If I have a pre-existing Condition Can I make a claim for Injuries in an accident?

ANSWER: Yes, You can make a claim for injuries if you have a pre-existing condition

It is a long standing legal proposition that a tort defendant “takes his victim as he finds him.”  This rule is referred to in the law as the “eggshell plaintiff” rule. This legal theory makes a defendant responsible for all damages resulting from his negligence The Defendant, aka the insurance company, will want to argue because of the plaintiff’s preexisting condition, the injuries he/she are more severe than they would have been in a non-frail person. However, this argument will not prevail

Under the law, A person who has a condition or disability at the time that he or she is involved in an  injury accident is entitled to recover damages for any aggravation of that preexisting condition or disability that results from the accident.  Thus, a person cannot recover damages for the injury they have, but rather for making that injury worse and for additional injuries they suffer.  

This is true even if the person’s condition or disability made him more susceptible to the possibility  to being injured than a person without injury would have been. Therefore, even if a healthy person probably would not have suffered any substantial injury in the accident, a person with prior injury may be more likely to sustain injury and the adverse driver is liable for those injuries.

The most important thing to remember is that having a pre-existing condition does not prevent you from recovering damages in an injury accident. A pre-existing condition may make you more susceptible to injury,  but that does not allow the insurance company to offer you less compensation. It is very important to be up-front with your lawyer about your past accident, injuries and medical conditions . Laura Payne Hunt, Esq. has many years’ experience working for and against the insurance companies.   With this experience and a skilled legal team, she can help get you the compensation that you are you entitled too, regardless of your condition before the accident. If you or anyone you know is injured in an accident, please call our office today at (702) 450-4868 to schedule your free consultation with Laura Payne Hunt, Esq. a  highly experienced Las Vegas and Henderson car accident attorney.

Where a preexisting condition or disability is made worse, the damages as to  for the exacerbation are limited to the additional injury caused by the accident.  In fact, the Nevada Pattern Jury Instructions specifically address this issue at Nev. J.I. 10.06 as follows:

PERSONAL INJURY; AGGRAVATION OF PREEXISTING CONDITION

A person who has a condition or disability at the time of an injury is not entitled to recover damages there for.  However, he is entitled to recover damages for any aggravation of such preexisting condition or disability proximately resulting from the injury.

This is true even if the person’s condition or disability made him more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury.

Where a preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation.

NEV. J.I. 10.06

BAJI 14.65

Courts have addressed this issue repeatedly over the years.  In Lovely v. Allstate Ins. Co., No. 7274 (Me. May 30, 1995) the plaintiff suffered from a preexisting injury which was exacerbated by a subsequent accident.  The defendant successfully argued to the trial court that, in order to recover, the plaintiff had the burden of demonstrating which portion of his injury resulted from each accident.  After reviewing the evidence, held that the medical testimony failed to provide a basis for apportioning the damages as between the two acidents.  Although the record contained substantial evidence of pain and suffering, as well as medical expenses attributable to plaintiff’s elbow injury, the trial court declined to award any damages based on this injury, finding that plaintiff failed to meet his burden of proof. 

The Appellant Court reversed on the ground that the trial court had mistakenly placed the burden of proof as to apportionment on the plaintiff.  Rather than awarding no damages for the elbow injury, the Appellant  Court ruled that the trial court should have awarded plaintiff his total damages.  In so holding, the Court actually invoked not the eggshell-plaintiff rule, but also the single-injury rule, traditionally applied in cases involving multiple tortfeasors.   The court held that that the single-injury rule “places any hardship resulting from the difficulty of apportionment on the proven wrongdoer and not on the innocent plaintiff,” the Court extended the application of the rule to cases involving preexisting conditions. Thus, the Court held that where a preexisting condition is exacerbated or made worse by a negligent act, resulting in an aggregate injury which is incapable of apportionment, the tort feasor and not the victim must suffer the hardship of proving apportionment.

Insurance companies use any tactic possible to unreasonably deny or undervalue claims.  You need an attorney experienced in dealing with insurance companies. Laura Payne Hunt, Esq. has been a Henderson Accident attorney for over ten years.  Prior to working exclusively with injured people, Laura worked for a major insurance company in house for many years. She knows how to beat then to the punch so to speak.  She can help you fight for the compensation you deserve, including pursuing a filing a lawsuit against the person or persons who caused your injuries. Insurance companies understand that at the end of the day it will be a jury who will decide the value and not the insurance company.  However, it takes experience to convince a jury that your condition and pain and suffering has been caused by the defendant’s negligence, rather than the pre-existing condition. An experienced lawyer like Laura Payne Hunt, Esq. knows how to prover your injuries. If you have a prior injury or pre-existing condition and are injured in an accident, you will want to do the following:

  • Maintain Documentation: You should make sure you discuss any pre-existing conditions with your doctors.
  • Discuss differences with your Doctor –Ask them to be clear about explaining whether your current problems and symptoms are due to the accident or the prior condition.
  • Be Honest with your Doctor – You must also be honest and open about your prior condition when speaking to your Doctor.
  • Be Honest with your Attorney — Hiding information puts your lawyer at a disadvantage when negotiating with the insurance company.

 

The best way to protect your claim if you have pre-existing medical conditions or prior injuries is to be candid and honest with your attorney and your doctors about these conditions at your first consultation. Your truthfulness about your medical condition will allow your doctors to understand your new injuries.  It is important to be open about your past medical history. This honesty will put you in the best position possible for a maximum recovery in your case. Insurance companies and defense attorneys will have access to past accident history whether or not you are candid. It can damage your case if they find it be other means.  That is why it is important to remember to all of your past injuries when discussing your case with your attorney and your doctor and let your attorney and doctors known about these issues. If you are not honest in disclosing these conditions in the beginning, you are setting yourself up for many different problems including harming your credibility, ruining your entire case, and even subjecting yourself to legal action.

 

If you have a question about a pre-existing condition, please don’t hesitate to call our office or a loved one is injured call our office immediately.  We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence. If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to. Insurance companies never have the best interest of the injured person at the top of their priorities. They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

         At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur.  For any of your legal needs, do not hesitate to contact our offices. The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

Fatal accident investigation. What really happens?

Sadly, statistics show that driving is dangerous in this country.

  • Almost 1.25 million people die in auto accidents each year
  • Tragically, auto accidents are the leading cause of death among young people ages 15-29, and the second leading cause of death worldwide among young people ages 5-14.
  • Over one half of the victims are young people ages 15-44.
  • There are an average of 3,287 deaths a day as a result of automobile accidents
  • Automobile accidents are the 9th leading cause of death and account for 2.2% of all deaths globally.
  • Experts predict that auto accidents will become the fifth leading cause of death by 2030.

https://www.asirt.org/safe-travel/road-safety-facts/

Most of us take driving for granted.  It is part of our everyday routine. We are in and out of the car many times a day, putting thousands of miles on our vehicles every year.   When a hazard occurs, you often only have a split second to react in a way that could save your life. . If you are changing the radio station, talking on a cell phone or not paying attention to the road, that opportunity is lost. In fact, in researching and writing this blog, I believe I will enroll my teenage son in the defensive driving course at the Las Vegas Motor speedway.  https://driversedge.org/the-program/  The better prepared drivers are to react, the better their chances at avoiding a fatal accident.

In working for a major insurance company as an attorney for many years, I had the unfortunate experience of reviewing many fatal accident claims files.  I think that the luxury and comfort of modern vehicles makes drivers forget that they are moving at a high rate of speed and not at a concert or sitting in a movie theater.  Drivers are becoming desensitized to the danger of the roadway.

When the police and/or highway patrol are dispatched to the scene of an accident, they conduct a thorough and often lengthy investigation of the scene.  The following are the steps of the investigation process:

Tape off the scene

The scene of a fatal traffic accident is taped off to preserve evidence. It is marked off like any other crime scene. Photographs are taken and all the evidence is carefully collected

Take Measurements of Skid Marks

Measuring the skid marks left on the road surface by the cars is a significant indicator of how the accident took place.  Police can often tell from the skid marks how fast the vehicles were traveling prior to impact.

 

Calculating drag factor

Once the skid marks are measured, police use various formulas to compute how fast the cars were traveling. It’s important to take into consideration the “drag factor” of the concrete or asphalt, whether it is raining or snowing and if the surface is sloped. Police use algebraic calculation to determine the coefficient friction on the roadway.  Drag factor is the deceleration coefficiant for an entire vehicle. The coefficient of Friction is the deceleration coefficient for a sliding tier. The Drag factor and coefficient of Friction are the same, if and only if, all four tiers of a motor vehicle are locked and sliding on a surface.

 

Interviewing all Witness

Then, all witnesses are interviewed. This could be occupants, drivers, bystanders etc. The primary officer interviews the suspect driver if they’re able to speak. While the interviews are being conducted, the other members of the team begin to collect the evidence. This includes creating a scale diagram, taking photos, alcohol bottles, and blood and urine samples if the crash is alcohol related

 

Testing for Impaired Drivers

The driver would be questioned and examined for signs of being under the influence of alcohol or drugs, and to see if they were otherwise medically impaired. A drug/tox screen would be ordered. The results of this usually take several days, at minimum.

