NY PERSONAL INJURY GUIDE: WHAT TO DO AFTER AN ACCIDENT OR OTHER INJURY

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If you or your loved one was injured in a car wreck, motorcycle accident, trucking accident, or slip and fall, this simple guide is for you.

If you were on the job when injured in a wreck or accident, you might have a Workers’ Compensation claim, a “no-fault” claim, and a “third-party” claim against the at-fault party, or all three. Additionally, you may have a claim under your own “uninsured/underinsured motorists’ coverage. This guide explains how all of these claims work.

If you were hurt on the job, in addition to reading this personal injury guide, you should read our guide: NY Workers’ Compensation Laws Made Simple

Priority One: Protecting Life and Limb

The most important consideration after a car wreck is to protect yourself and your loved ones. Check everyone involved for critical injuries and call “911” to get the police and an ambulance on scene.

Don’t move anyone who may have a head or spine injury and call for an ambulance if there are serious lacerations, signs of head or spinal injury, broken bones, or internal bleeding.

Seek medical treatment. Our bodies respond to an emergency, such as an MVA, with a rush of adrenaline and other hormones that can mask an injury.

It is common not to realize we are injured for several hours, days, or even weeks after an MVA. For that reason, if there is any question, it is best to seek emergency medical care right away so that if you are injured, you can get medical attention as soon as possible.

Don’t be afraid to go to the emergency room. Their job is to identify and treat accident injuries. Don’t be embarrassed to ask for an ambulance if you suspect you may be injured. This early documentation can also be crucial later when the insurance companies are trying to minimize or disprove your injuries.

Potential Car Wreck Injuries

• Aggravation of Preexisting Injury
• Lacerations
• Burns
• Orthopedic Injury
• Broken Bones
• Muscle Strain
• Dislocations
• Concussion, Traumatic Brain Injury (TBI)
• Paralysis
• Back Injury/Disk Injury/Paralysis
• Whiplash/Neck Injury
• Shoulder Injury
• Hernia
• Knee Injury/Leg Injury/Foot Injury
• Elbow Injury/Hand Injury/Arm Injury
• PTSD, Stress, and Anxiety
• Amputation
• Death
• The list is endless

Don’t Disturb the Scene of An Accident

In the immediate aftermath of a motor vehicle accident (MVA), you should take care to protect yourself and others from further injury. It’s preferable to leave the vehicles where they are until police arrive, but if necessary, for safety, you can move the vehicles to a safe location.

Put out flares or reflective triangles if possible. If there are signs of fire or you see or smell leaking gasoline, get people away from the vehicles and to a safe place to shelter until police arrive.

Don’t Apologize or Say You Were at Fault

While you should exchange insurance information after a car wreck, don’t apologize or say you caused the collision. There are many factors that go into determining who caused a car, motorcycle, or truck accident.

As they say in the movies: “Anything you say can and will be used against you . . . .” The police may or may not try to determine who was at fault, but their testimony as to fault is inadmissible.

The insurance company adjuster will also try to decide who is at fault, but the insurance company does not have your interests in mind.

Also, in the end, “fault” is determined by a jury (or settled based on what the insurance company thinks a jury would decide). For that reason, an experienced personal injury attorney can best help you determine who is at fault and present the evidence in its best light to the insurance companies. That will maximize your recovery.

Preserve Evidence

The police are very busy, and for that reason, they don’t always do a thorough job of investigating and preserving evidence at the scene of an MVA. For that reason, it may be up to you to document the accident in case you later have an insurance claim.

If it can be safely done, have someone record the scene with photographs. The more photographs, the better. Don’t just get close-up photos of the damage to vehicles, but also some wider view shots showing the point of initial contact between cars, the position of rest of all vehicles, and the location of traffic signals or traffic signs.

