prove liability in personal injury case utah

4 Ways to Prove Liability in a Utah Personal Injury Case

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4 Ways to Prove Liability in a Utah Personal Injury Case

How do we know when someone else is legally responsible for our injury? There are four basic ways ones can prove liability in a Utah personal injury case. Liability means that one person is responsible for something that happens to another.  Therefore,  the cost of the bodily harm is shifted to the responsible person.  There are basically four ways to prove liability and this article will describe each one.  The focus will be as the liability applies in personal injury cases in Utah. It should be noted that there are a wide variety of liability theories and causes of actions in other types of cases.

prove liability

Standard Negligence

This first way to prove liability that we will discuss is proving a case of standard negligence or “prima facie.”  According to thefreedictionary.com, in common parlance, the term prima facie is used to describe the apparent nature of something upon initial observation. In legal practice, the term generally is used to describe two things: the presence of sufficient evidence by a civil claimant to support the legal claim (a prima facie case), or a piece of evidence itself (prima facie evidence).  There are four elements to standard negligence that must be proven.

Duty

The first element is duty.  Duty means that one person owes some type of obligation or duty to another.  Generally speaking,  people do not have an affirmative duty to act a certain way that they owe to other people.

In order to understand the concept of duty, let’s examine what duty is not.  If you happen to witness that someone is about to get hurt, you don’t necessarily have to go save that person thereby putting yourself at risk.  For example, if you noticed that a person was about to get hit by a car, though it would be a heroic act to jump out in front of the car and try to push that person out of the way, it is not your duty.  Fortunately, many people would do just that anyway.  However, the general rule is that people do have a duty to not create foreseeable harm for other people.  That is the general duty.  You have a duty to keep your sidewalks clear of ice in the winter.  You have a duty to stop at stop signs. You have a duty to not drive while under the influence of alcohol or any other substance that would impair your ability to make good decisions or compromise your duty to be an alert, attentive driver.

Breach

The second element of standard negligence is breach.  This is when you breach that duty by creating foreseeable harm for another person, then you have met the second element of negligence.  In an auto accident case, a breach, for example, could be texting while you are driving.  You have a duty when you drive to not create foreseeable harm to others and when you text while you’re are driving, you know, you realize that you are creating a risk for others because you are distracted.  If someone happens to be in front of you, you might hit them because you’re are not paying attention and you have breached your duty towards them.  People have the right to expect that other drivers will not unreasonably breach their duties.   Breach would also apply to a case of someone driving while intoxicated.

Cause

The third element of negligence is causation.  Causation can be broken down into two categories, direct causation, and proximate causation.  Causation means exactly what it sounds like it means. It’s a legal term that means that you were the cause of something.  It means that because of you, something else happened.  The events are connected.  For example, there might be many direct causes but only one of those actually proximately caused the injuries.  Proximate cause is basically tying the injury or the effect to the negligence.  It ties those two legal elements together.

Direct cause or cause in fact, as it is also called, is figured out by the but-for test.  But for the action, the result would not have happened.  For example, but for someone texting while driving, they would not have rear-ended the car in front of them, which caused the passengers injury.

Proximate causation is legal causation.  It’s basically a legal limitation to cause and fact.  Sometimes there might be several but-fors.  As in if one person commits an act that causes an entire chain of events to happen.  Meaning that one thing might not have happened had not another thing happened and so on.  But proximate cause basically limits that, it cuts it off.  It’s got to be that the negligence and the injury are connected closely enough that we can reasonably blame that injury on that negligence.  It is not that one person did something negligent one day which led to a series of events that occurred in someone else’s life and eventually resulted in an injury.  There is only so far that the law will allow causation to go.  A case involving several but-for’s would be if a pedestrian was walking down the street and was suddenly struck by a car and then fell down a manhole.  In this situation there would be at least two but for acts involved.  But for the car hitting the pedestrian, they would not have been knocked into the manhole.  But for the city worker leaving the cover off of the manhole previously, the pedestrian could not have fallen down it when they were struck by the car.  In this situation, the city worker and the driver of the automobile are both at fault.  Both have liability to the injured pedestrian.

Harm

The fourth element is harm or damages.  So that means the resulting injury and the value that is placed on that injury.  Damages really get broken down into two categories.  Those categories are special damages and general damages.  Special damages are something that you have a dollar amount for.  So if you incur medical bills, we can add those up and come up with a number and that would be your special damages.  General damages are not as cut and dried to figure.  We don’t have specific dollar amounts for this type of damage.  They are more specific to each individual person.  The way those are figured is by considering the way that that particular injury affected that person individually.  Maybe they suffered emotionally because of the injury.  Maybe they had a relationship that was destroyed because of the injury.  They might have had to give up a major hobby that they were involved in and lost some of their enjoyment in life.  Each person does not suffer the same amount of damages even if they suffer the same injury.  These type of damages that are specific to the individual are general damages.  All four elements, duty, breach, cause, and harm, need to be present in order to prove liability by standard negligence in a personal injury case. This is by far the most common theory by which one may prove liability.

Negligence Per Se

The second way to prove liability in a case is called “negligence per se”.  Basically, that means negligence due to the violation of a public duty, such as speeding through a school zone or neighborhood.  It is a public duty to slow down significantly in both of these settings.

There are really two major elements of negligence per se. The treatment of negligence per se can change a bit based on the jurisdiction, but the general rule is if someone violates a law and the violation of that law results in harm to the very class of people that that law was designed to protect, then that’s negligence per se.

