MISTAKES TO AVOID WHEN MAKING AN INJURY CLAIM
The attorneys at Bennett and Zydron, P.C. are committed to assisting you with protecting your legal rights. Please review these common mistakes which we have seen in dozens of cases through the years. We hope that this will assist you in maximizing y
1. NOT TAKING IMMEDIATE ACTION AT THE ACCIDENT SCENE.
Do not move your vehicle after the collision until the police arrive. Ask for an ambulance if you feel immediate symptoms of injury. Don't argue or accuse anyone and never admit fault. Fully cooperate with the police. Do not allow the other driver to talk you out of contacting the police. Make written notes of the names, addresses, phone numbers and license plates of all parties involved in the accident, and including any witnesses to the accident. If you have a cell phone or camera, take photos of the damage to your vehicle. If you are injured and cannot take photos, ask someone else to do it for you.
2. NOT DOCUMENTING EVERYTHING THAT HAPPENS AFTER YOU LEAVE THE ACCIDENT SCENE.
You have to prove your facts and damages by documenting everything. The need to document only begins at the accident scene. People forget your pain and suffering, so write down everything you can remember, not only about the accident, but about your injuries. Keep a detailed pain diary. Keep detailed notes of all conversations with insurance company representatives. Document your doctor visits. Keep a business card for each doctor, physical therapist and other healthcare providers that you see. Save all of your pill bottles, casts, braces, and similar items you receive from your doctors. Document your lost wages. If you have a large bruise on your head or body, or scarring, have a photograph taken of your injuries. When you hire Bennett and Zydron, P.C., our investigator can take photographs of your vehicle and any cuts, bruises or scars you have suffered.
3. NOT SEEING YOUR DOCTOR OR NOT COOPERATING COMPLETELY WITH YOUR DOCTORS
Go to your doctor at the first sign of injury. This means seeing your doctor immediately after the accident. You will probably feel worse the day after the injury than immediately after the accident, so make sure you see your physician. Do not assume that just because you don't feel immediate pain that you have not been injured. Some people feel that they can "tough it out" even though they may be in great pain and in need of medical assistance. Some people are embarrassed to ride in an ambulance to the hospital even though they are in pain at the accident scene. This will be used against you by the insurance company later. Insurance adjusters may even argue that the failure to see a doctor immediately indicates that your injury must have resulted from an unrelated event either before or after the accident. The longer you wait for medical treatment, the more difficult it will be to connect your injuries to the accident. Make a commitment to keeping your doctor and physical therapy appointments. Each time you see the physician or physical therapist, report that you are still having pain, so that the doctor will document it in the records. If you do not say that you are hurting or have discomfort, it will not be documented. You must prove that you are in pain in order to make a recovery for that element of damages. Also make sure that each of the doctors you see are given a detailed explanation of exactly how your accident occurred. Be honest with your doctor about any previous injury you had to the same body part. Always cooperate with your physicians and follow your doctor's instructions.
4. GIVING STATEMENTS, SIGNING PAPERS, OR ACCEPTING INSURANCE COMPANY OFFERS OF SETTLEMENT WITHOUT FIRST GETTING LEGAL ADVICE.
Do not give any statements, written or oral, to anyone concerning your accident or injuries without first getting your lawyers approval. Your lawyer may determine that it is in your best interest to give such a statement, but he should be present. It is common practice for insurance adjusters to call persons injured in an accident and attempt to record a statement before the victim has had an opportunity to talk to an attorney. Remember that the adjuster wants you to make damaging statements so that the insurance company can then pay you less money. If you want to fully protect your legal rights, under no circumstances should you talk to the defendant's insurance company without having an attorney with you. Also, never give a medical authorization to the other side's insurance company. This will allow the insurance company to have access to all of your medical treatment and records, whether related to your injury or not. Do not accept any check from any insurance company that says "final payment" unless you are ready to settle your entire claim. Even a check from an insurance company for property damage, if it says "final payment" or "a release of all claims" should not be accepted as you may have given up your claim for bodily injury. Insurance companies have been known to deliberately trick injured victims in accidents into releasing all of your rights. Do not accept a check or sign a release from the at-fault driver or his or her insurance company until you have conferred with an attorney. Do not make the mistake of settling your claim before knowing the full extent of all of your injuries. Do not take advice from anyone, not even friends, as you must have the advice of an experienced injury attorney.
