. Even though the coronavirus has closed many businesses across the country—including courthouses, medical offices and law offices—there are steps you can and should take to protect your health and your legal rights during this time of pandemic:
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1. SEEK EARLY AND CONSISTENT MEDICAL TREATMENT
One of the biggest mistakes you can make is failing to seek medical treatment after an injury-accident. This is true even during a national health crisis, for at least two reasons: TO PROTECT YOUR HEALTH Even if you do not require emergency medical treatment at the scene of the accident, seek a medical assessment from your doctor as soon as possible. Your doctor will be in the best position to evaluate your condition, especially with regard to soft-tissue and other potentially “hidden” injuries that may not surface for hours, days or even weeks after the initial trauma. Your doctor’s office may be working reduced hours or seeing fewer patients while stay-at-home orders are in place; if so, take the first available appointment. If you do not feel comfortable going to the doctor’s office due to the risk of COVID-19, ask about a telehealth appointment. Your doctor may be able to visit with you remotely and prescribe medication; suggest at-home treatments (ice/heat/stretching); or, perhaps, refer you to a specialist. Even physical therapy can be done via telehealth visits. Bottom line: Take all reasonable steps to get a medical evaluation of your condition, and then follow your doctor’s orders. This will help to ensure the best possible outcome to your injuries.
TO PROTECT YOUR LEGAL RIGHTS
The value of your case—that is, how much compensation you may be entitled to recover—will depend in large part on the story that is told in your medical records. If your records reveal delayed treatment or inconsistent treatment, the insurance claims adjuster will try to use this against you. “After all,” the adjuster will argue, “how injured could you have been if you did not seek treatment soon after the accident and follow-up with your doctor? Maybe some other event caused your injuries. Maybe your failure to seek treatment resulted in a more severe injury or longer recovery time than you would have experienced had you sought medical care sooner.” Don’t open the door to these arguments. While obtaining prompt and consistent treatment may be more challenging now, it is not impossible, and the success of your claim will depend on you making a reasonable effort to do so.
2. WRITE A “MEMO-TO-SELF” ABOUT THE ACCIDENT.
As soon as possible after the accident, get the details memorialized on paper. There is no magic formula here. Simply put the date at the top of the page, and then write about what happened to you. Describe the injury-accident in as much detail as pos-sible. Why is this important? Under normal circumstances, it can take several months to resolve a personal injury claim with the insurance company, and even longer if you have to file a lawsuit. This timeline may be extended further while the courts remain closed; once the courts reopen, there will be a backlog of filings, hearings and jury trials to work through. Your memo-to-self will help you (and your attorney) recall the events of the day long after specific details may have faded from your memory.
3. KEEP A JOURNAL.
Keeping a journal is important to your personal injury claim for the same reason your memo-to-self is important: to pre-serve a contemporaneous record of the impact of your injuries on your daily life, so that you can provide detailed evidence to support your claim, even many months after the accident occurred. Plus, keeping a journal has an added benefit: It is cathartic and may help speed your recovery. Here are a few guidelines to help you get the most out of this exercise:
• Be honest.
• Use your own words.
• Write about how you feel—physically, mentally and emotionally.
• Be specific. The more details you include, the stronger your journal will be. You might find it helpful to write about the “timeline” of each day. What happened and how did you feel from the moment you awakened to the moment you went to bed for the night?
• Be consistent. You do not have to make daily entries in your journal, but try to make regular entries.
• Keep it confidential. Do not show your journal to anyone, other than your attorney.
4. BE A GOOD RECORDKEEPER.
Keep all of your medical bills and receipts for medical-related expenses in a designated file (or folder or oversized envelope or shoebox). “Medical-related expenses” include expenses related to telehealth visits. Save your credit card statements and insurance EOB (explanation of benefits), if any, associated with these visits. Keep a record of these visits on your calendar, and take notes during the visit, if possible. Keep a record of your medications. Maintain a separate file to track your non-medical economic losses, including, e.g., pay stubs and W-2 forms.
5. BE CAREFUL ABOUT TALKING TO THE INSURANCE COMPANY FOR THE PERSON/ENTITY WHO CAUSED YOUR INJURIES.
If you file a claim with the insurance company for the person/entity who caused your injuries, it won’t be long before you receive a call from a claims adjuster. These calls can be a trap for the unwary. This is what you need to know:
THE ADJUSTER IS NOT ON YOUR SIDE.
You and the adjuster have different goals. You want to settle your claim for a fair sum in a reasonable amount of time. The adjuster, on the other hand, wants to settle your claim for as little as possible, regardless of how long that takes.
GIVING A RECORDED STATEMENT WILL NOT HELP YOUR CLAIM.
