What to do Immediatly After a Car Accident
Stage 1. Diagnosis, Treatment, Prognosis
Stage 2. Settlement Discussions
Stage 3. Lawsuit
A common question asked to personal injury lawyers is “Do I have a claim?” Under Florida law, a party seeking to bring an injury claim must be able answer the following three questions: (A) whose fault was the accident? (B) was the accident the legal cause of the individual’s injuries? and (C) what are the nature and extent of these accident related injuries?
There are three stages to a claim[1]. These stages are outlined below:
Stage 1- Diagnosis, Treatment, Prognosis.
Your primary goal during this stage is to receive proper diagnosis and treatment for any injuries you sustained as a result of the accident. Seek medical care as soon as possible. Studies have shown that patients who receive timely and appropriate medical care for a traumatic injury have a better chance of making a full recovery than those who delay treatment.
Most people injured in a motor vehicle accident will go to an emergency room within 24 hours of the accident. Unless the patient has a catastrophic or potentially catastrophic injury, the emergency room will release the patient after taking a few x-rays with instructions to follow up with a specialist. Please do follow up with a specialist, or, at the very least, consult with a family doctor following the visit to the ER. Any injury can impact the way that we live our lives, do our jobs, and interact with our families. The sooner that your injury can be properly diagnosed and treated then the better your chances of making a full recovery.
Stage One continues until you have reached what the doctors call Maximum Medical Improvement. This means that either you have fully recovered from the injury or that your medical condition has stabilized to the point that no major change can be expected in your condition. At this point the doctors should have a good understanding of your prognosis.
One common question asked by individuals involved in an accident is who pays for all of this medical treatment? If the injury is the result of a car accident, then the patients’ own car insurance policy will pay for 80% of the patient’s treatment.[2] This insurance benefit, called Personal Injury Protection or no fault benefit, must be carried by all Florida drivers and will pay up to $10,000 towards medical bills. Any remaining bills will initially be paid by health insurance, Medicaid or Medicare. However, ultimately, the party who caused the accident [3] will be responsible for all past and future medical bills.
Another common concern is the loss of earnings resulting from the inability to work while recovering from a particularly serious injury. Once again, if the injury is the result of a car accident then the injured party’s own car insurance will help to initially defray these losses. Personal Injury Protection benefit will cover 60% of lost wages up to $10,000. Disability Insurance policies may also cover some or all of these lost earnings. If the injury was not the result of a car accident then your lost earnings may be initially defrayed by your own disability insurance policy. Ultimately, the party who caused the accident will be responsible to compensate you for all of your lost earnings both past and future.
Stage 2- Settlement Discussions.
In Florida, our civil justice system does not typically punish the at fault party. Punishment is generally left to the criminal court systems. In civil court, we look to injured party in order to provide full and fair compensation. The general rule is that the more injured you are, the more economic compensation you are entitled to but the less that this compensation will actually help you. For example, an individual who is paralyzed as a result of an accident will be entitled to a great deal of financial compensation. However, the individual would gladly give all of this compensation back just be able to walk again. No amount of money will ever really compensate an individual for the loss of the ability to walk.
The law breaks down compensation into economic damage and non economic damages. Economic damages include medical bills (past and future) lost wages (past and future) as well as prescription medications, medical devices, and other similar expenses that have either been incurred or in all likelihood will be incurred in the future as a result of the accident.
After the injured party has completed treatment, and received a prognosis, the lawyer will have a better understanding of the claim’s “settlement value”. The lawyer will gather all medical records and bills related to the treatment as well as obtain information regarding any past and anticipated lost earnings associated with the accident. This information, along with a demand letter from the attorney will be sent to the insurance adjuster for driver who caused the accident. After about thirty days the adjuster will respond to this demand packet with a settlement offer. No matter the amount of the offer, the lawyer cannot either accept or reject the offer. Instead, the attorney must convey this information to the client. The lawyer will give his advice to the client, but the final decision regarding settlement rest with the client.
Most of the time the insurance company’s initial offer will be rejected by the client and the lawyer will then continue negotiations. This process will continue until the claim settles or it appears that the claim cannot be settled and a law suit must be filed.
Three out of four claims can be settled without the need to file a lawsuit. For those claims that cannot be settled, a lawsuit must be filed before the statute of limitations expires. Failure to file suit before this deadline will result in the claim being forever barred. Once a lawsuit is filed, it will typically take three years before the case can be scheduled for a jury trial. During the course of the lawsuit, the injured party will give deposition testimony (answering questions while under oath), and may undergo an examination by a doctor of the opposition’s choosing.
Most judges will also require that the injured party and the individual who cause the accident go through “mediation”, which is a formal settlement conference, to give negotiations one last chance. More often than not a civil case will settle without the need to take the matter to a jury trial. However, the client, not the lawyer will make the final decision regarding settlement. The lawyer will give advice, but the final decision is always left to the client.
