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Should be Asked Questions

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Should be Asked Questions

In addition to the Frequently Asked Questions that potential clients ask us, there are also what I call “should be asked Questions” which client’s should ask about in every case. I’ll put them in this section as I think of them.

Q.  Does the attorney take a fee on my car repair or on my Medpay payments I receive from my own insurance?

A. No reputable attorney that I know, would take a fee on the auto property damage recovery under comprehensive or collision insurance and in most cases (unless litigation is needed to collect your medpay benefits) no reputable attorney would take a fee on your medical payments coverage. To be certain, ask the potential attorney if he is going to take a fee on these 2 areas.

Q. How long will me case take to resolve?

A. Every case has different time limits, and the most important issue with regard to when cases resolve is whether the injured party is medically stable. With a relatively minor injury such as a back or neck strain, the injury may become stable in 2 or 3 months. Occasionally, however, what looks like a minor injury, may later require epidural injections, burning of a nerve to stop pain (called radio-frequency ablations) or even an artificial disc replacement. As you might expect, a complicated injury case may take months or even a few years to resolve and become stable.

In addition to the stability of the injury, the reasonableness of the insurer (or lack thereof) is another major issue in how long the case takes to resolve.

Our offices move every case forward because we know that justice delayed is justice denied.


Q. Do I need a Tough Guy in order to get a good  settlement from the other insurance company.

A. There are many attorney’s that pose as “Tough guys” and talk about how tough they are. Funny thing, if you look at their web site, they don’t seem to have verdicts and settlements to support it.

Here are some of the verdicts and settlements on my site. It doesn’t mean I can do the same for you, as every case is different.

It does show, however, that we have the capability to achieve a good verdict or settlement and you should be looking for that.

So, do you need to hire a “Tough guy”. No, you don’t. You need to hire an experienced personal injury attorney who is pleasant to you, capable, and will be seen that way by a jury as well.

Q. I have Kaiser as my health plan? Should I use Kaiser for medical care?

There are many drawbacks in utilizing Kaiser for your medical care after an accident  As en Experienced Sacramento and Elk Grove Attorney, I feel I need to explain them to you so that you Can make an informed decision.
Some of my clients feel they should use Kaiser coverage because it is already paid for and therefore they will not have to pay medical bills at the end of their case. This is incorrect. Almost all Master Kaiser Agreements with employers specify in fine print that any patient utilizing Kaiser who was involved in an auto or other motor vehicle accident must pay Kaiser back at the end of the lawsuit.
Most of the time, clients also have Medpay coverage on their auto insurance. Typically,  medpay insurance pays for any and all care for injuries up to either 1 year or 3 years after an accident. Additionally, many of these policies have
Zero payback provisions so there is no money owed even after the medpay coverage is used up. If you are unsure if you have Medpay insurance on your auto, just call your agent and find out.

If you do have medpay, you can use it to go to the best MD or chiropractor in town and the medpay will pay the bills.
Even if there is a medpay reimbursement clause, you are essentially in the same position selecting a private Dr as you are in using Kaiser coverage. You will need to repay both at the end of the case, but using Medpay coverage
Gives you the opportunity to find a highly rated doctor.
Now I’m not stating that all Kaiser Drs are bad, some of them are very good. I have found, however, that proceeding thru care with Kaiser can wind up hurting your case.
Here’s why:
Kaiser seems to have an institutional bias about helping their patients that are involved in an accident proceed with their lawsuit.
Many times, our office has ordered Kaiser medical records and only a partial and not the entire medical file is provided. We then must order the missing records again which delays the case, often by several months.
Additionally, Kaiser in Northern California seems to have a prohibition in allowing treating Drs to meet with your attorney in order to discuss your past history, prospects for recovery and any future treatment. On every significant  case, it’s critical for the injured party’s attorney to meet with the treating Doctor to discuss the above issues. Without doing so, it’s very difficult to properly evaluate the value of a clients injury case.
Even if you are treating well medically by the Kaiser doctor involved, you can essentially be thrown to the dogs in terms of your financial future. Again, without meeting with the treating Doctor ahead of time, its extremely difficult to evaluate or even put on the case.
Suppose, for example, the case goes to trial. The attorney has been unable to meet with the Kaiser Doctor until the day he or she is on the stand as a witness. The doctor is then asked, “Doctor, with reasonably medical probability did the accident of 4/11/14 cause the shoulder surgery that this patient later had. “
Often, the doctor will say he can’t really say that because he doesn’t understand the legal term “reasonable probability”. He confuses the legal term as its used in the courtroom with the scientific terminology and he’ll say something like,
“well, it could have causes it” or words to that effect. Typically, that is not enough to allow you to succeed in your legal case.
So even if the Kaiser Doctor has done well for you medically, your family’s financial future may be severely damaged.
Every case is different. The above are just some of the considerations that the client and attorney should discuss before proceeding with Kaiser care.

Q. Should a Sacramento injury lawyer take a fee on money collected for my property damage in an accident?
A. Although there are cases where it might be proper to do so, it would be very rare for an injury lawyer to take a percentage of your property damage claim. In most accidents, the person at fault is apparent from the police report. Even if that is not the case, the injury attorney makes most of his fee from the personal injury claim. Taking a fee on the property damage puts the client in a very bad position.

If the property damage is $10,000 and 1/3 is paid to the injury lawyer, then the client is immediately in the hole.
Reputable attorney’s do their best to help their clients recover from their losses and would not do this except in very extreme cases. If you’re attorney is asking for a fee on property damage he recovers for you, it would be prudent to ask for another experienced personal injury lawyers opinion.