Try to get name, address, and telephone number of any potential witness and ask them what they saw or heard. It can be helpful later if you make some notes at the time of the wreck, such as:

• Location of the wreck
• Persons involved (drivers, passengers, witnesses)
• Conditions, such as traffic, traffic markers or traffic warnings, contributing to the collision
• Weather and lighting conditions contributing to the collision
• What witnesses and other drivers and passengers say at the scene

Likewise, keep track of your physical symptoms, even making notes of how your injuries have affected you. When you get medical care, try to get copies of your medical records.

If you miss work because of your injuries, or even to attend doctor’s appointments, keep track of work time lost. All of this will help if you need to hire a personal injury attorney and file an insurance claim.

Contact Your Insurance to Report the Collision

Most insurance policies require that you promptly notify the company of any collisions. Failure to do so can, in extreme cases, let them avoid paying a claim.

Don’t be afraid to notify your carrier about a non-fault accident. In most states, it’s illegal for an insurance company to increase rates for a wreck that is not its insured’s fault.

Determine What Insurance Coverage May Apply

It is important after an MVA to determine what insurance coverage may apply. Depending on the circumstances, any of the following may apply:

• Workers’ compensation (if you were on the job at the time of the collision)
• No-fault insurance
• Liability insurance
• Medical payments insurance (on the auto policy)
• Health insurance (to pay medical bills)
• Uninsured or underinsured motorists’ insurance (UM/UIM)
• Rental car coverage
• Roadside assistance coverage
• Medical Liens
• Collision coverage (for property damage)

Contact an Experienced Auto Injury Doctor

You have an absolute right to choose your treating physicians. You may have to be evaluated by insurance company doctors from time-to-time, but you do not have to submit to their treatment of your injuries.

Once the dust settles and you have returned from the emergency room, you should schedule a consultation with a good New York personal injury doctor. This is because many doctors, such as family doctors, do not know how to treat some of the many injuries associated with a car, motorcycle, or semi-truck accident or slip and fall.

Almost as necessary, your family doctor is unlikely to be experienced with accident insurance and the legal system. You will want to see a doctor who is experienced in dealing with insurance and the legal system because he or she will be best able to protect your rights from overreaching insurance adjusters. You also need to find a doctor who accepts no-fault insurance, otherwise, you may be stuck paying for medical bills.

An experienced auto injury doctor knows how to evaluate and document your injury claims in a way that satisfies the insurance company requirements to maximize the value of your claim. Most importantly, a good personal injury doctor has extensive experience treating auto accident injuries and will be able to provide proper medical care in order to get you on the road to recovery.

Getting and Paying for Medical Treatment After An Accident

Believe it or not, it can be hard to get medical treatment after an MVA, even if you have health insurance or Medicare or Medicaid. Many doctors do not like to get involved in treating accident victims. Some think health insurance will not pay (not true), many do not want to deal with other insurance coverages such as no-fault, medpay, liability, or UM/UIM, while others just do not want to have to write narrative reports of testifying at a trial.

This is another reason to find an experienced personal injury doctor. He or she will know how to get your treatment paid through health insurance, no-fault coverage, medpay, UM/UIM, or liability coverage. Or, he or she can provide the needed treatment and get paid on the “back-end” by filing a lien against any recovery from an insurance company.

Contact a Good New York Personal Injury Lawyer

Unfortunately, insurance companies don’t usually treat unrepresented parties fairly. Because of that, you are almost always better off hiring an attorney to represent you in your claim against the other driver’s insurance company.

You don’t have to pay your attorney out of your pocket. Your personal injury attorney gets paid out of any money they recover on your behalf from the insurance companies. Most often, they are paid a percentage of what they recover.

Your experienced personal injury lawyer knows how the insurance “game” is played. He or she has seen all the insurance company tricks and knows how to find the things the insurance company wants to hide.

Also, the more money your attorney collects for you, the more money he or she will make. That means your attorney wants to maximize your claim. The insurance company, on the other hand, wants to pay as little as possible.

Property Damage Claim

Even though you will most likely need an attorney to handle your bodily injury claim, there is a good chance you can negotiate the property damage claim without representation. There just isn’t as much to argue about on the typical property damage claim.

