Janus Law, P.C.

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Q: Do I have to go through an operation for the insurance company to compensate me for suffering?

· A: It's not likely you're going to have to go through the operation to recover for the cost of it. In civil claims, you have the burden of proof to prove your damages, but only by preponderance of the evidence. If your doctor says it's more likely than not that surgery is going to be required but you want to wait to do the operation, there's no reason that you can't be compensated for the cost of that operation and the pain and suffering associated with the operation.

Q: Do most cases go to trial to recover damages?

· A: Most cases don't end up in trial. About 95 percent of personal injury cases that are filed settle prior to trial.

Q: How does a prior injury affect the value of my claim?

· A: Generally, a person who's negligent or careless is responsible only for the harm he or she caused. That means that you have to prove there was negligence and that the negligence caused your injury. If you had a prior injury, their negligence didn't cause your initial injury. However, if you can prove that the negligence made the injury worse, you can collect for the degree to which the condition has been aggravated.

Q: Is there a minimum or maximum amount that can be recovered in a personal injury settlement?

· A: No, there's no minimum or maximum settlement amount.

Q: What are the issues affecting the damages that can be recovered?

· A: Every case addresses three issues:
o Liability - was someone negligent?
o Damages - the amount that will fairly and adequately compensate you for your injuries
o Source of collection - is there insurance or other assets from which damages can be recovered?

Q: What does "preponderance of the evidence" mean?

· A: Preponderance of the evidence means whatever is more likely than not.

Q: What's a normal settlement amount?

· A: Insurance companies will pay not because they like you or they think it's fair, or because they settled a similar case for a certain amount. They pay because they've no other alternative. The proper value of a claim is established when an experienced trial lawyer reviews and interprets the case information, such as:
o The amount of the medical bills
o Loss of past income
o Future medical bills
o How old you are
o Permanent limitations you now have
o Impact on our future earning capacity
o Activities you no longer do
o Activities you do but don't enjoy as much
o Prognosis for further problems
o Strength of lay witness testimony, and so forth
A good lawyer begins with one end in mind - what a reasonable jury would award as fair and adequate compensation. You must always negotiate from a position of strength with the other side. That means that the other side sees that you and your lawyer have put together the necessary lay and expert witnesses to go to trial.

Q: What's considered "pain and suffering?"

· A: Pain and suffering means not only the fact that you're physically hurting, but also the mental anguish of going through potential surgery and avoiding activities that you used to do before the accident.

Q: What's contributory negligence?

· A: Your actions may have contributed to the accident and the injuries you received. In some cases, contributory negligence on the part of the injured party may reduce the amount of the settlement awarded.

Q: What's included in a bodily injury claim settlement?

· A: The term "bodily injury claim" usually refers to a "personal injury claim." Economic damages would include, but aren't limited to, lost wages, medical bills, rental car charges and so forth. Pain, suffering, humiliation and distress all fall within the term "general damages." If you settle your bodily injury claim, it must include all economic and general damages available to you, or you'll likely lose your right to recover for those losses.

Q: What's subrogation?

· A: Generally, a health insurance plan or policy has a subrogation provision, which says that the health insurance company of the injured party is entitled to be paid back from the third-party wrongdoer's insurance company. Your lawyer usually handles this, so that two things occur:
o The opposing insurance company settles when the health insurance company has agreed to release whatever claim they have against them.
o The health insurance company accepts as full and final payment the amount agreed upon for the services received. Health insurance companies routinely take less than the full amount owed to them because of the costs incurred in going out and getting fair and adequate compensation. Some states have law that provides that the subrogation claim of a health insurance company can't be paid until you're made whole.

Q: When should I settle my case?

· A: Not until you're sure of the nature and extent of your injuries and whether you'll need continuing medical attention. You should know whether you'll be able to work in the future and how the injury will affect your ability to do normal household tasks, sports and hobbies before you and your attorney discuss money with the insurance company or others.


 
HERE’S AN EXAMPLE OF SPECIFIC FAQ’S FOR MED MAL :
 
What sort of damages can be recovered from a medical malpractice lawsuit?
Medical malpractice attorneys in New York can help victims recover medical expenses for treating the injuries caused by the malpractice; damages for pain and suffering; disfigurement and disability damages; lost wages and ability to earn wages in the future. In certain circumstances, spouses, children and parents of negligently injured people may recover damages for the loss of the love, care, affection, companionship and other pleasures of the family relationship lost due to medical malpractice.