 

Look for Mechanical Failures

 

The vehicle would be carefully examined to see if there were any mechanical failures, malfunctions, or relevant modifications.

 

Careful Site Inspection

 

The site of the accident would be carefully diagrammed. Critical items would include the position when the vehicle started moving, the area of impact, the area of initial braking, and the point of rest. As a team, the police will walk through the entire scene to get a feel for it… how it happened… looking for evidence. In a fatal crash, the evidence can be skid marks, debris field… it could be the distance a bumper off a car flew after impact… anything inside that scene is a possible piece of evidence.

 

Check for Possible Surveillance Video

There would be a search for any surveillance video of the area at the time of the accident.

 

Autopsy of Victims

An autopsy would be performed on the victims to determine the precise causes of their deaths, and whether there were any intervening medical issues.

 

Further review of Evidence

When all the evidence has been gathered, there is often a multi-disciplinary meeting of accident and homicide investigators, prosecutors, and possibly psychological or medical experts to determine the culpability of the driver or others involved.

 

Criminal Charges

 

Once the evidence is collected, the team works for days, weeks and sometimes months to complete the investigation.  The evidence is generally put into a booklet form or report format and the principle officers and the traffic supervisor meet with the District Attorney to discuss charges. If the driver is found to have some antagonistic relationship with the victims or their families, the prosecutor will consider whether the case is a deliberate act, as opposed to an accident (this is rare). If the actions of the driver are deliberate, the appropriate charges aren’t something like unsafe backing or careless driving. They become murder.

If the driver reports he/she lost consciousness before or during the incident, a medical examination will be ordered to determine whether she might have suffered a seizure or some other medical problem. If she was aware of this problem and drove in spite of it, her culpability will increase.

The prosecutor is ultimately the final arbiter of what charges, if any, will be filed.

 

How to Become a safer Driver, Experts offer the following advice:

  • When you come to an intersection, don’t just look straight ahead, look all around. Don’t just look at the car in front of you; look at the car in front of it.
  • Don’t follow too closely. If the car in front brakes unexpectedly, you have more time to react if you have more space.
  • Pay more attention, be more courteous.
  • Use a “hands-free” device if you have to talk on the cell phone.
  • Be alert for other drivers who are acting recklessly.
  • Change your attitude — slow down, relax and take your time getting to your destination.
  • Be an extremely courteous driver
  • Be an extremely defensive driver
  • Be on the lookout for drivers who appear impaired

Safety Features Matter


When shopping for a vehicle in today’s market,  airbags really offer the best protection in the event of an accident. However, seatbelts are still extremely important and must be used with the other protections.   It is also important to check the National Highway Traffic Safety Administration’s (NHTSA) crash test scores   https://www.nhtsa.gov/  before making a final selection for a car. In today’s market, you can shop for safety and style.  It is no longer an either or choice.

All of this information will eventually be released to the participating insurance companies, who may undertake their own investigation. If a loved one has been involved in a fatal accident, please don’t hesitate to call our office immediately.  We can make sure that injured victims receive the care they need and deserve and that families of victims with fatal injuries receive justice, and advise on how to preserve evidence.  If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today. At my office, we are experienced in helping injured victims get the compensation they are entitled to.  Insurance companies never have the best interest of the injured person at the top of their priorities. They want to pay as little on every claim as possible. Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.   

         At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur.  For any of your legal needs, do not hesitate to contact our offices. The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

What is the difference between CBD and Marijuana

FIVE POINTS ABOUT CBD

  1. CBD and Marijuana come from the same plant.
  2. CBD and Marijuana do not contain the same chemical compound.
  3. Marijuana has THC and is only legal in some states.
  4. CBD has less than .3% percent THC
  5. CBD products with less than .3% THC are legal in all states.

The 2018 Farm Bill greatly expanded the legalization of the Hemp industry.  It allows hemp cultivation broadly and explicitly allows the sale and distribution of hemp-derived products across state lines for commercial or personal uses. It also lifts any restrictions on the sale, transport, or possession of hemp-based products,  as long as these products meet the legal requirements. The Bill places certain restrictions on Hemp production including the following:

First, as referenced, CBD cannot contain more than 0.3 percent THC, per section 10113 of the Farm Bill. Any cannabis plant that contains more than 0.3 percent THC would be considered non-hemp cannabis—or marijuana—under federal law and would thus face no legal protection under this new legislation.

Second, there will be significant, shared state-federal regulatory power over hemp cultivation and production. Under section 10113 of the Farm Bill, state departments of agriculture must consult with the state’s governor and chief law enforcement officer to devise a plan that must be submitted to the Secretary of USDA. A state’s plan to license and regulate hemp can only commence once the Secretary of USDA approves that state’s plan. In states opting not to devise a hemp regulatory program, USDA will construct a regulatory program under which hemp cultivators in those states must apply for licenses and comply with a federally-run program.  This system of shared regulatory programming is similar to options states had in other policy areas such as health insurance marketplaces under ACA, or workplace safety plans under OSHA—both of which had federally-run systems for states opting not to set up their own systems.

Third, the law lists actions that are determined to be violations of federal hemp law (including such activities as cultivating without a license or producing cannabis with more than 0.3 percent THC). The law details fines and jail sentences for such violations, but also outlines pathways for violators to become compliant.  The law also lists which activities qualify as felonies under the law, such as repeated offenses.

Although the Farm Bill legalizes hemp, it doesn’t create a system in which people can grow it as freely as they can grow tomatoes or basil. However, many states haves systems in place.   Hemp will be a regulated crop in the United States for both personal and industrial production but if you are interested in growing it, consult your state department of agriculture. In most states where Marianna is legal, getting a hemp (non-THC) growing license is not that difficult.

So now that we’ve established these come from the same plant, what is CBD?

CBD is one of the many chemical compounds in a class called “cannabinoids” that naturally occur in cannabis plants. While THC has been the long known form of cannabinoids due to its ability to get us high, CBD is a rapidly rising star for its capacity to deliver mental and physical benefits without the munchies, paranoia, or legal consequences.

Although the FDA has not approved CBD for a specific use with the exception of an epilepsy drug recently approved,  users of CBD reported benefits including relief from anxiety, joint pain, post-traumatic stress disorder, menstrual cramps, insomnia, nausea, seizures, bowel inflammation, and plain old moodiness. Today, adults in more than half of US states (and 16 countries worldwide) have legal access to marijuana for medical purposes, and it’s been legalized for recreational use in nine states, plus Washington, DC. As marijuana continues making its’ way into the mainstream, CBD has emerged as an easy entryway for those who want to take advantage of the wellness benefits of plant, without the effects of THC.

CBD has come out in many forms in recent months.  It’s come out in lotions, oils, bath bombs, edibles, gels and almost any form you can think of for use. The methods of consuming CBD are unlimited.  CBD also comes in soft gel capsules, droppers, and sublingual sprays.  In more than 20 countries outside the US, one such spray is prescribed to multiple sclerosis patients who suffer from muscle spasms and stiffness.

How CBD works

“Yu-Fung Lin, an associate professor of physiology and membrane biology at the University of California-Davis School of Medicine, teaches a course on the physiology of cannabis. She says although CBD is not considered to be psychotropic—meaning it won’t alter our perception of reality or produce a feeling of euphoria—it’s still working on our brains. CBD doesn’t activate our brains’ cannabinoid receptors in the same manner as THC, but it does target a wide variety of proteins in the brain and nervous system that regulate cell activities all over the human body. By interacting with the brain’s signaling systems in various ways, it can provide relief from pain, anxiety, and nausea. Beyond our brains, says Lin, CBD may benefit our bones and immune systems and work broadly throughout the body as an anti-inflammatory and antioxidant, which may help protect cells from damages associated with neurodegenerative diseases.”               

With these sorts of benefits, there’s an increasing market for CBD—and readily willing suppliers promising miraculous results. “CBD can be used to relieve multiple symptoms,” says Lin. “But you need to know what you are getting.”

https://health.ucdavis.edu/physiology/faculty/lin.html

CBD vs. Marijuana

CBD products made from industrial hemp, which contains almost no THC (less than 0.3% in the US), are legal in all 50 US states. While many users report benefits of hemp-derived CBD—not the least of which is legality—some experts say a little THC helps CBD work in the body; that cannabis’ chemical compounds work better in tandem than in isolation.