5. EITHER NOT HIRING A LAWYER OR HIRING THE WRONG LAWYER.
Most people injured in accidents have never had to use an attorney and are hesitant to talk to one. Most injury victims do not know a lawyer personally and are not sure if they can even trust an attorney. Many people believe it when an insurance company tells them that they will end up with less money if they hire an attorney. It has been the experience of Bennett and Zydron, P.C. that hiring a lawyer always increases the amount of net money in your pocket. You need an attorney in a serious injury claim because you will be thrown into an adversarial legal system, as the insurance company representing the party at fault has a team of adjusters, investigators and attorneys who will work against you and seek to pay as little as possible to settle your claim. Many accident victims give up with all of the hassles involved in trying to attempt to represent themselves and end up settling for pennies on the dollar. Some accident victims only call an attorney after they realize that they have gotten "in over their heads." Unfortunately by this time the accident victim has made many mistakes that even the most experienced personal injury attorney cannot undo. If you wait too long to get legal help, it gets harder to find evidence and witnesses and you risk losing your claim because the deadline for filing a lawsuit has expired. There are statutes of limitations in each state and a suit must be filed before the statute of limitations has expired. Hiring an attorney will bring you on a level playing field with the insurance company and you are more likely to receive maximum compensation for your injuries. If you had been seriously injured, you definitely need an experienced personal injury attorney. If you were involved in an automobile collision involving only property damage, with no injuries, you probably do not need a lawyer.
29 LEGAL DEFENSES USED BY INSURANCE COMPANIES TO DEFEAT YOUR CLAIM
1. You had equipment defects in your vehicle: your tires were bald, your brakes were not working, taillights were not working, turn signals not working.
2. Your driving ability and perception were impaired by the use of alcohol, medication or drugs; or you had a hearing or vision defect and weren't wearing eyeglasses or your hearing aid.
3. You have physical defects such as headaches, epilepsy, or other sickness which impaired your driving ability and perception.
4. You didn't notice the wrongdoer until impact or immediately before impact, and therefore, you were not attentive.
5. Your recollection of times, speeds, distances is so inaccurate as to indicate inattentiveness or incompetence in driving and at the very least diminishes your credibility.
6. You have exaggerated the wrongdoer's speed or other facts surrounding the accident so as to diminish your credibility and make you an unreliable or unbelievable witness.
7. You could have avoided the accident if you had not been exceeding the safe speed for the conditions presented or otherwise you could have avoided the accident if you had been paying attention.
8. You made an unnecessary or unexpected stop. You made an unsafe lane change without warning. You gave no stop or turn signal. You were not in the intersection first.
9. You make a poor appearance as a witness and/or you have verbal difficulty describing events surrounding the accident.
10. The wrongdoer is a "reasonable person" in the operation of his/her vehicle, including safe speed for the conditions, and therefore was not negligent, that is the wrongdoer's conduct was not the cause of the accident.
11. An act of God or unknown person was responsible for the accident, not the wrongdoer.
12. There is no independent witness to substantiate your version of the accident or a witness cannot be found.
13. A witness or witnesses dispute your version of the facts or substantiate the wrongdoer's version.
14. You made no complaint of pain at the scene of the accident or to anyone else following the accident and there was no indication on the police crash report that you were complaining of pain at the scene. There was no request by you for an ambulance and no objective signs of injury at the scene of the accident.
15. There is minimal property to either or both of the vehicles involved. Your vehicle was equipped with shock-absorbing bumpers, head rests, and seatbelts which made the low-impact injury improbable.
16. You received no treatment for a substantial period of time following the accident. When you did present to a physician, you made errors in recalling your medical history and the facts of the accident.