If your car is totaled, you are entitled to the “fair market value” of the vehicle in its “before-crash” condition. That is usually something close to NADA or Kelly Bluebook “retail.” You are also entitled to sales tax and registration fees. If your car is not totaled, you are entitled to the cost of repairs. For more information on negotiating your property damage claim, see “Damage to Your Car”.

“Person Injury” Claims and “Bodily Injury” Claims

In addition to possible property damage claims, if you or someone you care about is hurt (or killed) these are called “personal injury” claims, which are further broken into “economic loss” and “bodily injury” loss.

Personal injury claims include “damages” for some or all of the following kinds of claims:

Economic Loss:

• Past and future medical bills
• Past and future lost wages (you missed work directly because of the injury)
• Impairment of earning capacity (you can’t do the same kind of work or make the same pay because of the injury)

Bodily Injury Loss

• Past and future pain and suffering
• Past and future emotional distress
• Psychological injury (a more extreme form of emotional distress)
• Permanent disability or impairment

If you are hurt in an MVA or slip and fall, you will have some or all of the above damages.

Your personal injury lawyer will help you identify both the categories of damage and the amount of damage you have suffered. Your personal injury doctor will help your attorney identify your injuries and how they have and will affect you in the future.

No-Fault and Liability Claims

New York is a “no-fault” state, meaning claims are paid under the injured part’s own coverage without respect to a fault.

These no-fault claims are limited to “economic damages,” meaning medical bills and lost wages. No-fault does not pay for non-economic damages such as pain and suffering and emotional distress.

If you exhaust your no-fault coverage or you have a claim for “serious” injury as defined in the no-fault statutes, you can make a claim under the at-fault driver’s liability coverage (or under your own uninsured/underinsured motorists’ coverage (see next section below).

Uninsured and Underinsured Motorists’ Insurance

We all have heard about all the uninsured drivers out there. What we don’t hear as much about are those who only carry the minimum limits required by their home state. In New York, those limits are $25,000 per person for injury and $50,000 for death, doubling to $50,000 and $100,000 if more than one person is injured or killed. See our article explaining New York No-Fault Coverage (and getting out of the no-fault limits), here.

What if your “damages” are more than $25,000? This is where “underinsured motorists’ coverage” comes into play (underinsured motorists’ coverage is an optional coverage, so you must request this coverage from your insurance agent).

Suppose you are badly hurt in a car wreck caused by a driver with only minimum limits. Say your medical bills are $50,000 (a trip to the ER after a wreck can quickly generate a $50,000 ER bill) and you have a permanent injury such as a herniated disc.

Suppose you also have to miss a couple of months’ work as a result of your injuries (or worse, can never work again). You can see, state-mandated $25,000 minimum limits don’t really do you any good.

But if you have $100,000, 200,000, 300,000 or more in underinsured motorists’ coverage, that coverage will kick in to pay your damages above the state limit. Any personal injury attorney will tell you uninsured/underinsured motorists’ insurance (UM/UIM) is one of the most important insurance coverages you can buy.

Beware: many insurance agents will tell their customers UM/UIM is unnecessary if you have health insurance or medical payments coverage (on your auto policy). Don’t let them talk you out of UM/UIM! UM/UIM doesn’t just pay your medical bills. It pays that, plus for lost wages, pain and suffering, emotional distress, and for permanent disability. Buy as much UM/UIM as you can afford.

How Much is My Claim Worth?

Many people assume a particular injury is “worth” a set amount of money. That’s not really the case. The claim’s value is not just driven by the type of injury, but also by a host of factors that most people would not think about:

• Was there a particularly painful injury?
• Was the injury “hard” injury or soft tissue?
• Was there a delay in seeking treatment or a gap in medical treatment?
• Was there a full recovery?
• Is there permanent disability, scarring, or loss of mobility?
• Were there prior injuries (prior injuries can increase or decrease claim value, depending)?
• Is liability (or responsibility) “aggravated” or “simple?”
• How much were medical bills?
• Were most of the medical bills for treatment or only diagnosis?
• Were medical bills paid by health insurance?
• Is there emotional distress?
• Where there any tickets issued?
• Was the injured person, or a third person, also responsible for the collision?
• Are there good (or bad) non-biased witnesses?
• Did either party have prior criminal convictions (that a jury would hear about at trial)?
• Does the injured party have other losses or damages, such as a wage loss claim?
• Does the at-fault driver have “baggage” that will be given consideration by the jury?
• Does the injured person have “baggage” that will be given consideration by the jury?
• How sympathetic are the various parties?

