When You are in an Automobile Accident -- Part I

I believe that if you understood what happens in a lawsuit you would act differently and more responsively during your efforts in the process of your case which, hopefully, would lead to a good recovery.

You may think it is presumptive of me, as an attorney, to talk about litigating your case at the very outset of our discussion when, in your belief, the first consideration should be just to settle at a reasonable sum.

If it were that simple, I would agree to “just settle” but, unfortunately, insurance companies often offer unreasonably low amounts when the efforts are directed towards settling an auto accident case. I am making a very generalized statement when I say that oftentimes the initial (and sometimes last) offer by an insurance company is typically one half of the amount that is received after filing a lawsuit. Most cases, after suit is filed, are often settled without going to trial. So I am simply saying that, by filing a lawsuit at the outset, you may receive twice the amount of the final offer made by the insurance company.

Do you want to settle for half of what you may obtain by filing a lawsuit?

Here and below are the important elements of what must be shown and introduced into evidence at the trial. You may be saying to yourself, “but we are not going to have a trial so why are you talking about evidence at trial”?

Insurance companies can tell pretty early when a demand for settlement is made whether the lawyer and client are ready and prepared for trial should the client want to file suit. As you read further, you will hopefully understand what we need to do from the very outset of your accident and throughout the process.

Ideally you would call me at the onset of your accident and as you read this article you will understand why.

One of the first elements of the suit is the fact that the person who injured you and damaged your vehicle was negligent and that you were not contributorily negligent, did not assume the risk, or act in a way that gives the negligent party a good defense to your case.

Negligence means that the party who caused the accident breached a standard of care that caused injury to you and legal damage. Examples are as follows: (1) the other driver did not keep a safe distance behind you so that when vehicles ahead of you slowed down, which resulted in your slowing down, the other driver was unable to avoid hitting your vehicle and caused injuries; (2) the other party failed to yield the right-of-way to you and so he ran his vehicle into your vehicle, causing damage to your vehicle and personal injury to you; (3) another vehicle crosses the median and winds up traveling in the opposite direction to oncoming traffic, resulting in a head-on collision with your vehicle. All of these examples demonstrate that the other party is negligent.

In addition to your exchanging insurance information with the other party, the police may investigate at the scene what occurred. It is important for you to understand what you say at the scene can either be a benefit to or interfere with the successful outcome of your case. Describe simply and clearly what occurred, trying not to say too much because you may make statements by saying too much that are harmful to your case. If you give a statement, what you say at the accident scene will be introduced at trial. At trial we may be able to deal with statements you made that are harmful but, obviously, if you are careful in what you say, you may be protecting yourself.

With regard to giving statements, NEVER, NEVER give a RECORDED STATEMENT to an insurance adjustor without a lawyer advising you and explaining the process.

When you are injured, it is very important that you immediately obtain medical treatment. If you go to an emergency room, your primary care doctor, or a walk-in clinic, medical personnel will write down what you say. What you've stated may be introduced at the trial. I recommend to clients to write down all of your physical complaints so that you do not overlook some of your complaints when you see the medical professional. It would also be better to list each complaint in priority order, meaning state first what hurts you the worst. Also if you are taken by ambulance, try to cover all of your physical complaints at that time with the emergency medical technicians who assist you on the scene.

If the emergency room physician recommends medication, acquire that as soon as possible. If you're not well enough to go to a pharmacy yourself, ask the hospital to fax your prescription to a nearby pharmacy and, if at all possible, select a pharmacy that delivers to your home or have a neighbor go to the pharmacy for you and be certain that they have their driver’s license. Also follow the recommendations given to you in the emergency room such as to apply heat or ice, take prescribed medications, and/or to see your primary care doctor or a specialist as soon as possible.

Before you make an appointment to see your doctor or specialist, make an appointment to go over with your attorney what you're going to tell the specialist/physician. Our office manages clients’ medical appointments by discussing with our clients what they are going to tell their doctors before each appointment. We have a checklist which we complete with each personal injury client that covers many functional areas of activity. Medical reports from the ambulance, emergency room, physicians and physical therapists, and other written statements are all admissible into evidence at trial. Many physicians request that you complete a medical history form, listing each physical complaint of injury as well as the level of pain. Take the time to fully and accurately complete those forms. Again those medical histories can be admitted into evidence at trial.

Are you still asking “ why do we keep talking about going to trial”? In most cases, even though suit is filed, we do not actually appear for trial because the case may be settled at one of the court required settlement conferences. However, the insurance company will see all of your accident-related medical records. What you have said to the doctor, which will be included in the doctor’s records of your treatment, may be helpful or harmful to your case.

The physicians who treat you are very important to your case. Those physicians who keep detailed and meticulous records can often be very helpful to your case. However, going to a physician who is not administratively set up to keep good records will often be harmful to your case. As an example, being treated by a quality physician and one who keeps meticulous records may result in an increase in the value of your case by approximately 40% or more. Having over 30 years’ experience in handling personal injury cases including automobile accidents, slip and fall accidents, workers’ compensation claims and other types of injury claims, I know of the best physicians in numerous medical fields who provide quality care and who also keep meticulous records. You also need to have a physician who understands the medical legal process. These physicians habitually keep meticulous records, express their opinions regarding medical history, explain in their records how the injuries are causally related to the accident, plan medical treatment, and document disability. These physicians also habitually express their opinions to a reasonable degree of medical certainty or probability. It is necessary for all of your medical records to include opinions stated to a reasonable degree of medical certainty or probability in order to introduce them into evidence at trial. When an insurance company sees that the medical records do not state those opinions as just expressed, they know that the client and his attorney are not prepared to go to trial. That may result in a lower settlement offer.

As soon as you are involved in an accident due to someone else’s negligence, call me, Fred Antenberg, for a Free Initial Consultation. I have represented personal injury clients in Howard County and surrounding counties in Maryland for over 30 years. Call me at 410-730-4404.

This article will be supplemented with “WHEN YOU ARE IN AN ACCIDENT – Part II”