This is often called the “entourage effect,” or as Lester Grinspoon, a psychiatrist and professor emeritus at Harvard Medical School calls it, the “ensemble effect.” “It’s a mixture of CBD, cannabidiol, THC, and the phytochemicals, the terpenoids,” Grinspoon tells High Times. “You need all three of them to get the best therapeutic effect.” For this reason, Grinspoon, Lin, and many others say that the best source for therapeutic CBD is a plant with all of its cannabinoids intact. https://www.safeaccessnow.org/cannabinopathic_medicine_lester_grinspoon_m_d_s_new_coinage

Hemp research remains important

 

One of the goals of the 2014 Farm Bill was to generate, promote  and protect research into hemp. The 2018 Farm Bill continues this effort. Section 7605 re-extends the protections for hemp research and the conditions under which such research can and should be conducted. Further, section 7501 of the Farm Bill extends hemp research by including hemp under the Critical Agricultural Materials Act. This provision recognizes the importance, diversity, and opportunity of the plant and the products that can be derived from it, but also recognizes an important point: there is a still a lot to learn about hemp and its products from commercial and market perspectives. Yes, farmers—legal and illegal—already know a lot about this plant, but more can and should be done to make sure that hemp as an agricultural commodity remains stable.

https://www.agriculture.senate.gov/2018-farm-bill

If you have a question about CBD, please don’t hesitate to call our office.  We work with clients that manufacture high quality CBD products. We can discuss the legalities of the product and advise where to purchase.

If you or a loved is involved in an accident with someone who is under the influence of Marijuana, call our office immediately.  We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence. If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to. Insurance companies never have the best interest of the injured person at the top of their priorities. They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

         At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur.  For any of your legal needs, do not hesitate to contact our offices. The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

Drug testing in the work place where Marijuana is Legal

If your company drug tests employees, now is a good time to evaluate how the expanding legalized use of marijuana will impact your policies and your business. More employees will inevitably test positive for marijuana. By taking time to evaluate the consequences of this, you and your HR team will have strategies in place and be better positioned to respond on a legal and operational level.

In the states where marijuana has been legalized, enforcing drug-free workplace policies can be a significant challenge. Of the 31 states allowing marijuana use for medicinal purposes, 11 states (Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania and Rhode Island) have statutes that explicitly prohibit employment discrimination against medical marijuana users.

In several states — including Connecticut, Maine and Massachusetts —  an employee who tests positive for marijuana but is legally allowed to use marijuana for medical purposes has a viable claim against an employer for enforcing drug-free workplace policies without accommodations or other considerations.

Related: To Drug Test or Not to Drug Test? https://www.greenentrepreneur.com/

An emerging trend in employment law 

According to the American Bar Association, cases in which employees sued for discrimination resulted in favorable verdicts for them. One federal court in Connecticut recently reasoned that the federal Drug-Free Workplace Act, https://webapps.dol.gov/elaws/asp/drugfree/require.htm  which many employers including federal contractors relied upon for policies on drug testing, does not specifically require drug testing and does not prohibit federal contractors from employing people who use medical marijuana outside the workplace and in accordance with state laws.  The Department of Labor ended the drug-free workplace program in 2010.  Accordingly, it does not currently administer a “Workplace drug testing” advisory web page.

Further complicating the matter for multi-state employers, state statutes pertaining to the legal use of marijuana vary, and while certain states have sanctioned marijuana, its possession is still a federal crime. To confuse matters even further, court rulings have offered an inconsistent roadmap for companies that want to determine if they should drug test for marijuana, and what to do with a positive test result.

For example, while some courts have ruled in favor of employees as noted above, the California Supreme Court in Ross v. Ragingwire  174 P. 3d 200, 70 Cal. Rptr. 3d 382, 42 Cal. 4th,Cal: Supreme 2008 reasoned that because the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate illegal drug use, the employer could lawfully deny employment to individuals using medical marijuana, since it is illegal under federal law.  No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29, 125 S.Ct. 2195, 162 L.Ed.2d 1; United States v. Oakland Cannabis Buyers’ Cooperative, supra, 532 U.S. 483, 491-95, 121 S.Ct. 1711, 149 L.Ed.2d 722).

What, then, should your business do to adjust or modify drug testing policies relative to the legal use of marijuana?  Here are some basic considerations:

1. Evaluate Your Policy

If medical and recreational marijuana use is allowed in states where your employees work, it’s time to examine the core motivation behind your drug testing policy.  Some companies, such as those that do business with the federal government, may be required to test certain employees. Safety-sensitive positions, such as drivers, equipment operators, and pilots, are subject to alcohol and drug screening, as well.

Perhaps your company is not legally required to test employees, but instead has decided to establish a drug-free environment, with testing as a component.  Ultimately, you need to determine the overall temperament of your organization for medical marijuana use when it is legally allowed and consider interactive accommodations for certain workers. Some employers have gone as far as eliminating testing for marijuana altogether while maintaining other drug testing requirements, reasoning that testing for marijuana automatically excludes too many otherwise qualified employees in the current challenging hiring environment.

Related: Here’s How You can Weed Out Risks At Work With Drug Test Screening

2. Understand the Specific Legal Requirements

It is possible that the specific medical marijuana laws in your state (or states, if you operate in multiple regions) require you to discuss possible accommodations for the use of medical marijuana.  You also need to consider the impact of the Americans with Disabilities Act. Based on the law, you may need to revise your drug testing policy to include an accommodation process; you will also need to determine when discipline or termination may be appropriate for medical marijuana users.

Finally, for safety-sensitive positions, determine what standards apply relative to medical marijuana use. In the end, zero-tolerance drug policies in the workplace may be enforced as long as they do not violate state law.  Currently, a majority of state statutes include certain employer exemptions as well as policies that ban marijuana use on-the-job or on the premises.

As more states legalize marijuana use, your organization should prepare for a rise in positive test results, and for challenges from employees who have failed drug tests or who claim they were not impaired while working.  To ensure you are in compliance, consult an employment law expert or an experienced HR consultant who can provide guidance and help you navigate through the maze of federal and state statutes.

If you have a question about Marijuana laws in Nevada, please don’t hesitate to call our office or a loved one is injured call our office immediately.  We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence.  If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to.  Insurance companies never have the best interest of the injured person at the top of their priorities.  They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur.  For any of your legal needs, do not hesitate to contact our offices.  The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

What to Do if the Insurance Company Says My Car is a Total Loss.

FIVE THINGS TO KNOW ABOUT A TOTAL LOSS VEHICLE

  1. You will not get to decide whether or not your car is a total loss
  2. A total loss is not always obvious
  3. Legally, if the cost to repair is more than 65% of the car’s value, it’s a total loss.
  4. The fair market value of the vehicle is negotiable; don’t let the insurance company tell you it’s not.
  5. The loan on the car is not the fair market value.

One of the biggest misconceptions that we see in our office is what the meaning of total loss is in the context of an auto accident. Often times, clients think that total loss means they will get a new car. Unfortunately that is not the case. In addition, clients will often think that they can determine whether or not their car is, in fact, a total loss. Unfortunately, that is also not the case.

In the state of Nevada, whether a car is a total loss is governed by Nevada Revised Statute 487.790. Specifically NRS 487.790 states as:

NRS 487.790  “Total loss vehicle” defined.

  1.   “Total loss vehicle” means a motor vehicle:

      (a) Of a type which is subject to registration; and

      (b) Which has been wrecked, destroyed or otherwise damaged to such an extent that the cost of repair is 65 percent or more of the fair market value of the vehicle immediately before it was wrecked, destroyed or otherwise damaged, except that, for the purposes of this paragraph, the cost of repair does not include the cost of:

             (1) Painting any portion of the vehicle;

             (2) Replacing electronic components in accordance with the specifications of the manufacturer; or

             (3) Towing the vehicle.

      2.  The term does not include:

      (a) A nonrepairable vehicle;

      (b) A motor vehicle which is 10 model years old or older and which, to restore the vehicle to its condition before it was wrecked, destroyed or otherwise damaged and regardless of cost, requires the replacement of only:

             (1) The hood;

            (2) The trunk lid;

             (3) A fender;

             (4) Two or fewer of the following parts or assemblies, which may be bolted or unbolted:

                   (I) Doors;

                   (II) A grill assembly;

                   (III) A bumper assembly;

                   (IV) A headlight assembly; or

                   (V) A taillight assembly; or

             (5) Any combination of subparagraph (1), (2), (3) or (4);

      (c) A motor vehicle, regardless of the age of the vehicle, for which the cost to repair the vehicle is less than 65 percent of the fair market value of the vehicle immediately before the vehicle was wrecked, destroyed or otherwise damaged, except that, for the purposes of this paragraph, the cost of repair does not include the cost of:

             (1) Painting any portion of the vehicle;

             (2) Replacing electronic components in accordance with the specifications of the manufacturer; or

             (3) Towing the vehicle; or

      (d) A motor vehicle that was stolen and subsequently recovered, if the motor vehicle:

             (1) Has no structural damage; and

             (2) Is missing only tires, wheels, audio or video equipment, or some combination thereof.

      3.  For the purposes of this section, the model year of manufacture is calculated based on a year beginning on January 1 of the calendar year in which the damage occurs.

      (Added to NRS by 1995, 1573; A 2003, 1911; 2005, 1245; 2011, 1663)

What this means is that if the repair estimate to fix your car is more than 65% of the fair market value of the vehicle, it must be declared a total loss by state law. However, even with this definition that would seem clear on its face, there are a lot of variables. Such variables include determining what will be the actual cost to repair the  car as well as the actual value of the car. I will discuss each one of these issues.