17. There is no medical opinion substantiating medical causation between the accident and your medical complaints.
18. Shortly after the accident, your physical condition returned to its baseline. That is, what it was immediately prior to the accident.
19. You have prior complaints and received prior treatment to the same areas of your body allegedly injured in the accident and your complaints after the accident are really the same as they were before the accident.
20. You have had a subsequent injury which was the cause of your continual problems instead of the accident.
21. You have exaggerated your complaints related to the accident.
22. Your injuries are totally "subjective," that is there is no indication of injury from x-rays, orthopaedic tests, or observation.
23. You have unrelated medical problems such as arthritis or problems from birth.
24. The cost of treatment was excessive and the period in which you were treated and recovered was excessive.
25. No doctor has stated that you would lose time from work.
26. You were paid by cash for your prior employment and cannot document your earnings and /or you have no tax returns.
27. There are various "statutes of limitations" that can run out, foreclosing your possibility of recovering for anything for your claim.
28. You were partially at fault in the accident.
29. You made a statement to the insurance company that you were not injured in the accident.
And.....there are hundreds more!
2008 Personal Injury Boating Case
Settled $115,000
Virginia Beach Circuit Court
A 16 year old boy was injured by a boat propeller while tubing. The boat operator had left the motor running while the boy attempted to board the boat resulting in severe lacerations to his right leg. The case settled without having to file suit.
2008 Nursing Home - Pressure Sore Case
Settled $350,000
A 79 year old nursing home resident, was transferred to the nursing home for rehabilitation following knee replacement surgery. While at the nursing home, the resident develope Stage IV pressure sores of the sacrum and on both heels. The resident was admitted to the hospital and died 7 months later due to end stage renal disease.
2007 Wrongful Death Scalding Case
Norfolk Circuit Court
A 63 year old handicapped woman died after being scalded by water emitting from her bathtub. Her third degree burns resulted in infection which caused her death.
2006 Traumatic Brain Injury Case
Hampton Circuit Court
Armbrister v. McDade
Plaintiff, 17 years old, suffered a mild traumatic brain injury when Defendant broadsided her vehicle going 35 mph. Plaintiff suffered a brain injury which caused headaches, memory loss, concentration problems, and depression. Despite her injury, plaintiff was able to work as an officer in the U.S. Army. The case was tried before a jury who returned a verdict for the plaintiff in the amount of $250,000
2005 Traumatic Brain Injury Case - $3 million jury verdict
Hampton Circuit Court
Wood v. S.C. Jones, Inc., et al
Woman was traveling 40 mph when she collided with a dump truck who negligently made a left turn in front of her. Plaintiff suffered a brain injury which caused headaches, dizziness, memory loss, nausea, difficulty with concentration, inability to communicate thoughts, balance problems, dropping things, fatigue, anxiety, and depression. She also suffered injuries to her back, neck, shoulder, and knees. Plaintiff has undergone extensive medical treatment and will require future care for her injuries. Additionally, she is not able to work due to the collision. The case was tried before a jury who returned a verdict for the plaintiff in the amount of $3 million.
2005 North Carolina Adult Long Term Care Negligence - Settlement: Confidential
John Doe v. Adult Long Term Care Facility
Settlement: Confidential
Plaintiff, who suffered from dementia and severe Alzheimer's, was ambulatory and had all his teeth removed. Plaintiff did not have dentures, and his meals were required to be soft-mechanical (pureed). To protect him, it was ordered that Plaintiff eat meals in the dining room and that staff members monitor Plaintiff while he ate. Despite the order, Plaintiff was served a regular-diet meal in his room by a CNA staff member without any supervision. Plaintiff stuffed food into his mouth, including hamburger and a bread roll, and choked to death. The staff was negligent in providing Plaintiff a tray of regular-diet food in his room, was negligent in failing to monitor plaintiff while he was eating, and was negligent in allowing Plaintiff to eat in his room instead of the dining room. The assistant administrator was also negligent in that she observed the CNA staff member leave Plaintiff's room after giving him a tray of food and then failed to monitor the plaintiff herself or require Plaintiff to go to the dining room. Settlement: Confidential.