On top of all of the above, you have to consider how much insurance coverage is available. Unfortunately, where there are significant damages, there often is not enough coverage to pay the entire claim.

For instance, if you have a serious, permanent injury, $100,000 in medical bills and $50,000 in wage loss, but there is only a total of $25,000 in insurance coverage, which is probably the “value” of your claim.

Your personal injury attorney is in the best position to evaluate how each of the above facts, and any others, factors into deciding claim value.

Filing an Insurance Claim

Your lawyer, or you, if you opt to handle your own claim, will file a claim with one or more of the following insurance carriers depending on the circumstances:

• No-fault
• Liability
• UM/UIM
• Workers’ Compensation

As your lawyer gathers records, he or she will send those records to the insurance company. These records may include any of the following:

• Medical bills and treatment records
• Medical “narrative reports.”
• Lost wage or income documentation
• Police and accident reports
• Scene photographs and diagrams
• Applicable laws and regulations
• Investigatory reports on the at-fault driver
• Expert reports

Once your attorney gathers and sends all the documentation, he or she will usually send a “demand letter” that sets out all of the important facts as well as a summary of how each fact should result in a higher payment to you, the injured party. Your attorney will end the demand letter with a specific dollar amount.

Be aware; the initial dollar amount demand may be a shockingly high amount. Don’t expect that the insurance company to pay that or something close to it. The initial demand is simply to get the insurance company to the negotiating table (or telephone).

Your personal injury attorney has seen hundreds of claims like yours and has heard about or read about thousands more. They will see and understand both the strong points of your claim, but also the weak points.

Listen to your attorney. He or she really is the only part of the system that is personally invested in the success of your claim. That is because most often, your attorney will get a percentage of what he or she recovers on your behalf. For that reason, it is best to listen to your attorney’s advice about when to settle or not settle.

Filing A Lawsuit

If your claim is not resolved with the insurance company, or if your attorney thinks at the beginning, it is not likely to settle with the insurance company, your attorney will file a lawsuit.

Most people don’t understand that you can’t sue the at-fault party’s insurance company directly. You have to sue the driver instead. But rest assured, the driver is not going to lose his or her house, or anything else. The driver’s insurance company will pay for attorneys to defend the claim, and they will pay for any settlement or judgment.

If your claim is against your own insurance, for instance, a UM/UIM claim and a lawsuit is necessary, that lawsuit will be against the insurance company directly.

Once a lawsuit is filed, get ready to learn patience. It can take several months just to get a schedule from the courts. That schedule will then set the deadlines that control your case.

Be sure to give your attorneys as much information as possible. And be truthful. Your attorney can often lessen the sting of negative information if you tell him or her about it soon enough.

Don’t be shy or embarrassed about anything you say, your attorney. Your attorney won’t judge you but will decide how best to handle whatever facts come his or her way.

Be truthful during the discovery process, with your answers to written questions, and with your answers in your deposition if you have one.

Many of the things the other side will ask you about in discovery will be inadmissible (not told to the jury) at trial—if you have been truthful in your answer. If you are untruthful, you may make something admissible that otherwise would have been inadmissible.

Again, as with the demand to the insurance company, listen to your attorney when he or she tells you it is time to settle your lawsuit. Yet, they have seen it all. Your attorney is in the best position to evaluate not only the good parts about your case but the bad as well. He or she will take into consideration each fact and inference and potential jury response.

You don’t have to accept your attorney’s settlement recommendation—that is always for the client to decide—but most of the time, you will be better off having taken your attorney’s settlement advice.