First, it is necessary to determine whether the vehicle is, in fact, a total loss. With over 18 years’ experience in this business, I can generally look at a photograph and tell you if the vehicle is going to be a total loss. Feel free to call our office with any questions if you have been involved in accident involving a vehicle that has been deemed a total loss.  When estimating the damage, the insurance company will generally allow some leeway for hidden damage in determining whether to repair the vehicle or not. This means for example if your vehicle is worth $10,000 and the insurance company estimates the damage at $4,000, they will likely deem the car a total loss because if there is additional hidden damage found when repairs begin, it will rise to the level of total loss.       

Sometimes, if the client really wants the vehicle repaired, and it is close on the total loss versus fair market value, we can have their carrier repair the vehicle and the client will sign a waiver regarding future repair costs. This is not something we generally recommend but there are occasions that clients are very attached to their vehicles and do not want to send them to the salvage yard.   At the Law Offices of Laura Payne Hunt, we listen to our clients’ needs and requests and assist throughout the property damage loss assessment and payment. We also do not take any fee for handling this portion of the case when handling the personal injury matter. It is important when finding a personal injury attorney to discuss this matter up front. Many personal injury attorneys do not help their clients with the property damage at all. At The Law Offices of Laura Payne Hunt, we make sure you are fairly compensated for your vehicle or that it is fully repaired, and we do not charge for this service when handling the personal injury claim.

The second part of a total loss claim is determining the fair market value of your car.  I generally explain this to clients as if you were going to sell your vehicle on the morning of the accident before the collision occurred, what would be the price that you would accept for the vehicle. The way we generally determine this number is to look at what we call in the business “comps“. This means comparable vehicles for sale. Most common vehicles can be searched easily on the Internet. Simply enter the year, make, and specific model of your vehicle and look for similar vehicles for sale. You will generally find a significant range in value often thousands of dollars depending on the vehicle.  We look for higher value comps that are as close to our client’s vehicle as possible to determine the fair market value. You want to compare things like options; for example whether it has leather or cloth seats, whether it is turbo or not turbo, whether it has navigation or not, as well as mileage.

Once you locate these comparable for sale vehicles, you want to print this information and make sure you include the name of the dealership or private seller on the documentation you print as a way to reach them to verify the comparable sale. You can compare these with the amount the insurance company is offering you for the total loss of your vehicle and it should be comparable to these numbers.

On a related note, when purchasing a new or newer vehicle, we urge our clients to obtain GAP insurance on their car loan. If the dealer offers this to you, you can research to compare rates with other carriers to make a comparison to what the dealer is offering you when you are buying the car.   You can do this on your phone at the dealership while in the process of purchasing the car. GAP insurance is insurance that protects you in the event that your car is an accident, is a total loss, and has even fair market value of less than the loan balance. Your insurance company or the other side will only pay the fair market value of the vehicle. Sometimes that is less than what is owed on the car. You could reach a situation where you still owe thousands of dollars on a vehicle you no longer have because the value was less than the loan. Unfortunately, this can and does happen. That is why we urge clients to have a GAP insurance to pay the gap in the fair market value and the amount of the loan balance. If you’ve already purchased a new vehicle and did not obtain gap insurance, it is something that you can add and we urge you to do that.

If you have a question about a total loss vehicle, or a loved one is injured call our office immediately.  We can make sure that you receive the care you need and deserve, and advice on how to preserve evidence. If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to. Insurance companies never have the best interest of the injured person at the top of their priorities. They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

         At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur.  For any of your legal needs, do not hesitate to contact our offices. The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

WHAT IS TREASON AND IS TRUMP GUILTY OF IT?

A word I haven’t heard much of since law school is treason. With all the recent headlines of Donald Trump and the Mueller probe, it is a question on people’s minds and a question I have been asked by strangers at baseball games seeing me read deposition transcripts on more than one occasion. Since Donald Trump’s face to face meeting with Putin in Helsinki has come to light, it has been tossed around the media.  The president appeared to side publicly with the former KGB agent over US interests regarding Russia policy in trying to sway the 2016 election. In fact, even Donald Trump is throwing around the word on twitter:

Donald J. Trump ✔ @realDonaldTrump

….There is a lot of explaining to do to the millions of people who had just elected a president who they really like and who has done a great job for them with the Military, Vets, Economy and so much more. This was the illegal and treasonous “insurance policy” in full action!

123K

4:29 AM – Feb 18, 2019

Trump was speaking out on Twitter against former FBI Deputy Director Andrew McCabe.  In his recent book, McCabe states details supporting his concerns about potential foreign influence concerning the president.  Deputy Attorney General Rod Rosenstein initiated special counsel Robert Mueller’s investigation. Trump also stated McCabe and Rosenstein “look like they were planning a very illegal act, and got caught.”   During an interview on CBS’s “60 Minutes,” McCabe, described Rosenstein as “having raised the prospect of invoking the 25th Amendment to remove Trump from office.”  Jeff Sessions fired McCabe from the FBI last year, hours before McCabe was set to retire.

A large part of the Mueller investigation is focused on “campaign collusion.” The question is, did Russia help get Trump elected, and did the Trump campaign knowingly accept this help.  Or at worst, did the Trump campaign actively participate in collision to get Trump elected.  It has been alleged that campaign manager Paul Manafort gave polling data to a Russian agent.  It can be surmised that the relevant use of this information was to assist Russia with their social media efforts to sway the election

A New York Times report claimed that collusion was only part of the story. The relationship between Trump and Putin not only involved their mutual interest in Trump winning the election, but seems to show a some stronger connection.  Mueller is not only looking into crimes, but also the basic loyalties of the President of the United States.

 

If this is in fact true, the question is “Is it treason”? Although it is politically damaging, and although it may be grounds for impeachment, historically and technically the answer would be no, this is not treason.  So what is treason? The traditional definition of treason is a crime betraying one’s country.  This dictionary definition is very simplistic. The legal definition was codified at 18 US Code Section 2381 and it states as follows:

 

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.” Published June 25, 1948.  https://www.law.cornell.edu/uscode/text/18/2381

 

There is also a statute known as misprision of treason which is codified at 18 US code section 2382 which states as follows:

Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.” https://www.law.cornell.edu/uscode/text/18/2382 

 It is important to note that aside from treason, there are numerous federal statutes along these lines including conspiracy statutes, and insurrection statutes.   Insurrection is codified at 18 U.S. Code § 2383 and states as follows:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

 

 

Enlisting a person to serve against the United States is an allegation for which Donald Trump could be investigated for by the Mueller probe.

 

Former CIA director John Brennan called Trumps remarks “nothing short of treasonous, and former FBI director James Comey has stated that President Trump “sold out our nation.“

 

There are prominent law professors who have remarked in interviews on national television that the case could be made to see Trumps acts in a treasonous light.  Speaking from a legal perspective, treason has generally been narrowly defined and is difficult to prove. In fact, there have only been a handful of Americans ever convicted of treason and no one has been convicted of the same since 1952. The last person to be charged with treason was Adam Yahiye Gadahm, an American who joined Al-Qaeda in the early 2000s. Although Al-Qaeda is not a state and Washington never officially declared war, the U.S. was in a virtual state of war with the Islamic organization.

The founding fathers of this country created a very narrow definition of treason because they were sensitive to the possibility that it would be used to harm political opponents. It is important to point out that the founding fathers themselves were accused of treason against their own British rule.

 

Article 3, section 3 of the United States Constitution states as follows: “treason against the United States shall consist only in living war against them, or adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless the testimony of two witnesses to the same overt act, or confession in open court. “

 

The legal definition of “enemy“ means a country on which the US has declared war or is actively fighting. Russia does not exactly fall into these categories. It could be argued that North Korea does because there has never been an official end to the Korean War.  Even the former USSR was not legally defined as an enemy because there was no state of war between us. Not a single American citizen has been indicted on charges of treason since the Cold War.

 

As difficult as it is to stomach, saying bad things about the government, or an enacting harmful policies and even choosing the interests of other nations ahead of the US can be legally permissible. For instance some international treaties which have been signed by US president are more beneficial to other countries and even arguably detrimental to American interests. Some legal scholars such as highly respected and recognize Lawrence tribe contend that the US could be construed to be at war with Russia if old-fashioned definition is reinterpreted to include “cyber war“ since Russians are accused of hacking US electoral systems and stealing data in the tent to disrupt the vote. However this is a longshot on a good day.

 

In light of the turmoil of our political system on this day, I felt compelled to write about this issue.  Please check our blog weekly for information on current topics and injury related matters. If you or a loved one is injured, call our office immediately.  We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence.  If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to.  Insurance companies never have the best interest of the injured person at the top of their priorities.  They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur. For any of your legal needs, do not hesitate to contact our offices.  The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

AUTONOMOUS CARS AND PERSONAL INJURY LAW

State Overview of Autonomous Cars

  • Nevada was the first state to Allow Autonomous Cars
  • All States now have legislation enacted or pending regarding Autonomous cars
  • Lyft has over 25 Autonomous vehicles on the Road in Las Vegas
  • Google has more than 40 self-driving cars on the Road near Austin, Texas.
  • Most accidents involving driverless cars have been a human’s fault.