2005 Nursing Home Malpractice - $250,000
Johb Doe v. Nursing Home
Plaintiff was a non-ambulatory, demented resident with severe Alzheimer's who was fed through a feeding tube. When the tube became clogged, the nursing home's RN called and advised the doctor of the situation. The RN then obtained an order to replace the feeding tube. Despite never having replaced a feeding tube before, the RN attempted to replace the feeding tube without any assistance. The nursing home was negligent when it failed to follow procedure for proper placement of the tube as well as when it failed to confirm the tube was placed correctly after it was inserted. The tube was negligently inserted into the abdomen instead of the stomach pouch. Medication and food were pumped into the stomach resulting in septic shock and death a few days later.
2005 Automobile Wrongful Death - $625,000
Minor v. Younger
Chesapeake Circuit Court
Plaintiff, 16 years old, was killed when riding as a passenger in a car being driven by Defendant. Defendant, a 17 year old who had his driver's license just 30 days, drove down a wet, dark, two-lane road at speeds of up to 100 mph. Defendant lost control of the car on a curve and hit a tree. Plaintiff was killed instantly. The parties reached a settlement for $625,000.
2004 Nursing Home Malpractice - Settlement: Confidential
John Doe v. Nursing Home
On January 28, 2003, the decedent, age 74, was admitted to defendant nursing home for rehab after a hip fracture suffered at home. The decedent suffered from dementia. Because of immobility and dementia, he was assessed as being at a high risk for the development of pressure sores. On February 21, 2003, a sacral pressure sore was first observed at a Stage II. By February 27, 2003, the wound had advanced to a Stage III. By March 7, the wound had advanced to a Stage IV and continued to advance in size until March 24, 2003 when he was discharged to the hospital. During the period January 28, 2003 through March 7, 2003, the decedent lost 36 pounds which is an excessive weight loss in only 38 days. A special air mattress was not provided until March 21, 2003, three days before his discharge to the hospital with infected sacral decubitus. The defendant facility did not seek a consultation by a wound care nurse until March 7, 2003. The decedent's family effectively testified during mediation that he was not turned or repositioned and that they had to feed him as his tray was left in his room during the day by the CNAs, with no help provided for the decedent to take his meal. The decedent had a life expectancy of approximately 3 years because of his underlying Parkinson's disease and dementia conditions. The parties settled the case at mediation, the amount of settlement being agreed upon as confidential.
2004 Nursing Home Malpractice - Settlement: Confidential
John Doe v. Nursing Home
57 year old stroke victim admitted for rehabilitation and long term nursing care with inability to turn and reposition himself, but with no skin breakdown. Prior to admission decedent had been in several hospital facilities several months, but again with no skin breakdown. After admission to defendant nursing home facility he was assigned to a room at the end of the hallway, as far as one can get from the nursing station, and assigned direct givers CNAs that did not turn and reposition him on a regular basis. Decedent could not talk in order to voice complaints or verbalize his needs. Within three weeks decedent had formed Stave IV bed sore on his scrotum. Depositions of the CNA staff proved inadequate staffing to meet decedent's needs to be turned and repositioned on a regular basis. Once the advanced bed sore was recognized by the staff, long delays occurred in providing sufficient and adequate treatment further contributing to the deterioration of his condition. Over 50 alternations in the nursing home chart were demonstrated using the services of a document expert. The decedent having life expectancy of approximately five years because of his underlying condition. The parties settled prior to trial for the maximum coverage available.
2004 Traumatic Brain Injury - $7.5 million
Hampton Circuit Court
Watford v. City of Hampton Public
Schools, et al
Motorcycle rider struck in back of head by side mirror of school bus, school bus making negligent left turn in the path of motorcycle. Plaintiff suffered brain stem injury, pelvic and leg fractures and medical bills in excess of $400,000.00. Plaintiff will never be able to return to work at his job at the Newport News Shipbuilding & Drydock and suffered a loss of earning capacity of approximately $900,000.00. Plaintiff will also require future medical costs for physical therapy, occupational therapy and speech therapy estimated at $227,000.00 per year for support care. Parties settled after lengthy mediation for $7.5 million dollars.
