If You Are Injured, Listen to Your Doctor

If you are injured due to someone else’s negligence, you have the legal right to be compensated for your financial losses, medical expenses, lost earnings, pain and suffering. Of course, financial compensation can and should be a significant consideration. However, the primary consideration after an injury should be your recovery. Always.

That begins at the beginning – when you are first examined by a medical professional in the Emergency Room. Typically, ER physicians are quite thorough in their examinations, particularly when it comes to potential brain injuries. However, when an ER doctor discharges you, she will give you specific “discharge instructions,” which may include R.I.C.E (rest, ice, compression, elevation); return to the hospital, if necessary; and/or follow up with your own physician. (You should always follow up with your own physician.)

Should you require treatment for your injuries, you must take it seriously – you must follow your doctor’s instructions to the letter. That means, if your doctor prescribes diagnostic tests such as x-rays, MRI’s, CT scans, EMG’s, you must comply. The results of these tests will help your doctor detect specific injuries you’ve suffered, and determine a course of treatment. There are many instances where injured patients are left with conditions that are not detectable by examination only. Ignoring medical advice could be perilous.

Often, even if your injuries are not life threatening, they could be life altering. Soft tissue injuries such as herniated discs, for example, may worsen over time if not addressed in a timely manner. That sometimes means that your treatment regimen will include trigger point injections, epidural steroid injections, or even more invasive treatment such as surgery.

Following your doctor’s advice will most certainly help you to recover. It also has the added benefit of helping your personal injury case. Conversely, failing to follow your doctor’s advice will have a negative impact on your personal injury case.

Your entire treatment record, every single thing your doctors advise you to do and how they have treated you, will be evidence for your attorney. It also will be read and used by the opposing attorney. That means if you have not followed your doctor’s instructions; if you have not gone for that MRI, the opposing attorney could use that as evidence that you are not that badly injured.

The entire system including judges, juries and insurance companies already are skeptical of personal injury claims. When you do not follow a treatment regimen, they may assume that you must have fully recovered. The law in New York has been developed to the illogical extreme that if you stop your medical care, the defense can argue that you do not have a permanent condition.

Failing to follow medical advice can also allow opposing attorney to argue, at trial (supported by an instruction on the law by the judge) that you failed to mitigate your damages, meaning that you did not take whatever reasonable medical steps were available to you to improve your condition.

For the sake of your health, and for the sake of recovering financial compensation that you well may need, listen to your doctor. Follow your doctor’s advice.

What A Motorcycle Accident Really Means To The Victim

Often, when people think about personal injury cases, they think about accidents that result in soft tissue injuries that, while serious, usually do not cause paralysis. Or, they think about that slip and fall accident where the injured party breaks a bone. Either of these scenarios adversely affects the lives of the injured parties. However, motorcycle accidents, where the motorcycle driver risks direct contact with much larger vehicles, can be among the most catastrophic accidents personal injury attorneys see throughout their careers.

One common result of motorcycle accidents is paraplegia. Paraplegia generally means damage to the spinal cord or to the brain. This devastating injury can be temporary, but when it is permanent, the injured person loses mobility below the waist and his life is forever changed.

A big challenge in treating paraplegic patients is there seems to be no notable consistency to the condition. That is, some people, with therapy and treatment, may improve over time; while others never improve at all. In an instant, you can be riding your motorcycle, obeying all of the rules of the road; and the next instant, you could wake up in a hospital, unable to move your legs.

Unfortunately, last August, that is precisely what happened to a Sanitation worker on his way home from work. He was riding his motorcycle in the Bronx, and was struck by a car making an illegal left turn. The injured man was fighting for his life, suffering 16 broken bones, a collapsed lung, and paralysis in both legs. Doctors told him that he would never walk again, but he continues to try to beat the odds.

To break down just what this type of partial paralysis means, understand that in addition to tragically losing mobility, the injured party also may suffer from a loss of bladder and bowel function. Those conditions can lead to extreme discomfort, humiliation, and even various forms of infection.