If you’re in Las Vegas, or now most major metropolitan cities, you may have observed or experienced autonomous vehicles on the road. Lyft recently announced that it would be putting 30 autonomous vehicles on the road in Las Vegas. Lyft has been a major proponent of autonomous ridesharing vehicles. Last year in Las Vegas and Boston they gave rides to people attending the Computer Electronic Show (CES). However, more than a trial run at CES, 30 vehicles went live on the roads in Las Vegas last year and is available to the general public through Lyft.

Don’t worry though, you’ll have to opt in to get a chance to ride one at this time — a driverless vehicle will not just show up for your ride randomly. The vehicles that Lyft used during CES were BMW’s powered by autonomous technology that was developed by a Pittsburgh-based company called Atpiv.  Those vehicles were equipped with LIDAR’s, 10 radars, a trifocal camera, vehicle to infrastructure data about stoplights and differential GPS.

According to the website engadget, they found that the erratic traffic in Las Vegas was still no match for these vehicles.  The cars all handled very well in tests. Similar to the vehicles used during the trial at the CES show, the 30 vehicles that are hitting the road in Las Vegas can only take you from one high demand location to another. Meaning they will not be heading into the suburbs just yet. In discussing the trials of autonomous vehicles in Las Vegas, spokesperson Kevin Clark of Atpiv, said in a statement “more importantly, the resulting knowledge and data from this test will allow us to further refine our autonomous driving capabilities and strengthening our portfolio of industry leading active safety solutions.”

Recently, taxi service Waymo officially launched its self-driving taxi service in the suburbs of Phoenix, Arizona. At this time, humans must be behind the wheel and they’re only open to a subset of a few hundred people who have enrolled in the company’s test program. But it is evidence that driverless cars are coming and the laws are changing quickly. It’s high time that regulators coordinate with consumer advocates and promulgate rules and regulations for self-driving vehicles. There has been a bill lingering in Congress for quite some time. It’s entitled the American Vision for Safer Transportation Through Advancement of Revolutionary Technologies Act. Quite a mouthful indeed.

One draft of the bill would create a loose framework for testing and developing automated vehicles. Federal regulators would like to get a handle on the growing industry and determine which agencies will handle which issues. However, manufactures of self-driving cars want to avoid a patchwork of different local and state regulations all over the country. At this time, over 36 states have enacted legislation or executive orders that govern self-driving vehicles.  Some of the proposed regulations by various states are seeking manufactures to validate that their self-driving systems can identify all users on the roads including pedestrians, cyclists and motorcyclists. Some of the legislation would also require auto makers making semi-autonomous systems like Tesla’s auto pilot and General Motor’s Supercruise to submit Public Safety and Crash Reports to the federal government. This bill is a win for the American Association of justice a lobbying group that represents trial lawyers because the bill also limits the use of forced private arbitrations for those who are hurt from self-driving involved collisions.

Many people consider these vehicles to be a sign of the future of the rideshare industry. The technology for autonomous vehicles is continuing to develop and although it has not been perfected quite yet, it is rapidly changing. In an attempt to keep up with autonomous vehicles technology, all 52 states introduced legislation in 2016 and 2017 to begin to deal with this new technology. In fact, the legislation is changing so rapidly that NCSL has a new autonomous vehicle legislative database to provide up to date information about different states autonomous vehicle regulations and legislation pending.

And although they may be late to the party, on September 12 a national highway and transportation safety administration released new federal guidelines for automated driving systems (ATS).  The following is a website with the latest guidelines for automated driving systems in various states. The guideline builds on NHTSA‘s guidance from 2016. http://www.ncsl.org/documents/standcomm/scnri/NHTSA_HAV.PDF

In particular, two of these sections give guidance on design elements and aligns federal guidance with the latest developments and technology. They also clarify the rules of federal versus state government. These guidelines can be found at:

https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf

Nevada was the first date to authorize the operation of autonomous vehicles in 2011. Since then 21 other states including Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Louisiana, Michigan, New York, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia and Vermont and Washington DC have also passed legislation related to autonomous vehicles. The governors in Arizona, Delaware, Hawaii, Idaho, Maine, Massachusetts, Minnesota, Ohio, Washington and Wisconsin have issued executive orders related to autonomous vehicles.

The advent of Uber and Lyft   as ridesharing companies has changed the way people travel. They’ve also changed how insurance companies write policies and how Jury’s will have to decide who is liable after an accident.  The law is generally behind technology and this area is no different. But driver’s, riders and pedestrians need to understand how the rules of the road are going to change with the placement of autonomous vehicles on the road.  The question is going to be if there’s not a driver behind the wheel, who is liable for an accident. I believe the obvious answer would be the manufacturer and this may increase litigation against vehicle manufacturers of self-driving cars.

It has yet to be determined if there will need to be a person in the driver seat to override the car legally. If there is no person in the driver seat, will the legislature determine the owner of the car is liable or the manufacturer or both?  It may be a case where eventually the law will have to catch up and possibly impose strict liability on owners of self-driving cars. However that is speculation and that is an area that our state legislature will have to address in years coming. There have already been accidents with self-driving vehicles and the more that enter onto the roadways, the more these types of accidents will occur.

If you are a driver for Lyft or Uber it would be wise for you to carry higher limits for your insurance coverage to protect yourself. At the Law Office of Laura Payne-Hunt, we are always available to give free consultations to discuss coverage is that you have and coverages that you need depending on your situation.  People often ask if they are involved in an accident with it Uber or Lyft driver do they file a suit against Uber or Lyft. The answer is no because Uber and Lyft consider their drivers as independent contractors, unlike cab companies who consider their drivers to be employees. However Uber and Lyft do carry commercial auto insurance policies on their drivers of $1.5 million.

If you or a loved one is injured by an autonomous vehicle or any vehicle, call our office immediately.  We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence.  If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to.  Insurance companies never have the best interest of the injured person at the top of their priorities.  They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur. For any of your legal needs, do not hesitate to contact our offices.  The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

WHAT IS MEDICAL PAYMENT COVERAGE AND DO I NEED IT?

MED PAY — THREE REASONS THIS COVERAGE CAN SAVE YOUR SANITY AND CREDIT SCORE

 

1) Pays your medical bills no matter who is at fault

2) Pays all co-pays from the accident if you have health insurance;

3) Pays medical bills without referral from an accident even if your health insurance does not

or you do not have health insurance.

 

Medical payments coverage, often referred to in the industry as MedPay, is a coverage that pays for medical or funeral expenses that occur as a result of an auto accident. Generally, it is an option that is available when you purchase your auto insurance policy or can be added later. This coverage covers the person who purchased the policy called the policyholder, any passengers and family members driving or riding in the vehicle at the time of an accident. As will be outlined below, this policy can sometimes extend to cover injuries you sustained outside of the car. A very important point of this coverage is that it applies no matter who is at fault for the accident.

 

In this blog about medical payments coverage, hereinafter referred to as MedPay, I will discuss what MedPay covers, how it works, how it can work with your health insurance and the cost of such coverage.

 

What medical bills will MedPay cover?

 

When you or a loved one, a friend or family member is in your vehicle and involved in an accident, injuries can occur. MedPay coverage covers all of these people regardless of who’s at fault for the accident. Medical payments will pay medical bills that are directly incurred by you, a passenger, or a family member in the car at the time of the accident.  Such expenses can include, but are not limited to, x-rays, surgery bills, hospital bills, doctor visits, ambulance, emergency medical fees, professional nursing services and care, any dental procedures that were required as a result of the accident, injuries that you sustain if you were a pedestrian or you were riding your bike if another vehicle hits you, prostheses and even funeral expenses.

 

It is important to realize that MedPay coverage covers  the policyholder even if he/she is outside the vehicle but involved in an automobile involved accident. For example if you were walking and you are hit by a car, or you are riding in a friends vehicle, or even if you are riding on a public bus, your MedPay coverage will pay medical bills up to the limit if you are injured during one of these activities. MedPay also applies if you are involved in an auto related accident outside your state.

 

HOW MedPay COVERAGE APPLIES TO YOUR  INJURIES

 

MedPay can work in any way that is best suited for your situation. As counsel for injured people, we maximize our client’s benefits and make sure that their bills are covered to the best available coverages in every situation. For example if our client has health insurance, we will reserve MedPay claims until all co-pays have been received to make sure that co-pays are promptly paid on behalf of our clients so that bills do not go to collections. If you are involved in an accident and you have MedPay coverage, it is always extremely important to work closely with your attorney to make sure that all bills are timely sent to counsel’s office. At the Law Office of Laura Payne-Hunt, we work diligently to maximize our client’s benefits. It is noteworthy that  our primary area of practice is in the State of Nevada and no-fault states are different. If you live in a no-fault state, it is important to check with your agent to determine whether health insurance would be considered primary or medical payments coverage primary.

 

MedPay coverage in Nevada will pay your bills immediately. They will not ask for a referral or a discount but they will pay your actual bills incurred up to the limit of your medical payments coverage. Often times people assume that the at fault driver will timely pay all their bills. Unfortunately, the adverse insurance company will not pay any bills directly. They will only pay to resolve the entire claim when your injuries and treatment have concluded. There may be a substantial period of time where you have outstanding bills that need to be paid before they go to collections.