2003 Wrongful Death/Dialysis/Nursing Malpractice - Settlement: Confidential
Jane Doe v. Dialysis Center
Decedent was exposed to harmful chemical during her regular dialysis treatment, resulting in fatal hemolysis of her blood (destruction of red blood cells). The parties settled for a substantial sum prior to trial.
2003 Traumatic Brain Injury - $2.4 million
Virginia Beach Circuit Court, John Doe v. Swygert & Eastern Aluminum Supply
60 year old chiropractor, while riding bicycle, was struck in back of head by side mirror of delivery truck. Although initially having refused medical treatment, he later developed cognitive and psychological difficulties which radically altered his lifestyle. His special damages include $26,101.00 in past medical bills, $478,800.00 in future medical costs, and $720,000.00 in lost earning capacity. The parties settled after mediation for $2.4 million.
2003 Wrongful Death/DUI - $1.2 million
Virginia Beach Circuit Court, Vega v. Looker
Mrs. Vega, 41, was a passenger in a minivan. As the van entered an intersection, a sport-utility vehicle ran a red light, striking the van, and killed Mrs. Vega. She is survived by two adult children and one minor child. A hotel housekeeper who had earned approximately $25,000 annually, she had also been studying to be a chef's assistant and had been attending beauty school. Her future lost earnings are estimated at between $650,000 and $780,000. Her medial expenses were approximately $330,000. The defendant was criminally indicted for driving under the influence and pleaded guilty to a charge of vehicular manslaughter. The parties settled the case before trial for $1.2 million.
2003 Nursing Home Negligence - $275,000
Norfolk Circuit Court, John Doe v. Roe Nursing Home
Plaintiff’s decedent, 95 years old, admitted to Nursing Home with known propensity to fall. Inadequate assessment upon admission to Home, inadequate reassessment after falling in Home, and lack of communication among staff about implementation of least-restrictive fall prevention measures for this patient, leads to his death from subdural hemotoma due to later fall. Statutory beneficiaries were four stepchildren and three estranged natural children. Special damages were $11,291.95 in medical bills, and a $3,010.00 funeral bill.
Settlement amount: $275,000.00
2002 Nursing Home Negligence
Richmond Circuit Court, Jane Doe v. Moe Nursing Home
The plaintiff was admitted to defendant nursing home for skilled rehab. Four days after admission a licensed practical nurse, who worked part-time at defendant nursing home administered medications to plaintiff that where prescribed for plaintiff's roommate. Plaintiff was on two medications but her roommate was on nine medications and the LPN who was not familiar with plaintiff gave her the roommate's medications in error. Negligent acts by the nursing home included failure to provide plaintiff with a patient name-band; failure to make sure plaintiff was the right patient to receive the medications; failure to mark the pharmacy drawer on the medication cart with plaintiff's name and instead labeled the pharmacy drawer meant for the plaintiff with the roommate's, and failed to correctly label plaintiff's name as being assigned to her bed, but instead labeled the door to the room with the name of her roommate for that bed. Plaintiff had an adverse reaction and her blood pressure fell abruptly, requiring four days of hospitalization and total medical specials of approximately $11,000.00. Parties settled for $50,000.00. Plaintiff did not suffer any long term ill effects
2002 Medical Transport Negligence -Settled $108,000
Virginia Circuit Court, Jane Doe v. Moe Transport, Inc.
Client falls and fractures hip and hip is pinned by surgeon and he has her admitted for rehab to a nursing home. Client completes rehab and is released to go home and medical transport takes her to her apartment building. Medical transport employee decides to pull client up backwards up the three stairs to the stoop of the apartment building, gets up onto the stoop and then releases the wheelchair, which then falls along with the client, down the three steps, and the employee then falls down the steps on top of the client, re-fracturing her hip. Client has to undergo prosthetic hip placement, recovers and again goes home.