Who will receive money after a successful medical malpractice lawsuit for a birth injury?
If a living child suffers harm due to an avoidable birth injury, damages awarded as part of a successful medical malpractice lawsuit will typically go to the child, sometimes in the form of a legal trust.

What if my insurance company or Medicare/Medicaid paid for the treatment that I believe was malpractice? Can I contact a medical malpractice attorney in New York to file a claim even though no money came from my pocket?
Absolutely. It makes no difference who paid for the medical expenses. Health care providers are required to render care and treatment, based on the acceptable standard of care, regardless of who is paying for the procedure, or face the consequences of New York medical malpractice law.
 

EXAMPLE OF FAQ’S FOR PHARMACEUTICAL :
What are the most common causes of pharmaceutical negligence?
Greed–A pharmaceutical company may fail to disclose certain side effects or health risks, in an effort to get their drugs into the marketplace. Sometimes there is not enough time spent on clinical trials, and researchers may miss critical findings that may be brought to light later—when the drug is on shelves and causing harm to the public. Additionally, mistakes can be made in the manufacturing process, which may result in tainted or defective products.
What is the best way to I avoid a pharmaceutical injury?
Ask your doctor or pharmacist to explain the known risks of taking the medicine they have prescribed or are about to take. Make sure you read the labels very carefully when buying over-the-counter medications. A variety of medications can contain ingredients that you should not or can not take. Because drugs can interact with other prescriptions, you should always consult with a doctor before beginning a medication. A pharmacist can also help you choose the right product, or fully understand the ingredients in a certain medication. Listen to your body – if a medication causes noticeable changes in how you feel you should stop taking the medicine and call your doctor immediately.
My prescription was filled incorrectly, and I became ill. Does this warrant a pharmaceutical injury suit?
Possibly. Lawsuits may be based on improperly filled prescriptions. In most cases, a medication is either prescribed that has a bad reaction with a medication you are already taking, or the pharmacist issues an incorrect medication or dosage. In both cases, the pharmacist and/or doctor could be held liable. In most cases whether you have an actionable case hinges on the severity of the damage or injury.
If you or a loved one suffered serious side effects or other injury because of a medication, please contact the lawyers at Craig Swapp & Associates. Our client-oriented staff will answer your questions and help you recover the compensation you deserve. Please call our office today for a free consultation. One call, that’s all.
 
NO FAULT FAQS
 
Q. What is No-Fault?
A. No-Fault is insurance that is designed to compensate an injured person, regardless of who might be at fault for the accident, for economic losses such as medical expenses, lost earnings and other reasonable and necessary expenses incurred as a result of a motor vehicle accident. The basic No-Fault coverage is $50,000 per injured person.
Q. Am I eligible for No-Fault benefits?
A. You are eligible to receive No-Fault benefits if:
· You are injured in an automobile accident;
· You are a pedestrian, bicyclist or snowmobile rider struck by an automobile, motorcycle or ATV (all terrain vehicle); or
· You are hurt during the use, operation or maintenance of a motor vehicle unless you are injured in the course of the business of repairing or maintaining a vehicle.
Q. What do I do first?
A. To begin the No-Fault process, you must report your claim and file a No-Fault application with the No-Fault insurance carrier. The No-Fault insurance carrier is the insurance company which covers the motor vehicle in which you were an occupant or, if you were a pedestrian, the car that struck you. The law requires that written notice setting forth details sufficient to identify you and the time, place and circumstances of the accident must be given to the No-Fault insurance carrier as soon as reasonably practicable, but in no event more than 30 days after the date of the accident. Failure to file the application in a timely manner may result in a denial of benefits.

The Application for No-Fault benefits should be provided by the No-Fault insurance carrier – the insurance company that insured the car you were in or struck by at the time of the accident. Usually, the No-Fault insurance carrier will mail you the application and other no-fault forms directly.
Q. What information will I need to file for No-Fault benefits?
A. You will be asked for identifying information such as your name, address, telephone number, date of birth and social security number. You will also be asked information regarding the date, time and place of the accident and for a description of how the accident occurred.