Paraplegics often suffer from sexual dysfunction or infertility which may contribute to chronic depression and isolation.

Chronic pain is another common side effect of paraplegia, and controlling it remains difficult. Also, it is crucial for paraplegics to continue physical therapy since weight gain from lack of activity may set in.

Paraplegics also are susceptible to secondary infections such as bed sores or skin lesions, and they often require assistance functioning on a daily basis, depending upon the severity of the condition.

Any individual who suffers paraplegia because of someone else’s negligence absolutely should seek legal counsel in order to obtain much needed financial compensation.

Turns Out, Government Officials Can Be Held Accountable For Toxic Public Water

It all began nearly five years ago when the Michigan state government decided it was a good idea to switch the city of Flint’s water supply from the fresh water of Lake Huron to Flint River, even though it was widely known that Flint River had been full of industrial waste for years. When the city’s residents began to complain of oddly colored water coming out of the tap, that state government reassured them that the water was safe to drink. As a result of water testing, many months after the first complaints by city residents, on December 14, 2015, Flint Michigan, it was declared, was in a state of emergency.

The NAACP, the ACLU, and numerous attorneys representing Flint residents whose children had been exposed to lead poisoning, filed a class action suit against Michigan government officials, including the governor, who had originally been dismissed from that class action suit.

In January 2019, a Sixth Circuit Court of Appeals panel ruled that the city of Flint is not, it turns out, immune from federal lawsuits due to water contamination, regardless of whether the city was under a state of emergency or not.

The judge in the case, Richard Griffin, stated, “The crisis was predictable and preventable,” and writing for the majority opinion further stated, “government experiments on unknowing and unwilling patients.” Attorneys for one of the Flint Plaintiffs noted that decision could be “game-changing” for a separate class-action lawsuit pending in U.S. District Court.

Thus far, the state of Michigan has brought charges, including involuntary
manslaughter, against 15 state and Flint city officials. The involuntary manslaughter charges pertained to the Legionnaire’s Disease outbreak that arose out of the infected water supply where nearly 80 people were sickened and 12 people died.

While defendants’ attorneys argued that the Flint water crisis was a series of mistakes rather than a set of premeditated actions, residents of Flint, nonetheless, to this day, do not have confidence to drink or bathe in their city’s water. Chances are good that the effects of Flint’s lead exposure will not be realized for many more years, but a September 2015 study showed that the number of Flint children with high levels of lead in their systems doubled after this lead exposure. And, there are studies that indicate fertility was adversely affected. Lead poisoning can cause malfunctions in the liver, the brain and the kidneys; and may cause cognitive deficits and antisocial behaviors, both contributing to lower academic performance.

Epilepsy As A Result Of Brain Trauma

Unfortunately, brain trauma from accidents is a major cause of epilepsy. Car accidents, motorcycle accidents, football games, any of these can be the culprit. Both seizures that occur immediately after brain trauma and those that occur much later (well after one week) can result in the condition being ongoing, but the earlier treatment begins, the better. Seizures that occur up to one week after injury often may resolve, while those that occur much later tend to result in the recurrent condition known as epilepsy.

Generally, the more severe the head trauma, the more likely it is the individual could be left with epilepsy (Post-traumatic Epilepsy); when the injury is so severe as to cause bleeding, fractures or comas. Diagnostic testing of the brain is not always reliable in determining the precise cause, however. But coupled with the evidence of a serious accident and injury to the head, doctors can be fairly certain of the origin.

Most people think they know what an epileptic seizure looks like – someone shaking, then falling to the ground. However, epileptic symptoms actually begin with abnormal eye movements or staring, head shaking, and a general unresponsiveness to stimuli. Most often, the best thing to do when you see someone having a seizure is to clear the space around him, try to cushion his head, and call for medical assistance.