Settlement amount $108,000.00.
2002 Nursing Home Malpractice & Federal Tort Claims Act - Settled $125,000
U.S. District Court, Norfolk Va., Pearl Taylor v. U.S.A. and Confidential Nursing Home
99-year-old woman developed a Stage IV sacral decubitus ulcer due to the combined negligence of the Nursing Home, the attending physician, and his nurse practitioner. Upon discovery of the wound, plaintiff’s family removed her from the facility, sought appropriate medical care, placed her in a better facility, and after several months the wound healed. Suit originally was filed in state court against both the Nursing Home, and also the physician and his nurse practitioner, both employees of Eastern Shore Rural Health Systems, Inc., which also was a defendant. It was removed to federal court by Eastern Shore as, unbeknownst to plaintiff and not discoverable beforehand, this defendant was a participant in the federal malpractice insurance program created by the Federally Supported Health Centers Assistance Act, 42 USC 233; hence, the sole remedy against Eastern Shore and its employees is under the Federal Tort Claims Act. Dismissal was stipulated allowing plaintiff to pursue her administrative remedies under the FTCA and, immediately upon their exhaustion, she filed suit against the United States and Nursing Home. The United States offered judgment, and Nursing Home settled for the remainder. Medical bills totaled $14,341.49.
Settlement amount: $125,000.00
2002 Veterans Nursing Negligence -Settlement $160,000.00
U.S. District Court, E.D.Va. Lauth v. United States (Dept. of Veterans' Affairs).
Death of 83 year old amputee from subdural hematoma caused by nurse's improper turning of patient in bed at Hampton VA Medical Center.
Settlement amount: $160,000.00
2001 Nursing Home Malpractice - Settlement: Confidential
Virginia Circuit Court. Estate of Jane Doe v. Roe Nursing Home.
Resident on pureed diet order gets access to a hamburger, eats it, and chokes to death. Settlement amount: Confidential.
2001 Medical Malpractice - Settlement: Confidential
Virginia Circuit Court. Jim Doe v. Larry Roe, M.D.
Family physician failed to diagnose prostate cancer resulting in loss of chance for cure. Settlement amount: Confidential.
2001 Medical Malpractice - Settlement: Confidential
Virginia Circuit Court. John Doe v. Mike Moe, M.D.
Surgical negligence. Dr. Moe failed to wait for full effect of anesthesia during umbilical hernia operation. Negligently failed to appreciate nicking the bowel; resulting sepsis. Settlement amount: Confidential.
2001 Nursing Home Malpractice - - Settlement: Confidential
Virginia Circuit Court. Estate of Jane Doe v. Roe Nursing Home.
Resident transferred by Hoyer Lift is dropped; allegedly "slides" out of sling. Multiple fractures; death. Settlement amount: Confidential.
2001 Nursing Home Malpractice - Settlement: Confidential
Virginia Circuit Court and U.S. Bankruptcy Court. Jane Doe v. Roe Nursing Home.
Unexplained fall by Alzheimer's resident results in facial and upper body bruises and broken clavicle; delay in treatment of broken clavicle. Significant obstacles due to Home's bankruptcy overcome. Settlement amount: Confidential
2000 Medical Malpractice - Settlement: Confidential
Virginia Circuit Court. Jane Doe v. John Doe, M.D.
Mother of full-term baby is brought to hospital by OB/GYN for induced labor so he can go on vacation. Defendant does not timely respond to delivery difficulties and child suffers anoxia and resulting severe brain damage. Settlement amount: Confidential.
2000 Nursing Home Malpractice - Settlement: Confidential
Virginia Circuit Court. John Doe v. Moe Nursing Home.
Resident fell more than 30 times before the nursing home reassessed his care plan and provided least restrictive restraint. Falls then ceased. Injuries to face and head. Settlement amount: Confidential.