Your Deposition

If a lawsuit is filed, you will likely, at some point be asked to give a deposition. Your lawyer will instruct you on the particulars for your deposition, but you should be aware of some general rules:

• Your deposition can only be used by the other side. Your lawyer can’t read from your deposition at trial (except under limited circumstances), but the other side can. For that reason, you need to know the deposition is not really the time for you to “tell your story.” Instead, you should say as little as possible at your deposition (unless your lawyer tells you to elaborate on certain topics). Because the deposition can only be used against you, your lawyer probably will not even ask you any questions at your deposition.

• Tell the truth, but in as few words as possible. Listen to the question asked and answer only the precise question asked. Then wait for the next question. Try to keep your answer to “yes” or “not” or to no more than a sentence or two. When you ramble, you say more than you should and that gives the insurance company ammunition to use against you. Again, remember, the deposition cannot be used by you at trial but is only for the use of your opponent.

• Don’t hide from embarrassing topics. Just because a question is asked at your deposition does not mean the jury will ever hear the question or the answer. This is because the discovery rules are broader than the rules of “admissible evidence.” That means much of what is discussed in a deposition will never be heard by the jury—unless you lie about the answer, and then the jury may hear about the lie.

IME or “Independent Medical Examination”

If you have an injury claim, whether it is a workers’ compensation claim, a no-fault claim, or a liability claim (that is in a lawsuit), you may be sent for an “Independent Medical Examination” or IME. There is nothing “independent” about these exams. The sole purpose is to help the insurance company to pay as little as possible on your claim.

There are a variety of tricks the insurance companies use to reduce your claim through an IME. The most basic “trick” is to use only IME doctors who are very “conservative” in their injury evaluations.

The insurance companies know who those doctors are, and those doctors know they will only be hired for future IMEs if they minimize your injuries. You can see by its nature that the system is designed to minimize your claim.

The insurance companies know their IME doctors will minimize your recovery by saying:

• You are not really hurt
• You are not hurt as bad as you say
• Your injuries were preexisting
• You’re “malingering.”
• You’re ready to go back to work before you are fully recovered

The IME may be required, but fortunately, your personal injury lawyer knows these tricks as well. He or she knows how to protect you in the IME.

Subrogation Claims

If someone pays a claim for injuries that are caused by someone else, the party paying the claim has a right to collect those payments from the at-fault party or from you (if you also make a recovery from the at-fault party).

Subrogation claims that arise in the typical injury claim can include the following:

• If your health insurance (Medicare, Medicaid, private, or employer-provided) pays medical bills, the insurance company is entitled to be repaid some of all of what it has paid on your medical bills.
• If you have a claim that is paid under workers’ compensation laws, your company, or its workers’ compensation carrier, has a right to be repaid from recovery against the at-fault party, but not from your no-fault coverage or your UM/UIM coverage.
• If you have a claim that is paid by your no-fault coverage or your UM/UIM, those insurance companies may, in some circumstances, have a right to be repaid from your recovery from your third-party recovery

Part of what your experienced personal injury attorney will do is identify legitimate subrogation claims and attempt to negotiate reductions with those who claim a subrogation interest.

These negotiated reductions put more of the recovery in your pocket rather than back into the insurance companies’ pockets.

Don’t Delay, Call Now!

It should be apparent from reading this guide, but don’t delay. If you or a loved one gets injured in a car, truck, motorcycle or other accident, or a fall at a business, it is vital that you take steps right away to protect both your (or their) health and legal rights:

• Seek emergency treatment
• Preserve/record the evidence
• Find a personal injury doctor for ongoing treatment
• Talk to an experienced personal injury attorney

While no one ever wants to end up the victim of a car wreck or slip and fall injury, there is much you can do to make sure you come out okay. You have taken a start down that path by reading this guide. Also remember we’re on your side and here for you.

Call us 1-800-897-8440 to find an experienced personal injury doctor or to get more information about how to protect your health and your rights.

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