Those cases that cannot be settled through mediation will be tried in front a jury. Normally, these trials take less than a week. At the end of the trial, the jury will render a verdict determining whose fault was the accident, did the accident cause an injury, and the compensable value of that injury.
[1] If you were injured on the job then your most likely procedure is the file a worker’s compensation claim, which is different in many aspects from the procedure detailed below.
[2] If the injury is not the result of a car accident then the injured party will need to use their own health insurance to cover the treatment.
[3] The legal term for this at fault party is “Tortfeasor”.
What to do Immediately After a Car Accident
1. Stop the car
3. Assess the condition of your passenger(s)
4. Call 911
5. Follow the directions of the 911 operator
7. Call your insurance company
8. Take photographs of the scene and of the vehicles involved
9. Cooperate with the investigating officer
10. Go and see a health care professional
Note –Some criminals have used a minor fender bender to lure their victims out of their vehicle. If you feel unsafe or unsure of your safety then stay locked on your car with your engine running and immediate call 911 and tell them your situation. Stay on the line with the 911 operator until help arrives.
Assuming that you feel that the car accident was not a pretext for a crime then take the following steps if you are physically capable:
1. Stop the car! – this instruction seems obvious but in the stress of the moment some people leave the scene for a variety of reasons. It is a felony to leave the scene of an accident where someone has been injured. It is a misdemeanor to leave the scene of a car accident where there is property damage, including damage to the vehicles.If the other driver leaves the scene, let them go, try to see the other vehicle’s tag number and if possible a description of the vehicle and its occupants, but do not chase the vehicle.
2. Assess your own condition – Try to determine if you feel injured or disoriented before doing anything else. Unless you are worried that car is about to catch fire do not be in a hurry to exit your vehicle. Remember that the stress of the being involved in an accident can release adrenalin and that this may mask the symptoms of an injury. Further, certain types of injuries, especially spinal injuries, can be aggravated by moving. Also, if you have suffered an injury to your head or to your lower limbs, then exiting your vehicle and moving around may make you susceptible to falling.
3. Assess the condition of your passenger(s) – Check on your passenger’s. Again, unless the car is about to catch fire or to explode, encourage your passengers to remain in the car. You are going to be at the scene for a while; there is no need to rush out of the car, and a lot of valid reasons to stay in the vehicle.
4. Call 911 – Call 911 and identify yourself and your location. Tell them that you have been involved in an accident and state whether either you or your passenger(s) need an ambulance. If in doubt request an ambulance. Do not let financial concerns keep you from requesting an ambulance. All Florida drivers are required to carry a no-fault insurance benefit called Personal Injury Protection that will pay for 80% of all accident related medical expenses. If you are carrying the legally required car insurance then the ambulance ride and the ER visit will be covered.
5. Follow the directions of the 911 operator – The 911 operator is trained in handling emergency situations and will give you directions regarding moving your vehicle and similar concerns.
6. Take down information – Most of the time, bystanders will stop to check on persons involved in an accident. Try to get these bystander’s names and contact information. Sometimes the bystanders actually witnessed the accident and as a result may have information that will help you in any legal claims that result from the accident. Do not expect the responding law enforcement officer to get the bystander’s information. Many times these bystanders will leave before the officer arrives. Also, if possible take down the information of the other driver, including:
a) his or her full legal name;
b) contact information;
c) driver’s license number;
d) car insurance company;
e) insurance policy number;
f) license plate;
g) make and model of the car.
Also get the name and contact information for any passengers of the other driver’s car.
7. Call your insurance company – All car insurance policies require that you notify them within a reasonable time after the accident or risk forfeiting your insurance benefits. Since you will be sitting at the scene waiting for the officer to respond, make good use of your time and call the insurance company to notify them of the accident. Share with the company the identity of the witnesses to the accident, the other driver’s identity and insurance company. Do not tell the insurance company that you and your passengers are uninjured unless you are absolutely positively certain there are no injuries. If in doubt regarding injuries then tell the adjuster that you are not certain, and that you plan on getting checked out by a health care professional. Remember that everything you say to the insurance company will be document and/or recorded.
8. Take photographs of the scene and of the vehicles involved – Most cell phones now have a camera option. Use this feature and take some pictures. The images prove useful later.
9. Cooperate with the investigating officer – Be polite and cooperative with the investigating officer. Be aware that your statements to the officer may affect who receives a ticket, but do not lie or attempt to mislead the law enforcement officer.
10. Go and see a health care professional – When you are released from the accident scene by the officer go and get checked out by a health care professional that you trust, even if you feel fine. Many times injuries resulting from a car accident do not manifest any symptoms until the next day, so, if necessary, go back for a second appointment. When you see the professional tell him or her of all symptoms you are experiencing. Have the visit billed against your car insurance policy. When you called in the accident to your insurance company you should have received a claim number for this accident. Share this claim number with your health care professional’s billing personnel.