Sometimes the limits on MedPay coverage is low, for example $2,000.00 to $5,000.00. It is important to maximize benefits in an auto accident. At the Law Offices of Laura Payne-Hunt, Esq. we have 20 years’ experience in making sure that our clients recover the maximum amount of money in their pocket and all of their bills or timely paid.

 

HEALTH INSURANCE VERSUS MED PAY

 

Over my years in the practice, I have had clients tell me that their agent advised them they did not need MedPay coverage if they have health insurance. Unfortunately, I believe this was bad advice on behalf of their agents. Health insurance does not always pay your medical bills related to a car accident and they are entitled to be indemnified out of your settlement. However, even if health insurance does “cover” your bills, health insurance, as we all know, often will not cover certain events or there can be very large co-pays for out of network or “unauthorized” treatment. Med pay is a coverage that covers this gap. MedPay coverage can offset those expenses and pay those co-pays while your health insurance picks up the remaining balance. MedPay can reimburse you timely for those deductibles so that you do not have to worry about getting behind on bills as the result of  expenses related to an auto accident.

 

PREMIUMS FOR MEDICAL PAYMENTS COVERAGE ON MY AUTO INSURANCE

 

MedPay is a coverage that allows policyholders to specifically choose a limit a.k.a. a maximum dollar amount that will be paid by your policy for your medical bills. It is generally not a very expensive coverage and can provide extraordinary peace of mind and financial security in the event of an automobile collision. Like anything else, there will be a slight increase in your rates for obtaining medical payments coverage. It is also important to note that it is a coverage you can put on your policy at any time. Call  your agent or your carrier to discuss the cost of adding this coverage.  Value Penguin did research regarding the costs.  Below are their finding of some examples of the additional cost added to a premium for  a 30-year-old married person driving a Toyota Camry:

“Coverage Limit per Incident GEICO State Farm Allstate Esurance Progressive*
$1,000 4.56 1.56 8.00 5.10 6.00
$2,000 8.76 12.00 6.46 9.00
$5,000 19.18 3.12 20.00 8.48 17.00
$10,000 27.52 4.37 26.00 28.56 26.00
$25,000 6.87 32.00 36.72 35.00

*Notes: Progressive limits are per person, and not per incident

The most common coverage limits for Med pay  are $1,000, $2,000, $5,000, $10,000 and $25,000 across the five companies we surveyed. GEICO offered more limit options on the lower end of the range, from $500, and then in $1,000 increments from $1,000 to $5,000. State Farm offered more limits on the higher end, including medical payments up to $50,000 and $100,000.”

 

https://www.valuepenguin.com/medical-payments-car-insurance-coverage

 

 

 

 

 

As you can see, certain carriers can provide $25,000 in med pay for a very small monthly fee. Even having a couple thousand dollars in medical payments coverage can be a lifesaver when the ambulance is not covered by your insurance or you have a $500 hospital co-pay and a $500 ambulance co-pay and you are already missing time from work.  The cost will always differ depending on the amount that you opt to buy, the overall underlying policy that you have, your driving record, your insurance carrier, and other factors that impact your overall rates such as driving history.

 

 

NOTE FOR DRIVERS IN NO-FAULT STATES

 

In no-fault states,  Personal Injury Protection (PIP), is a mandatory coverage and MedPay works different in those states.  As of this writing, Arkansas, Delaware, Florida, Hawaii, Kansas, Kentucky, Maryland (unless a waiver is signed at initial purchase of the policy), Massachusetts, Michigan,  Minnesota, New Jersey, New York, North Dakota, Pennsylvania, and Utah.  Several states require insurance companies to offer PIP coverage, but allow the insured to reject it in writing which include Washington and Texas.  Michigan is the only no-fault auto insurance state with no limit on medical expenses.  In states with PIP, drivers may still want to buy medical payments coverage because PIP is subject to claim limits. If a you live in a PIP state and your medical bill exceeds your PIP limit, you would have to pay for the out-of-pocket, which MedPay  could pay.  In that situation, you could recover for therapy and lost income  under PIP, and get reimbursement from MedPay  for other medical expenses.

 

If you or a loved one is injured call our office immediately.  We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence and maximize all of your coverages.  If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to.  Insurance companies never have the best interest of the injured person at the top of their priorities.  They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur. For any of your legal needs, do not hesitate to contact our offices.  The Law Offices of Laura Payne-Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

HOW MUCH CAN MY MEDICAL MALPRACTICE LAWYER CHARGE ME?

TOP THREE THINGS TO KNOW WHEN HIRING A MEDICAL MALPRACTICE ATTORNEY

  • Are the fees capped in my state like they are in NV and CA
  • Call several attorneys to compare rates before hiring
  • Cheaper is usually not better. Do your research, know the law.

In 2004, Nevada, pursuant to Ballot question No. 3, implemented a statutory limitation on attorney’s fees in medical malpractice as a result of the tort reform bill that was passed into law by a vote upon of the people. NRS 7.095 prescribes the statutory allowable fees that attorneys can charge in medical malpractice cases. Therefore, the state legislature has determined what a reasonable fee is for a medical malpractice case.  Courts in California have consistently and uniformly held that even with a valid, agreed upon, non-disputed waiver in place, the statutory provision regarding attorney’s fees is not waivable or “voidable.”  An extensive review of the California decisions on this issue reveals the courts have consistently held that a comprehensive and extensive writing waiving the statutory fee limitation is still insufficient to void the statute.  In fact, they have consistently ruled that the statute is not “voidable.”

NEVADA LAW REGARDING ATTORNEYS FEES FOR MEDICAL MALPRACTICE CASES

In Nevada, the State Legislature added NRS 7.095 to the Nevada Revised Statutes in 2004 pursuant to the passage of Ballot Question No. 3 passed on November 4, 2004, which states as follows:

NRS 7.095  Limitations on contingent fees for representation of persons in certain actions against providers of health care.

  1.   An attorney shall not contract for or collect a fee contingent on the amount of recovery for representing a person seeking damages in connection with an action for injury or death against a provider of health care based upon professional negligence in excess of:

               (a) Forty percent of the first $50,000 recovered;

            (b) Thirty-three and one-third percent of the next $50,000 recovered;

            (c) Twenty-five percent of the next $500,000 recovered; and

                (d) Fifteen percent of the amount of recovery that exceeds $600,000.

            2.  The limitations set forth in subsection 1 apply to all forms of recovery, including, without limitation, settlement, arbitration and judgment.

3.  For the purposes of this section, “recovered” means the net sum recovered by the plaintiff after deducting any disbursements or costs incurred in connection with the prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and general and administrative expenses incurred by the office of the attorney are not deductible disbursements or costs.

              4.  As used in this section:

            (a) “Professional negligence” means a negligent act or omission to act by a provider of health care in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death. The term does not include services that are outside the scope of services for which the provider of health care is licensed or services for which any restriction has been imposed by the applicable regulatory board or health care facility.

(b) “Provider of health care” means a physician licensed under chapter 630 or 633 of NRS, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, medical laboratory director or technician, licensed dietitian or a licensed hospital and its employees.

(Added to NRS by 2004 initiative petition, Ballot Question No. 3; A 2011, 1510)

Although the Nevada Court has not specifically addressed the attorney fee provision, they have addressed the constitutionality of the statute and repeatedly followed precedent from the mirrored statute from California that has been in force since 1975.

CALIFORNIA LAW ON LIMITING ATTORNEYS FEES IN MEDICAL MALPRACTICE ACTION

Although the medical malpractice reform act was not passed in Nevada until 2004, the Medical Injury Compensation Reform Act of California (herein referred to as MICRA,) was enacted in California in 1975 by the California Legislature and signed into law by Governor Jerry Brown in September 1975. The act was intended to lower medical malpractice liability insurance premiums and was enacted on an emergency basis to keep healthcare providers as a whole financially solvent. It was intended to lower the cost of healthcare services and make them more available.  Since MICRA was enacted nearly 40 years ago, it has been challenged on numerous occasions in the California Courts. It has repeatedly been held constitutional by the California Courts and almost all of the original MICRA legislation is still in force and effect and part of California law.

The Nevada statute is nearly identical to the California Statute.  In California, non-economic damages are capped at $250,000 instead of $350,000 in Nevada.   However, the California statute limiting attorney’s fees is almost identical to Nevada’s statue. Extensive litigation has gone on in California regarding the attorney’s fees provision under the MICRA statutory scheme.   In California, plaintiffs’ attorneys can receive 40% of the first $50,000 recovered, 33 1/3% of the next $50,000 recovered, 25% of the next $500,000 recovered, and 15% of any amount recovered in excess of $600,000 under Business and Professions Code section 6146.