With regard to your injuries, you will be asked to describe your injury, and list all medical providers and facilities that have provided treatment to you. The No-Fault insurance carrier should send appropriate forms to each of the medical providers that you identify. Once the medical providers have the name of the No-Fault insurance carrier and your claim number, they will most likely send the bills for your medical treatment directly to the No-Fault carrier. 

In order to be reimbursed for lost wages, you must indicate that you have lost time from work, identify your employer, state your gross average weekly earnings and how often you work. Your employer will be sent an Employer’s Wage Verification Report. Your employer must submit this report within 90 days after your work loss was first incurred in order for you to recover lost wage benefits from the No-Fault insurance carrier.
Q. What if, after filing the application, I go to a new medical provider for treatment?
A. Give the new medical provider the name and address of the No-Fault insurance carrier and your claim number so that they can submit their bills for payment. 

If you receive any bills for your medical treatment related to the accident, you should send them to the No-Fault carrier and contact the medical provider’s billing office to advise them to send the bills to the No-Fault insurance carrier.

Once your No-Fault application has been filed, the No-Fault insurance carrier assumes responsibility for the medical bills resulting from the accident if the bills were submitted timely. Medical bills must be submitted to the No-Fault insurance carrier within 45 days of the date of treatment.
Q. What if my child is hurt in an accident?
A. If a minor (someone under the age of 18) receives medical treatment as a result of an automobile accident, the parent or guardian is legally responsible for the medical bills. Thus, the parent or guardian must file the No-Fault application, and forward the minor’s medical bills to the No-Fault insurance carrier, just as they would their own. Again, the No-Fault application must be filed within 30 days of the accident, or No-Fault benefits may be denied.
Q. Besides medical bills, what other costs can I recover through No-Fault?
A. You may be reimbursed by the No-Fault insurance carrier for lost wages, prescriptions, travel expenses for medical treatment and household help while you are recovering from your injuries – including costs of child care while you visit medical providers.
Q. Will No-Fault cover all of my lost income?
A. Basic No-Fault coverage reimburses lost wages at a rate of 80 percent of your gross earnings up to a maximum of $2,000 per month for not more than 3 years from the date of the accident. However, you may have “additional” No-Fault coverage on your automobile insurance policy that provides a higher monthly wage benefit.
Q. What about New York State disability benefits?
A. New York State Disability benefits are temporary benefits paid to an eligible worker when the worker is disabled by an off the job injury. No-Fault income benefits are paid less any amount you are entitled to receive under the New York State Disability Benefits Law so it is important that you apply for disability benefits if you are entitled to receive them. 

To file for New York State disability benefits, you must file a Notice and Proof of Claim for Disability Benefits within 30 days after you became disabled. Part of the Notice and Proof of Claim is completed by you and part is completed by your doctor. The Disability Benefits Application Form is provided with your No-Fault application, or by your employer. You must file this Notice and Proof of Claim with your employer or your employer’s disability insurance carrier.

After a one-week waiting period in which no benefits are paid, the disability benefits insurance carrier pays at a rate of 50 percent of your average weekly wage up to a maximum of $170.00 per week. Benefits are paid for a maximum of 26 weeks of disability during 52 consecutive weeks.
Q. Will both the New York State Disability carrier and No-Fault carrier reimburse me for lost wages?
A. Yes. You may receive reimbursement for lost wages from both sources. However if you are receiving New York State disability payments, you must tell the No-Fault insurance carrier by providing a copy of the benefit check. The No-Fault insurance carrier will then make the proper deduction before sending your No-Fault lost wage benefit. It is very important that the No-Fault insurance carrier is told about the New York State Disability lost wage payments. Failure to inform the No-Fault carrier of your state disability payments constitutes fraud.
Q. What if I am working when I have an automobile accident?
A. If you are injured in an automobile accident while in the course of your employment, you must apply for Workers’ Compensation benefits. Workers’ Compensation will pay 2/3rds of your average weekly wage, up to the maximum benefit. For accidents prior to July 1, 2007, the maximum benefit is $400 per week. For accidents taking place between July 1, 2007 and June 30, 2008, the maximum weekly benefit is $500 per week. It is important to note that you may also be entitled to excess benefits from the No-Fault carrier – the difference between Workers’ Compensation 2/3rds benefit, and No-Fault 80% benefit up to the maximum monthly No-Fault wage benefit.
Q. I’m self-employed. How do I go about recovering my lost income?
A. You must provide verification of your income by filling out the verification form provided by the No-Fault insurance carrier. You may also be asked to provide copies of your income tax returns to verify your earnings.
Q. What about reimbursement for medicine?
A. Simply send a copy of the prescription and receipt to the No-Fault carrier. Be sure to provide the name of the doctor who prescribed the drug as well as your No-Fault claim number.
Q. How much of my non-medical expense is covered by No-Fault?
A. As a general rule, No-Fault pays a maximum of $25 per day for all non-medical expenses. However, you should check your policy for “additional” coverage. Non-medical expenses include, but are not limited to, cost of transportation to and from medical appointments, household help and childcare. The No-Fault carrier is required to make these payments for one year. 

