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