A RAND report issued estimates that as a result of MICRA, defendants’ liabilities were reduced by 30%.  However, between 1985 and 1988 malpractice premiums actually rose 47% in California. After 1988 insurance premiums in California experienced a decrease which was a result of proposition 103. It was voted into law in 1988 at section 1861.01 of the California insurance code and explicitly required a rollback of insurance premiums by 20%.

www.consumerwatchdog.org/documents/1008.pdf   ) ( March 7, 2003)

New challenges were raised to MICRA by the plaintiffs’ bar after proposition 103 was enacted claiming that MICRA was outdated legislation and that the problem of increased premiums was resolved by proposition 103. The courts repeatedly declined to rollback or limit MICRA’S provisions after the enactment of proposition 103.  (Cal Ins. Code Sec. 1861.01)

Nevada Origination of the Statute

Seeing the alleged success of this legislation in reducing insurance premiums for medical writers in California, other states started to follow suit. Nevada placed Question No. 3 on the ballot in 2004 and on November 4, 2004, it was ratified by a 60% majority of Nevada voters.  Question No. 3 set a maximum schedule for attorney’s fees and capped non-economic damages at $350,000. The question, known as the KODIN initiative for keep our doctors in Nevada, was promoted by pointing to an alleged trend of Nevada doctors fleeing the state for states with lower malpractice premiums like California. To counter this legislation the Nevada plaintiffs’ bar put Questions No. 4 and 5 on the same ballot.  Both were defeated in the election and the statutory scheme was voted into law by the Nevada public and became law in the state in 2004.

NEVADA CASE LAW

In Tam vs. The Eight Judicial District Court, 131 Nev., Advance Opinion No. 66346, (2015) the Nevada Supreme Court upheld the constitutionality of NRS 41A.035 (2004).  In the Tam case, the Supreme Court granted a writ of mandamus on behalf of Dr. Tam challenging the district court’s ruling the state statute was unconstitutional in medical malpractice actions. In the opinion which is decided on a writ, the Nevada Supreme Court resolved three primary issues related to the statute:

  • Whether the statue violates a Plaintiff’s right to a trial by jury;
  • Whether the cap applies separately to each cause of action;
  • Whether the statute applies to medical malpractice actions.

The Supreme Court held that the district court erred in finding the statute was unconstitutional on the basis that it violated the plaintiff’s constitutional right to trial by jury.  The court further held that the district court erred when it found that the statutory cap applied per plaintiff and per defendant. Finally, the Supreme Court also concluded that the District Court erred when it found the statute applied only to professional negligence and not medical malpractice.

The underlying facts of the case involved the death of Charles Thomas Cornell, Jr.  an action brought by his wife Sherry Cornell, the real party in interest. Mr. Charles had multiple medical conditions and he passed away after being released from the hospital and alleged he was not prescribed medications and further care to treat his diabetes.  Suit was filed against numerous defendants after Mr. Cornell‘s death.  Relevant to the opinion was the writ of mandamus filed regarding the ruling on Defendant’s omnibus motion in limine.  The motion filed by Dr. Tam requested that non-economic damages be limited to $350,000 pursuant to the statute NRS 41 8.035. The District Court denied the motion finding the statute was unconstitutional and violated Plaintiff’s constitutional right to a trial by jury.  The District Court, also held that the statutory cap did not apply to the case as a whole and that a separate cap applies for  each plaintiff  and for each of the defendants. In addition, the District Court found the cap did not apply to medical malpractice claims. Based on that motion in limine, relief under a writ of mandamus was sought and granted.

Among other things, the Supreme Court held that for a statute to violate the right to jury trial, it must make the right practically unavailable. They relied upon Barrett vs Baird 111 Nev. 1496, 1502, 908 P 2d 689, 694 (1995) The Supreme Court acknowledged that jurisdictions disagree on whether statutory damages caps violate the right to a trial by jury.   They stated that they have previously found that a statutory limit on damages does not infringe on the plaintiff’s constitutional right.

In Arnesano vs State Department of Transportation 113 Nev. 815, 819, 942 P 2d 139, 142, (1997), the court relied upon the case of Martinez vs Maruszczak, 123 Nev. 433, 168 P. 3d 720 (2007) and held that “it is not the role of a jury to determine the legal consequences of its factual findings… That is a matter for the legislature. “ Id at 819-820, 942 P. 2d at 152 quoting Boyd vs Bulala 877 F. 2d 1191, 1196 (4th Cir. 1989). The Nevada Supreme Court looked to California for guidance.   This issue has been decided in California in addressing the constitutionality of the statutory cap on non-economic damages in cases involving healthcare provider’s professional negligence. In Citing Yates vs Pollock, 239 Cal Rpt. 383, 385 (Ct. App 1987) the court concluded “that such an argument is merely an indirect attack upon the legislatures power to place a cap on damages. The Yates court noted  that while the statute could possibly result in a lower judgment of the jury’s award, “the  legislature retains broad control over the measure of damages a defendant is obligated to pay and that a plaintiff is entitled to receive… and it may expand or limit recoverable damages so long as it’s action is rationally related to legitimate state interest.“  Yates at 385–386

The Nevada Supreme Court  in Tam went on to state that “consistent with our prior holding in Arensano and persuasive case law from California, “we conclude that NRS 41A.035 does not interfere with the jury in their factual findings because it takes affect only after the jury has made its assessment of damages and that  it does not implicate a plaintiff’s right to trial by jury.”

The court went on to hold that the statute also did not violate equal protection rights and also relied on California holdings on this issue.  The court further held that “we do not look beyond the language of the statute if it is clear on its face“ citing  Beazer Homes Nevada Inc. vs Eighth Judicial District Court 120 Nev. 575, 579, 97 P. 3d 1132, 1135, (2004.) In this instance, the Tam decision did not address the attorney fee portion of the statute, NRS 7.095, although  the provision is very clear on its face.

Also discussed by the Supreme Court in the Tam decision is the legislative history which they acknowledged discusses a comparison between the Nevada statute and California’s analogous statute noting “that NRS 41A.035 is similarly per incident not per claimant, and not per doctor.” The court also held that “the official explanation to ballot question No. 3 stated that the previous statute provided that a person seeking damages in a medical malpractice action is limited to recovering $350,000 in non-economic damages from each defendant and  the proposal, if passed,  would limit the recovery of non-economic damages to $350,000 per action”  (Citing Nevada ballot questions 2004, question No. 3, explanation at 14 available at HTTPS://www.leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/2004.pdf2004.  )

The court in Tam went on to state “the intent behind the statute is further evidenced by the legislature is discussion of recent amendments to NRS 41A.035, indicating that the purpose of the 2004 amendments was to clarify that the cap for non-economic damages is intended to apply per action. “ (See Hearing on SB 292 before the Senate Judiciary Comm, 78th Leg. (Nev., March 26, 2015). It is clear from this decision that the Nevada Supreme Court found this legislation to be constitutional. It is also clear that they looked to California for guidance in mirroring their statute and will likely look to California for guidance in its further application.

As attorneys, the people sitting next to us are the clients we are here to protect.   Their rights are paramount.  It is our duty as lawyers to advise them and to counsel them to allow them to knowingly make decisions that affect the outcome of their cases.  Lawyers are charged with the ethical duty of advising their clients of the law in many situations.   Whether it’s a plea agreement in a criminal matter, whether it’s a bankruptcy, whether it’s this case where the statute at issue was voted on by the people and enacted into law, it is the responsibility of counsel to explain to clients that the law allows them to make decisions for the outcome of their case.

Although the supreme court in the state of Nevada has not ruled on this specific attorney fee issue under the reform statute, the ruling in the Tam case is clear that they find the statutory provisions to be constitutional. The Nevada Supreme Court has  looked to our sister state of California in reviewing the constitutionality of the Nevada act’s provisions, which mirrors the California legislation. It is important for attorneys to be clear and accurate in advising clients of their rights.  At the Law Offices of Laura Payne-Hunt, we take the time to meet with every client and take pride in explaining the law and their options in detail.  I operate a small, boutique law firm specializing in giving personal representation to each client.

If you or a loved one has been injured as a result of poor medical care, call our office immediately.  We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence.  If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to.  Insurance companies never have the best interest of the injured person at the top of their priorities.  They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

At the Law Offices of Laura Payne-Hunt we are here to help you and your family in the event that accidents and tragedies occur. For any of your legal needs, do not hesitate to contact our offices.  The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.

TOP 10 MISTAKES INJURED VICTIMS MAKE WHEN SEEKING MEDICAL CARE AFTER AN ACCIDENT

  • Victims Wait too long to obtain medical care
  • Missing medical appointments
  • Guessing about facts of the accident when asked by their doctor
  • Not being honest or accurate about their health history
  • Down playing injuries or trying to be tough
  • Not telling the doctor about all of their symptoms
  • Not cooperating with their doctor
  • Not keeping written documentation
  • Stopping treatment too soon
  • Telling the insurance company about their injuries prematurely

Our office has been representing injury victims since 2004.  Since that time, Laura Payne Hunt has helped hundreds of clients obtain money for the injuries they sustained.   Based on this experience, I have witnessed how accident victims can unintentionally ruin their own case because of the things they say and do during doctor visits or their failure to attend such visits. I am providing this short condensed list to help victims seeking care for their injuries.  Most people have never had to make a claim and are unprepared for the medical history and care that must be diligent and accurate to serve your best interests.  The number one matter is HONESTY HONEST HONESTY.  You must provide every provider with an accurate history to the best of your ability.  An honest oversight can result in a challenge to your credibility at a later time.  Therefore, even if you forget something at one appointment, it will never be too late to advise your doctor to add your omission to the records at a later time. Remember that everything

you say and your actions at your doctor’s office (or other medical providers) is likely to be documented in your medical records. Therefore, you should understand that your medical records are going to wind up in the hands of the insurance company or lawyer defending your personal injury claim. For that reason, you should be aware of the mistakes that can adversely affect your legal claim and the following is a list of the most common:

 

1). Seek medical attention right away for your injuries.