Remember that you must send documentation of all non-medical expenses to the No-Fault carrier in order to be compensated. It is important to make sure that your No-Fault claim number is clearly visible on all mailings. You should keep for your own records, copies of all paperwork sent to the No-Fault insurance carrier.
Q. And what about travel expenses?
A. You are entitled to reimbursement for mileage to and from a medical provider. You must keep a log of where you went, the dates you went and round-trip mileage. The insurance carrier will verify that you treated with the medical provider by reviewing your medical records or bills before it will reimburse you for your travel expense.

If you use a taxi cab service to transport you to and from a medical appointment, you are also entitled to reimbursement. You must send the receipt for the ride to the No-Fault insurance carrier for reimbursement. However, you must remember that basic No-Fault insurance pays a maximum of $25 per day for all non-medical expenses.
Q. Can I recover the expenses of hiring household help during my recovery?
A. Yes, but you must first get a letter from your doctor stating that this help is a medical necessity. You must keep track of the rate you paid the household aide and the number of hours he or she worked.
Q. Will the No-Fault carrier take my doctor’s word about my disability?
A. Not necessarily. The No-Fault insurance carrier may ask that you undergo a Medical Examination by a doctor of its choice. If you receive a letter telling you that the insurance ecarrier wants you to be examined by a doctor, it is very important that you keep this appointment because the insurance company may deny you any future no-fault benefits if you do not. If the doctor finds that you no longer need medical treatment or are no longer disabled from work, the No-Fault carrier will stop paying for your medical treatment and/or stop reimbursing you for lost wages.
Q. What happens if the No-Fault insurance carrier cuts off my benefits?
A. If No-Fault denies or stops paying your medical bills, you should then submit them to your own health insurance carrier. However, you should continue to submit your medical bills to the No-Fault carrier, and should tell your medical providers to continue to submit your medical bills to the No-Fault carrier. You should do this because you can file for arbitration against the No-Fault insurance carrier asking the arbitrator to rule that your medical bills be paid. However, the arbitrator can only rule on medical bills that have been submitted for payment, and the No-Fault carrier has refused to pay. 

If the No-Fault carrier denies your claim for lost wages, you must continue to treat with your medical care providers to document that you are still disabled from work in order to contest the No-Fault carrier’s denial. Without medical proof of your disability, you do not have the evidence that you will need to contest the denial.
Q. What is my recourse against the No-Fault carrier?
A. If you and your doctor feel that you were unfairly denied No-Fault benefits, you can bring the carrier to arbitration. An independent arbitrator will determine whether or not the denial of benefits was correct. If the arbitrator finds that the denial was improper, he or she will specify which medical bills should be paid and for what period of time you should receive lost wage benefits. 

Because the arbitrator can only rule on medical bills and lost wages that were submitted and the No-Fault carrier refused to pay, it is important that you continue to submit your medical bills to No-Fault. To maintain a claim for lost wage benefits, your doctors must continue to document in your medical records that you are disabled from your employment. 

You have six years from the date of the accident to begin the arbitration process. It is advisable to wait to file for arbitration until after your claim for personal injuries against the at-fault driver has been resolved since the arbitration decision may affect the proof that you are allowed to present in your case against the at-fault driver.
Frequently Asked Questions
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