Epilepsy can be well controlled with medications such as Phenobarbital and Topiramate, but in most cases in New York, people with the disorder must wait one year without a seizure to drive a motor vehicle. When an individual has seizures that cannot be well controlled by medication, doctors will recommend extensive testing and monitoring.

As with all disorders from head injuries, epilepsy is invisible until it’s not. In fact, an individual that has suffered a severe head trauma probably should be regularly checked for symptoms years after the injury because Pot-traumatic epilepsy can occur years later.

Yes, This Really Happened – Shooting Victims Sued By Las Vegas Hotel

In what amounts to an attempt to thwart lawsuits by individuals who were shot at during the Las Vegas massacre, MGM Resorts, owner of the Mandalay Bay Hotel where a domestic terrorist wounded 500 people and killed 58, is suing the victims of the attack.

While they are not suing for money, they are suing to prevent the victims from suing them, first. The hotel does not want to be held liable for what could be called the worst mass shooting in our modern history.

Not wanting to appear cynical, MGM Resorts said it only is suing those shooting victims that have already sued them, or plan to sue. I suppose that’s something. We shall see how this all pans out in court.

Don’t I Deserve Financial Compensation?

As the injured party, the answer is absolutely. However, the defendant’s insurance carrier very well could have a different point of view. That may not seem fair or equitable, but, once again, insurance carriers do not exist to be fair; they exist to make money. And paying out financial compensation to injured parties is not their desired path to profits.

Fortunately, the final decision of whether you are entitled to compensation is not up to the insurance carrier – that decision is up to the courts, and it is my responsibility as a personal injury attorney, to make your case which generally involves some kind of compromise. Compromises usually mean that neither side gets everything what they want, but the goal is to make sure you get more than the insurance carrier tells me they are willing to pay.

A Long, Slow Slog

Along with understanding that any settlement will be a compromise, you also need to be prepared for a very long wait. Regardless of how clear cut your case is, and regardless of whether the insurance carrier knows they will settle, their mantra always is to slow things down. The longer it takes to resolve a case, the more money they save. As a plaintiff’s attorney, I have to appear as patient as possible, otherwise the insurance carrier has the edge in any negotiation.

I tell all of my clients to not expect the insurance carrier to compensate them for the full value of the policy unless the defendant’s fault is absolute and your injuries are severe and absolutely proven to be a result of negligence. That almost never happens. Rather, event though you were the victim of negligence, you and your actions during the accident as well as the resulting injuries you suffer will be endlessly pored over, analyzed and questioned. The insurance carrier will try to assign at least blame to you, and that infuriates all of my clients.

What I Need To Know

To help insure I can get the best possible result for you, I will need all diagnostic tests; evidence that you sought medical care immediately following the accident; all medical reports including surgical reports; and confirmation of injury from your treating doctors. I also will need to know what your functional limitations are; whether you can return to work; how much work you have missed (and missing income); whether you have any pre-existing conditions; whether you’ve been involved in a personal injury lawsuit before; and whether your injuries have caused you permanent damage.

However, the amount of compensation you receive also depends upon the amount of insurance coverage the negligent party has. If the other party is only covered for $100,000, your compensation cannot exceed that amount.

What To Do On That Dreaded IME Day

No matter how much I tell my clients to remain calm before and during their Independent Medical Examinations, the stress always is palpable. Once again, relax. We are talking here about just one cursory medical examination by a physician who has been hired by defendant’s insurance carrier. And going in, you should know that this physician likely will present a report that is favorable to his or her client – said insurance carrier.

However, that does not mean that there aren’t some things you can do to lessen the tension. First, remain calm. That is crucial because if you go into the exam a nervous wreck, you are liable to say or do something that could damage your case. And, it also pays to be on time. You should assume this doctor is not there as your advocate, so why give him/her any reason to be annoyed with you.