 

It is extremely important that your injury is documented as close to the time of accident as possible. If you are involved in an accident and you are feeling pain or other symptoms after the accident, it is extremely important that you go to the hospital or quick care or your family doctor to be checked out immediately. With prompt care you will get better medical attention and your injuries will be better documented.  I have often heard clients say “well I want to just wait and see if it goes away.”  In the normal setting this might not be a bad plan. However, if it does not go away and you do not seek treatment the  insurance company will argue that some other intervening cause is the reason that you were having pain or that your pain must have not been that significant if you waited to get medical attention. It is the oldest argument in the book from the defense and one that they make time and time again. So if you are involved in an accident and is not your fault, meaning someone else is responsible for injuries and pain, it is important to document that injury immediately to prove that it is causally related to the accident that you were involved in with that third-party.

 

2) Do not miss medical appointments for the injuries you sustained an accident

 

Another issue that the insurance company will look for immediately in your records is whether you missed appointments on any regular basis. They will argue that skipping a doctor’s appointment meant that you were not feeling pain that day. We all know that life intervenes and that there are hundreds of reasons that you could not attend an appointment, including, work family commitments etc. However, the insurance company will not see it this way. If you have to reschedule appointment be diligent in rescheduling around your personal commitments. At our law office we are very conscious of our clients’ needs and we will find medical providers that will work with your schedule and provide after hours appointments or even the weekend appointments to accommodate your daily life.

 

3) Give an accurate accident history to the doctor of only facts that you know.

 

An accident is a trying, frustrating, scary event that happens in seconds. It is very difficult to know or understand all of the exact movements that happened to your body or even sometimes how the impact occurred in complex, multivehicle crashes. Tell the doctor what you know factually to the best of your recollection but do not guess about things you do not know. For example, I’ve often had clients tell doctors an unreasonable rate of speed of the accident occurred at such as 80 miles an hour. Realistically, I think most people understand it if you were hit at 80 miles an hour in the vehicle, it would be unlikely that you would have survived. But people just know that it was hard and it was violent and it happened very quickly.  So when asked to describe the accident simply state the facts that you recall and are firm in your memory. For example: “I was rear ended by another vehicle.” Or “The accident was hard.” Or “I don’t know what happened to my body inside the car.”  Again, these medical records will wind up in the defense hands and they will scrutinize everything you told the doctor.  They will do their best to challenge your credibility or recall of the events. Therefore, it is important that the information that you tell your doctor for the basis of your care is accurate. If that information is incorrect, they will argue that your care was not related to the accident because it is based on false allegations

 

4) Be honest about your medical history with your doctor

 

Doctors and hospitals will take a complete medical history when they are providing care. It is important that you are accurate in describing any past injuries or accidents or illnesses or surgeries that you have had in the past. The reason for this is that we can always explain all of your medical history and how it is or is not related to an accident. However, we cannot explain missing information and that will make you appear as though you were lying to your doctor. With many years of experience, I completely understand that people forget things or don’t recall things that happened to them when they’re in a stressful situation. If you forget information at the time you’re asked, it is never too late to tell your doctor “I forgot to tell you I broke my wrist 10 years ago” or “oh, I forgot to tell you I had knee surgery two years ago.”  It is important that those things are documented in the record. Clients often state “well I didn’t think it was relevant.”  It may not be relevant to the accident injuries that you sustain but it is important to know that is relevant to your credibility. And your whole case will always rest upon your credibility. The insurance company will immediately start to tear down your credibility from the first time that you make the claim. They are not on your side and they will use anything they can to diminish the value of your claim.

 

5) Do not talk to your doctor about the financial part of your claim.

 

It is not appropriate or necessary for your medical care to tell your doctor that you hope to get a certain amount of money from your claim or that you need money as a result of your injuries from the accident. That is a discussion to have with your attorney, not your doctor. Doctor’s records are part of the case and they are not privileged in a legal action. They are not available to the public and you have a right of privacy, but if you file a legal claim all of those privacy rights are waived because those records are needed to support your claim. Any financial questions you have about your claim should be directed to your attorney and discussed with your attorney and not with your medical providers

 

6) Not telling the doctor about all of their symptoms.

Tell your doctor about all of your pain and any life disruptions it causes.

One of the biggest mistakes that we’ve had over the years with clients is that they want to appear tough or they do not want to appear as a whiner or complainer. Sometimes people just resolve themselves to having pain and  don’t want to discuss the details of how that pain impacts their life to their doctor. It is important that your doctor understands what you are going through so that he can give you the proper treatment. If you choose to “tough it out”, that will impact your claim and diminish the value.  This is because what you are truly going through and the pain you are having will not be documented.   As a result, the insurance company will find you are not entitled to compensation for your symptoms that are not documented. What you tell your doctor is crucial to determining the value of your claim. That is because a personal injury action is tied to the amount of personal injury that a person sustained. You can see this by imagining yourself on a jury. If someone comes to the courthouse and testifies that five days later they were pain-free and back to the regular activity, it would be likely that you would not compensate them in a large manner. If someone comes to the courthouse four years later they are still limping and they are still unable to conduct their necessary daily activities, that case has a much different value.

 

7) You must cooperate with your doctors during the claim.

 

Another issue we have with clients is that they don’t want to go to doctors’ appointments. Doctors work together and different doctors treat different parts of the body and different injuries. Your family doctor may refer you to a pain management doctor or to an orthopedic doctor when your pain is not getting better. The chiropractor may refer you back to your family doctor when he feels that you are not improving as he would like. Complex claims involve complex medical treatment. It is important that you follow the advice of your doctor in following up with additional providers if they are recommended.

 

8)  Keep your records that you are sent.

 

If you receive any type of billing or medical records it is very important that you keep those in the file. Any receipts you receive from doctors from your appointments, any discharge information from the hospital, etc. should be kept. All paperwork that relates to your injuries you should keep in the file. This can make it much easier to track down all of your medical bills and records when they are needed. Often times a hospital visit will result in 3 to 5 bills.  For example, radiology and emergency care will be billed separately. It is important you keep a file with all of those bills so that all of the records can be obtained to support your personal injury claim

 

 

 

9) Do not stop treatment until you are discharged by your doctor.

 

Your doctor will decide when you have reached what is called “maximum medical improvement.”  That means they will provide treatment and care and referral treatment and care until they feel that your medical needs have been met and that you are stable.  If you stop treatment on your own without consulting your doctor, the insurance company will immediately argue that you were better or that you failed to mitigate your damages because you did not complete your treatment as required by the doctor.  In addition, if you are still having pain they will discount the pain because you did not finish your treatment. Therefore, it is very important to communicate well with your treating doctor and agree that you are ready to conclude your medical care for the accident

 

10) Never talk to the other insurance company with a lawyer

 

It has become a common practice recently for insurance companies to call an injured victim within days, sometimes hours of an accident. We have even had cases where insurance adjusters have met injured victims at the hospital to try to elicit statements from them. Do not talk to anyone following an accident who is not a doctor, family member, or a lawyer that you retained. Clients are often disoriented, upset and stressed after the accident. Insurance companies will attempt to leverage this stress in their favor. They will call you and ask you about your injuries on a recorded line and clients often will say oh they are feeling better or they don’t know. But it turns out they actually have fractured ribs and they were trying to tough it out. Nothing can hurt you in any legal setting more than your own words. It is important that you choose carefully who you speak to regarding any injuries you sustained. The insurance companies can be extremely unscrupulous and leading in obtaining statements from victims

 

If you or a loved one is injured call our office immediately.  We can make sure that you receive the care you need and deserve, and advise on how to preserve evidence.  If you have been in any type of accident and have questions, please don’t hesitate to contact our offices today.  At my office, we are experienced in helping injured victims get the compensation they are entitled to.  Insurance companies never have the best interest of the injured person at the top of their priorities.  They want to pay as little on every claim as possible.  Having worked for an insurance company as an attorney for 9 years before opening my boutique law firm specializing in helping injured people, I reviewed thousands of auto accident claims and policy provisions.

At the Law Offices of Laura Payne Hunt we are here to help you and your family in the event that accidents and tragedies occur. For any of your legal needs, do not hesitate to contact our offices.  The Law Offices of Laura Payne Hunt is a boutique, family owned law firm in Henderson that specializes in helping injured people and the community with legal issues involving auto accidents, wrongful deaths, slip and falls, truck accidents, injuries to children, bicycle accidents, dog bites, and all types of injury claims.  Please do not hesitate to call us anytime you have a legal question or you or a loved one has sustained an injury at 702-450-(HUNT) 4868 and text 24/7 at 702-600-0032.