Q. Is it proper for a personal injury lawyer to take a fee on medpay auto insurance collected from client’s own auto insurance?

A. Although it may be technically possible, depending on the terms of the retainer agreement between attorney and client, I know of no honest attorney who would take a fee on this portion of the recovery unless the attorney needed to litigate the issue with the client’s insurance company.
The reason is that medpay  insurance is a benefit that the client already paid for before he came to see the attorney. Having already purchased the insurance, it’s a benefit that client should obtain automatically from the company. If your attorney is seeking to take a fee on medpay benefits, this should serve as a warning that you might want to consult with another personal injury attorney.

Q. Is it important that my attorney meet with my treating doctors?

A. In some smaller cases it may not be necessary. However, it is critical in every serious case. Doctors and Attorneys sometimes live in a world with different languages.

If a doctor is asked at a deposition whether an accident caused an injury, the attorney must educate him that the concept ” cause” used in the courtroom is not the same as etiology or the scientific concepts doctors have been trained in the rule in or rule out various pathologies.

The doctor may also need to educate the attorney on how and if prior seemingly unrelated diseases that the patient has can complicate or even exacerbate the normal healing process.

If the case is one going to trial, the attorney needs to gauge if the doctor is a good educator who can explain to a lay jury clearly exactly how the clients injury is affecting their life, the “cause” of the injury.. And the future likely progression.

If the doctor is not good at articulating these issues, the attorney must know in a timely manner so he or she has time to hire a doctor better at explaining the issues before a jury.

So, yes, in almost every serious case, the injured party’s attorney should reach out to and meet with a patients treating doctor.

Q.  I went to Kaiser Hospital after A serious accident and now find out that my Kaiser Doctor won’t relate the accident to my injury and therefore I am unable to recover damages. Should my attorney have warned me
Against seeing this doctor?

A. A very good question and many attorney’s may differ but I believe an injured party’s attorney has an absolute duty to his client to warn them that a doctor may well help them heal physically but can devastate their

Case financially.  Over the course of years in a personal injury practice, attorneys become very familiar with the doctors that are good, bad  or indifferent. I believe that every attorney handling a significant

Personal injury case should give his client the benefit of what he or she has learned over the years.

If a doctor is very conservative and the attorney knows that, he should share that knowledge with the client.

IF a doctor is a good doctor but is reluctant to testify and avoids the courtroom, the attorney needs to let the client know that as well.  Sometimes institutions, like Kaiser, make it very difficult for attorneys representing injured parties to do their job. They refuse to meet with the injured parties attorney, are reluctant to testify in court and fail to thoroughly review the patients past history, all of which makes it difficult to win in court.

Q. If I file a personal injury lawsuit in California, do I waive all my rights to privacy?

A. No, you do not. Be careful, however, to select a personal injury lawyer who is aggressive in protecting your privacy rights. Here are some ways the issue may arise.

You and your spouse file a lawsuit and a count for loss of consortium is included. What loss of consortium means is that the marital relationship is injured in some way.

It’s fair game for an insurance attorney to ask if the sexual relationship with your husband of wife has been interfered with in some way, and perhaps if the frequency of your sexual relations has changed, that’s about as far as your attorney should allow the insurance attorney to go.

All too often, insurance attorney’s have really tried to embarrass injured parties by asking “have you tried different positions” and even more embarrassing questions. If you have an experienced injury lawyer, he or she will not allow such intrusive probing. It is not relevant and most reasonable judges will not permit such probing.

Another way that an injured person’s privacy can be invaded is when an insurance attorney subpoenas “any and all medical records” for 20 years back. Perhaps you filed suit trying to recover for a fractured leg? How then are records dealing with your sexual history or treatment some 20 years or even 1 day earlier relevant? Well the obvious answer is they are not.

Nonetheless, its surprising how many attorney’s allow the defense to get away with this overbroad subpoena.

An experienced California injury lawyer will file an objection as “overbroad and invasive of privacy”. California caselaw including the case of Brittt v Superior Court will protect your rights of privacy so long as your attorney objects in a timely fashion.

Q. What is a “lien” and do I have to repay it out of my personal injury settlement or judgment?

A. A lien, essentially is an obligation to repay someone (usually a medical facility) after a personal injury case is resolved. Liens can be because someone signs a piece of paper agreeing to pay the provider, or they can be imposed by law without signing anything.

In many cases, the injured party has no medical insurance and can only obtain medical treatment by signing a lien agreeing to pay the doctor or other medical provider at the conclusion of the case.

Sometimes, people have Kaiser or Blue Cross coverage and believe that all they need to pay is their co-pay and nothing else. Unfortunately, both Kaiser and Blue Cross put language into most of their

Contracts with either the injured party or often the injured party’s employer stating that at the end of the case they are to generate a billing and then the patient must repay them out of the settlement.

This is pretty sneaky, but courts in most cases allow them to do this. An experienced attorney can usually find ways to negotiate down the repayment of these medical liens, but cannot just ignore them or refuse to pay them.

Other common liens are Medicare or Medi-Cal liens and they are imposed by law.  Any Medi-Cal patient or Medicare patient that suffers personal injury, needs to repay Medicare or Medi-Cal out of the payment they receive from a third party.

Again, an experienced attorney can sometimes greatly reduce or even in some circumstances eliminate these liens.