Will the Insurance Company Have Access to My Past and Present Medical History and Treatments? Could Any of That Information Hurt My Case?
Although your medical conditions and medical records are normally deemed under the law to be privileged, or confidential, and protected from review by outside parties, the bringing of a personal injury claim makes your medical condition relevant. As a result, you are deemed to have waived that privilege to the extent of the injuries you claim. Anything in your medical history that could impact the conditions and injuries that you claim can also then be discoverable by the other side. This is for a couple of reasons. First, the scope of discovery before trial is broader than the scope of admissibility in trial. The courts will allow an opposing party to look into things even if they are not relevant if they are reasonably calculated to lead them to other, discoverable evidence. Second, the other side gets to challenge your claims caused the injuries you are claiming. The existence of preexisting conditions and other medical causes for your complaints may become relevant in that way. Each case is different, and the scope of what’s discovered should be carefully monitored by your attorney.
It’s very common that the other side will get to obtain prior medical records to make sure that you didn’t already have a history of the very injuries that you’re complaining of. Many times, there are going to be underlying medical complaints and treatments that look like the injuries being complained of from the crash. While the law does allow the other insurance company to explore those things to determine whether a reasonable doctor may differ on whether they were caused by the crash or were already there, there are some medical issues that clearly can be deemed unrelated and irrelevant to the current claims. In those cases, the client needs to tell the attorney about those in advance so that we can offer up an objection and prevent those from being discovered. Examples might be mental health treatment or sexual issues, things that generally are going to be unrelated to a broken arm or a knee replacement.
Therefore, while you will be deemed to have waived the medical privilege to some extent, not everything should automatically be discoverable by the other side. This situation requires that you be very open with your attorney about who all of your providers are and what treatments you’ve received. Also, sign an authorization so your attorney can get the past several years of treatment and examine that for themself.
I Was Hit by an Uninsured or Underinsured Driver in Indiana. Do I Have Any Chance of Recovering Financially for My Injuries?
It depends. There are really only two sources of payment when you get injured by someone else’s negligence. It either comes from the liable party’s personal assets or from some source of insurance—that insurance hopefully will be carried by the party that was involved in the accident. If that party is uninsured or carries minimal liability limits, you might have uninsured or underinsured motorist coverage that will make up for what insurance they don’t have.
The other option is the liable party might have assets you can go after, but typically, people with substantial enough assets to go after also have the money and responsibility that goes along with maintaining their insurance at adequate limits. If the other side doesn’t have insurance, they’re probably not going to have assets you can pursue, which means you’ll have to look to your own insurance company or companies to see if you have uninsured motorist coverage, underinsured motorist coverage, or some umbrella coverage that may be able to compensate you for your injuries.
In those cases, you are making a claim against your own insurance company, but that’s why you have that type of insurance—in recognition that there are irresponsible parties out there who don’t carry their own insurance.
How Long After a Car Accident Do I Have to File a Personal Injury Claim in Indiana?
Filing a claim with the other insurance company should be done immediately. Under the law, there is a two-year statute of limitations in which to bring a lawsuit against the other side. If you don’t settle your claim with the insurance company, you will need to file a lawsuit within two years of the date of the accident, or you will forever be barred from recovery.
If It’s Clear the Other Driver Was at Fault in a Car Wreck Where I Was Injured, Do I Still Need to Hire an Indiana Personal Injury Attorney to Represent Me in My Car Accident Case?
This goes back to the two main issues that need to be addressed with the fault and extent of damages. Even if the other side admits fault and their insurance company agrees that they’re 100% at fault, it’s the damages where the contention is going to lie.
The insurance company will have competing duties that you have to recognize. While it has a legal duty under its contract with its driver and under the law to make payment on claims for which its policy holder is legally liable, that same insurance company also has a business duty to its shareholders or its policy holders, depending on whether it’s a stock company or a mutual company, to minimize what it pays out in claims so as to maximize profits. When a company admits fault and offers to pay, you can pretty much bet that what they offer will definitely not be what the case is worth and probably won’t even be the full amount of what they themselves think the case is worth. That’s why hiring an attorney to help you evaluate the value of your case is just as important as when fault is in issue. In fact, I would say in at least half of the cases that we handle, fault is not an issue; the sole issue is arguing over damages.
So, that’s at the outset of the case. You might not hear this talked about in legal advertisements, but arriving at a case’s value is just the first part. On the back end of the case, there are going to be liens and unpaid medical expenses that have to be negotiated and dealt with. Unfortunately, after payment of all the expenses, costs, fees, liens, and outstanding bills, the gross settlement amount often bears little resemblance to what the client ultimately puts in their pocket.
The attorney’s job isn’t just at the front end; it also involves helping to negotiate with all of the stakeholders in the settlement to make sure that the amount leftover that the client puts in their pocket for future issues and ongoing care is as much as possible. In our firm, we start evaluating every settlement offer and demand that gets made with an assessment of what the net amount will be that the client gets to put in their pocket.
In some really small cases with minimal injury and treatment, it may be that settling without an attorney will result in a better outcome, meaning more money in their pocket than if they had an attorney. That’s an issue that you can feel free to ask your attorney about.
Many firms like ours offer to assist clients in those really small cases with minimal treatment and no ongoing or lingering permanent issues for a small fee to help them evaluate the case and advise them in settling with the insurance company. If we meet with our client for the first time and it’s clear that the injured party has no permanent injuries and is fully recovered with minimal damages, we’re likely to suggest something other than a full retention under a contingency fee. Our firm’s goal is to give our clients the best advice and representation possible so as to put them in the best position possible; and sometimes that means something less than full representation.
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