I am repeating myself when I say that neither the insurance carrier nor the IME doctor are your friends, so don’t expect to make any kind of doctor-patient connection. Answer questions when asked, and answer them honestly. But remember to be specific and comprehensive; do not forget to tell this doctor about everything that is bothering you. If you leave out a symptom or discomfort, and it surfaces later in the case, opposing attorney could make you appear untruthful.

The other extreme, of course, is over-dramatizing your symptoms. We all have an image in our minds about that injured plaintiff who wears a neck brace to court – usually in some comedy sketch. Yeah, the audience always laughs because we are in on the joke – we know THAT guy is, shall we say, embellishing on his condition. Don’t do that. Remember that you don’t have to be wearing a neck brace, walking on crutches, or be bedridden in order to be genuinely hurt or disabled. In fact, sometimes, hidden injuries are the most severe. Tell the truth as you know it and as you feel it. When you tell the truth, you don’t have to remember anything except the truth.

Before your IME, it also is a good idea to go over the details of your accident AND your medical treatment in your own mind. Make a list, if you need to, of the timeline of your treatment as well as all of the specialists you’ve treated with. List all of the diagnostic tests you’ve had, and be prepared to answer questions about medications and physical therapy, if you are asked.

If after all of this preparation you still feel apprehensive about going to your IME appointment, you might want to speak with your personal injury attorney about arranging for a medical professional to accompany you. You have the right to have a nurse, for example, join you in the exam room. The nurse will be on your side. He or she can take notes, watch how the doctor conducts the examination, and report back to your attorney. All the facts about your IME will be documented, and you will not be alone.

Motorcycle Safety Is No Joke

I love riding my motorcycle. Truth is, I can’t wait for the beginning of the spring to use it and to plan trips with other bikers. There is nothing quite like cruising up and down the coast in warm weather.

However, I never lose sight of the fact that as a motorcyclist, I am at much greater risk of being injured on my bike than I would be driving my car. That is just a fact. The only responsible thing bikers can do to try to “lower the odds” is to exercise obsessive safety precautions at all times.

According to the Governors’ Highway Safety Association (GHSA), in 2014, alone, 4,486 motorcyclists were killed on our nation’s roads and highways. Not surprisingly, they found that riders who did not wear protective helmets were ten times more likely to be killed than were those who did wear helmets – (1,565 versus 151). In 2013, GHSA determined that helmets saved the lives of over 1600 motorcyclists, and an additional 715 more lives could have been saved by wearing them.

WEAR YOUR HELMET!

The GHSA also recommended that all states should require training for new bikers, minors, and those bikers who have not ridden in a while, and that those courses should be given by experienced, qualified instructors. They noted: “NHTSA, along with motorcycle organizations and other stakeholders, should develop a model motorcycle operator training program and quality control guidelines for instructors, deploy them at selected locations and then evaluate their effectiveness. Once the model curricula and instructor guidelines are complete, then states are encouraged to use them. States should also examine their motorcycle crash data to determine if the model training program should address specific state problems by emphasizing certain situations of skills. States should be encouraged to enhance their training to ensure that state-specific needs are met.”

The amount of training required, unfortunately, differs from state to state. However, in New York, you must have a Class M or MJ Operator’s License or Learner’s Permit. And just like a regular car license, to get a motorcycle license, you must pass both a written exam and a road test. Of course, even if you already have your license, if you haven’t used your bike for a while, common sense dictates that you go for a refresher course, and there are many available through various motorcycle associations and groups.

And one more thing – if you are under the influence, stay off the bike – period. There are no exceptions here. No surprise, the GHSA found that impaired motorcyclists make up a substantial proportion of total motorcycle fatalities. When you ride, you absolutely need to be alert and aware AND prepared to navigate on the spot, if need be. If you have been drinking, even a little bit, your reflexes simply are not as responsive. When you’re on a bike, one split second can mean the difference between life and death.