The adjuster may ask you to give a “recorded statement,” so that he can get your side of the story as part of his routine inves-tigation of the claim. Don’t be fooled. The adjuster wants to take your statement so that he can lock you in to a specific set of facts. He then will look for an opportunity to use those facts against you. If you make an innocent mistake or forget a certain detail, you cannot go back later and “fix” your statement without the adjuster questioning the credibility of your entire claim.
SIGNING A MEDICAL RELEASE WILL NOT MAKE THINGS EASIER FOR YOU.
The adjuster may ask you to sign a “medical release” or “medical authorization,” to give the adjuster access to your medical records and save you the “trouble” of having to gather all the relevant medical information. The trick here is that most of these insurance company authorizations are broadly drafted and give adjusters the right to delve into a claimant’s complete medical history. This allows the insurance company to pry into pre-existing conditions and medical issues that may be completely unrelated to your claim.
YOU DON’T HAVE TO ACCEPT THE ADJUSTER’S OFFER.
When you are injured and medical bills are starting to stack up, even a low settlement offer can be attractive. This may be especially true now, if you and your family are facing additional economic hardship due to business closures or layoffs or other issues related to COVID-19. That being said, you only get one bite at the settlement apple. Once you agree to a settlement, you cannot go back later and ask for more money. So, before you accept the adjuster’s settlement offer (particularly a lowball offer), consult with an experienced personal injury lawyer. A lawyer will be able to evaluate the offer and give you practical advice based on the law, your particular circumstances, and his or her experience in dealing with insurance companies.
6. LIMIT YOUR ACTIVITY ON SOCIAL MEDIA.
Social distancing may mean that you are relying more than ever on social media to stay connected with your friends and family. While, in general, this is a positive activity, you have to be cautious because social media can derail your personal injury case. Remember that anything you put on social media may be seen by the insurance adjuster handling your claim and used as evidence against you. To protect your personal injury claim, treat it like the private matter that it is:
• Set all of your social media accounts to the highest privacy setting.
• Do not post anything about your insurance claim, your accident, your injuries, etc. on any social media site.
• Ask your friends and family not to tag you in their posts.
• Do not accept friend/follow requests from anyone you do not know personally.
7. TALK TO AN EXPERIENCED PERSONAL INJURY ATTORNEY.
Although many law offices are closed due to COVID-19, attorneys are still working, using technology to communicate (via phone, email, video-conferencing) with current and prospective clients, opposing counsel, and the courts. Even during this time of pandemic, there are several ways a personal injury lawyer may be able to help you:
INVESTIGATE THE ACCIDENT.
Your attorney can investigate the facts surrounding the accident. This may include reviewing the records you have kept or created; interviewing you; interviewing witnesses; and obtaining copies of your medical records from your treating doctors.
EVALUATE THE STRENGTH OF YOUR CLAIM UNDER THE LAW.
WRITE A PERSUASIVE SETTLEMENT PROPOSAL.
You may have a clear-cut claim for compensation, but if your settlement proposal cannot be easily read and understood by the adjuster, your claim will not get the attention it deserves. Your personal injury attorney can draft a succinct set-tlement proposal that clearly sets forth your demand, and is supported by the law, the medical evidence, and related documentation of your losses.
NEGOTIATE WITH THE INSURANCE COMPANY FROM A POSITION OF STRENGTH.
A personal injury attorney can protect you from overreaching by an aggressive claims adjuster and negotiate from a posi-tion of strength. Insurance adjusters are well-trained negotiators who often rely on questionable tactics (e.g., lowballing or stonewalling) to get a claimant to settle for less than his or her claim is worth. Personal injury attorneys also are highly skilled negotiators. Your attorney will recognize the adjuster’s “tactics” for what they are and will not be intimidated.
FILE A LAWSUIT ON YOUR BEHALF.
If the insurance company refuses to settle your claim for a fair amount, your attorney can leverage the power of a lawsuit to get you the compensation you deserve. Court closures may prevent your attorney from filing a lawsuit at the present time, but your attorney can prepare the papers and be ready to file and move your case forward when the courts resume normal operations. Court rules and procedures are complicated right now due to COVID-19, with states and courts adjusting as circumstances change. Here is just one example: You have only a limited amount of time to file a lawsuit following an injury accident. This time period is called the “statute of limitations.” If you fail to file your lawsuit within the time allowed, your claim may be barred permanently. Some states have temporarily suspended or “tolled” this time period (essentially, stopped the clock), but many others have not. Likewise, some state courts are accepting non-emergency filings; others are not. Having a personal injury attorney on your side is the best way to ensure your lawsuit is timely filed and moves forward smoothly, in compliance with current court rules and procedures.