Injured? Keep Treating

Before taking on any new client, during the initial evaluation, I generally determine whether he/she has a viable case. What is a viable case? Typically, a viable case is one where an injury caused by the negligence of another is detrimental to your daily living activities, and will have long-term ill-effects on your health as well as your ability to earn a living. This includes: death; dismemberment; broken bones; disfiguring, scarring and deformity; loss of a fetus; permanent loss of use of a body part; significant limitation of a body part of function; permanent consequential limitation of use of a body part, organ, or function; or, a medically determined injury that prevents you from performing substantially all of your usual daily activities (i.e., work or school) for at least ninety days during the 180 days after the accident.

Fortunately, not all personal injuries fall into that category. But, when an individual does have a viable case, he must continue to follow the advice of his doctor(s), and continue to adhere to the treatment plan(s). By following the advice of your doctor, not only will you build a stronger personal injury case, but you will also allow yourself the opportunity to recover or, at least, to reach your peak performance.

This may become complicated if No-fault automobile insurance physicians decide that you no longer need treatment – something that happens quite often because, as I have said many times, insurance companies are not in business to pay out claims; they are in business to make money for their shareholders. Look at it this way – medical professionals who work for insurance carriers have every incentive to write reports favorable to their “employers.” Favorable means saving them money, and that means paying out less in medical claims.

So, let’s assume that No-fault cuts you off even though you continue to suffer from impairments. If you have a personal injury case in the works, you will need to continue to treat. That means, you may have to use your personal health insurance plan (even if, as sometimes is the case, you have to agree to reimburse your private health insurance out of your settlement proceeds). If you do not have private medical insurance, many times, your health care providers will work something out with you so that you do not go without much-needed medical care.

No Care – Not A Good Option

Often, when No-fault cuts off, too many people just stop treating. This is bad for your health and bad for your case. At the outset – immediately following the injury – you must seek treatment.

That begins with your first trip to the hospital to treat and assess your injuries, and continues until you are fully healed. After treatment in the emergency room, you will be given discharge instructions,” which may include R.I.C.E. (rest, ice, compression-elevation); directions to return to the ER for a follow-up, and following up with your own doctor.

If ER doctors or your own doctor recommends diagnostic testing (x-rays, MRI, CT scan), you need to have these tests. Diagnostic tests help your doctors to make better medical determinations, and to develop a treatment plan that may include physical therapy, surgery, or both.

If, for whatever reason, you stop treating, you not only risk your health, but you also risk losing your personal injury case. Because there are those who would bring baseless personal injury lawsuits, unfortunately, judges, juries and insurance carriers already are skeptical about personal injury claims. Failing to follow sound medical advice merely reinforces their skepticism, and hurts you in court. Lack of money is generally the reason most injuried parties discontinue medical treatment. But, sadly, the courts are not too sympathetic. So, if that is ever the case, remember to discuss it with your attorney who will help you find a way to get the medical treatment you need.

I Have To Trust You & You Have To Trust Me

We are all human beings, and that means that we all have pasts; histories of behavior and histories of events that have had impacts on our lives. As an attorney, I always am conscious of that fact. However, when there is a possibility that you could be involved in a personal injury lawsuit, you must remember that some things in your past will matter. That is why I always urge my clients to disclose pertinent details of their lives to me. Not doing so could have an adverse effect on the resolution of a personal injury case. Unpreparedness can change the outcome of your case – and certainly not for the better.

For instance, several years ago when I was working for another trial attorney, I had a client who had a substantial disability claim – severe lumbar impairment which required two surgeries. She had sworn, under oath, and submitted supporting documentation about her job and how her severe impairments made it impossible for her to continue performing it.

All was going along rather smoothly until just after we had finished jury selection and were about to make opening statements. It was then that the client decided to disclose to me that she had never really held that job, and that someone, other than herself, had been reporting to that job everyday, using my client’s name! This is every plaintiff’s attorney’s worst nightmare.

My opening statement, my strategy, my confidence in the case had begun to fray. What my client had been hiding from me had completely transformed not only the actual case, but also, potentially, the outcome.

Because I had an obligation of confidentiality to my client, I could not share this information with the court. On the other hand, I also had an obligation to the court, and could not allow the client to take the stand and testify to a lie I was aware of. Again, the worst nightmare scenario for any attorney.

Fortunately, for all concerned, I was able to negotiate a settlement. However, it was for significantly less the case was worth had the client been completely forthcoming with me. The settlement meant that she did not have to testify and make any untruthful statements in court. Thinking back, I can only imagine the fiasco that could have ensued had the opposing attorney discovered the full facts of the case. My client’s credibility would have been relentlessly attacked, and justifiably so. After all, when you are caught in one lie, it is not such a stretch to believe you would lie again and again.

On the other hand, had my client just told me the truth, I could have been prepared, planned my strategy differently, and if we had prevailed, she would have been better compensated for her severe injuries.

When you have a prior accident claim or injury, you must tell that to your personal injury attorney representing you. When you have prior criminal convictions, you must share that information with your personal injury attorney. When you have lied about reporting to a job that you do not actually do, you must share that with your personal injury attorney, no matter how embarrassed or nervous you are about doing so. I have to trust you and you have to trust me.

Disclosing all relevant facts, regardless of how uncomfortable it is to do so, allows your personal injury attorney to cull all past medical information from your doctors and compare them to the current medical reports. You are allowed, by law, to claim an exacerbation or aggravation of a preexisting condition, but your attorney must be made aware of that condition in order to build your case accordingly.

Likewise, if you have been having someone other than yourself, report to a job using your name, that is something that you must disclose to your personal injury attorney. He or she must be prepared to defend you against an attack on your character.

If you choose to tell your attorney facts that could have an impact on your case after you already have given sworn testimony, it will be too late. You absolutely will be caught in a lie, and you also put your attorney in an untenable position. Plus, you will call into question any reports from your doctor who, not knowing that you have had prior injuries, writes a report that states your injuries were caused by the recent accident (crucial to your case). Your doctor’s word will be attacked as speculative and incredulous, and quite possibly could be discarded altogether.

Remember that insurance companies will fight your personal injury claims. They are not in business to pay out claims; they are in business to make money for their shareholders. That said, they are big corporations with the ability to search your records with ease. They will definitely search across computer indexes for any and all insurance claims ever filed by you. The information they collect will provide the date of loss; the name of the insurance company you filed against; claim numbers, the facts of the claim; as well as names and contact information of the doctors and lawyers involved.

Furthermore, once you sign authorizations for the release of your medical history, the insurance carrier will be guaranteed to have all past information. Hiding these critical facts, especially from your personal injury attorney is a fool’s errand. Rather, tell your personal injury attorney everything and give him or her the ability to develop the best possible case. Additionally, you do not want to put your attorney in the terrible position of knowing you are not being honest. That is simply wrong.

If You’re Injured, See Your Doctor First

Possibly one of the biggest mistakes a client can make is to rush to see me after an accident, before she has seen her own doctor. It may or may not be just poor judgment, but when it comes to a lawsuit, it just looks bad, and gives the impression that the injured party is far more concerned with financial compensation than with his or her own well-being.

As I have said in my book, injured people seek medical attention. Litigious people, looking to work the system, retain a lawyer first. Then, of course, there are litigious people who are genuinely injured. But, during a deposition or being questioned in a courtroom, when it comes out that the individual first thought to find a personal injury attorney before visiting his or her doctor, it just looks and sounds terrible and is a defense attorney’s fondest dream.

The defense attorney and possibly the jury will wonder just how seriously this person is injured if the first doctor he sees is the one referred to him by his attorney.

If you are injured due to someone else’s negligence, the first thing to do is seek medical attention, obtain a diagnosis, and make sure to follow the doctor’s instructions. After that, seek the assistance of an attorney.