So a classic example of that would be that there is a law that says, “don’t run a red light.”  Well, the reason for that law, is that if you run a red light, you might T-bone another car that is passing through on a green light.  So if you do run a red light and you hit a vehicle that is passing through the intersection when they have a green light, then you have violated a traffic law and you have now hurt a person that the law was designed to protect.  A personal injury attorney will be able show negligence on that case through negligence per se.  The need to prove that the at-fault person was careless does not need to be demonstrated because a law was broken.  Since the law was broken, the decision now becomes was that violation of the law the proximate cause of the accident and/or injury. In this case, one does not need to prove liability. One can simply show that the Defendant broke the law.

Res Ipsa Loquitur

This is the third way to prove liability in a case, Res Ipsa Loquitur.  This a Latin term  that means “the thing speaks for itself.”  A classic cartoon example of that would be if somebody is walking by on the sidewalk and a couch falls out of an upstairs window of an office building and strikes the person on the head, rendering them unconscious  They don’t know what happened and they certainly can’t prove it. They are unconscious.  They just don’t know what happened in that room up above that caused the couch to fall out of a window and hit them on the head.  They maybe can’t prove duty, breach, cause and harm or what events happened that led to them being hit on the head. However, couches shouldn’t be falling out of windows on innocent passersby.   That logic speaks for itself.  The basic element is that In order to show liability you need to be able to show that someone had exclusive control over the instrumentality involved.  If you know who was in that room messing with that couch then you would be able to make a case of negligence using Res Ipsa Loquitur.  It would be pretty clear who was liable for the injuries of the passerby because “the thing speaks for itself” or Res Ipsa Loquitur. In theory, this helps one prove liability in situations where we don’t know much about the conduct of the other person.

Strict Liability

The fourth way to prove negligence and therefore liability is something called strict liability.  It’s actually not negligence,  it is something a bit different.  Strict liability is a way that we are going to hold you accountable for harm to another person regardless of whether you have done any negligent act or not.  As you can imagine this is only used in rare circumstances.  An example of when strict liability might make sense would be that in Utah we have strict liability when it comes to dog bites.  Some states use negligence for dog bites.  Essentially what these states follow is something called the “one bite rule.”  The first time a dog bites someone, the dog owner is not actually accountable for that because the idea goes that the dog had never bitten anyone before so the dog owner had no reason to suspect that the dog might bite someone so, therefore, they haven’t  breached their duty.  Their dog had never bit someone before so the owner had no reason to believe that their dog might bite anyone and so they had no reason to take actions to prevent the dog from biting someone.  In Utah, we don’t subscribe to that nonsense.  If you own a dog and your dog bites someone, in Utah you are strictly liable for the damages caused by your own dog. It will not be hard to prove liability in that case.

Strict liability also generally applies to ultra hazardous materials.  For example, say you are in the business of working with dynamite in some capacity or you work in a chemical plant where you are generating extremely toxic and deadly chemicals and poisons.  In those type of activities even without showing that the person was careless or negligent in any way and they didn’t breach any standard of care, even if they met their industry guidelines and handled those materials in an appropriate way, if someone is hurt because of those ultra hazardous materials, often times strict liability would apply and the people in charge of those hazardous materials would be legally responsible and liable for the injuries resulting to other people.  They could be liable even though they were not careless. Again, sometimes it may be quite simple to prove liability in a Utah dog bite case.

Standard Negligence, Negligence Per Se, Res Ipsa Loquitur and Strict Liability are the four ways to prove liability in a personal injury case in Utah.

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Did the Car Accident Really Cause the Injury?

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Did the Car Accident Really Cause the Injury?

6 Major Factors of Causation

Causation is an element in a personal injury case.  Insurance companies love to point the finger at everyone but themselves. They will search for any reason to argue that your car accident did not really cause the injury. Causation means the causing of an event.  In a personal injury case, you must connect the dots between a careless act of one person and the injury of another.

Did your car accident really cause the injury?

6 Factors of Causation: Did the Car Accident Cause the Injury?

#1 Mechanism of Injury

The first factor of causation that is considered is what is called mechanism of injury.  What that means is that in any type of personal injury case there were forces that were involved in hurting this person.  In a car accident, the key indicator of the mechanism of injury is typically property damage.  For example, you can make an assumption in a car accident, where the forces are strong enough to damage property and likely injure a person inside of the vehicle.   For example, let’s say a truck runs into a small sedan and knocks it over on its end, completely smashing it in on every side.  The truck had run a red light and struck the sedan while traveling at over 60 miles per hour and completely caves in the vehicle.  It is a total loss and there is no way possible to ever repair that vehicle again and it was a new vehicle.  It was worth over $20,000 and the damages were excessive.  Well, if there were people in that car when that impact occurred, it is reasonable to assume that they might be hurt.  Their bodies may have suffered injuries because of the mechanism of injury, the forces involved in that collision are enormous.

In contrast of that, if you have a case where, let’s say, that the victim is in a very large truck but the at-fault party is in a small sedan.  The small sedan is slowing to stop behind the truck at a red light but doesn’t quite slow down quick enough and just barely taps the back of the truck with the sedan’s front bumper.  In fact, the bump made contact so softly that no property damage is even visible to the eye.  The car is taken to an auto body shop and the owners are told that there is no damage. There was just a minuscule scrape that could be buffed out with a finger but it’s going to cost zero dollars in order to repair it. In those cases, the mechanism of injury is tiny.  It’s very small, so you assume that the people in the vehicle are uninjured. This assumption seems likely, however, those assumptions can be wrong and often are.

Sometimes in big crashes people miraculously walk away unscathed.  For whatever reason, they don’t suffer any type of injury or have any lingering issues from them and don’t require any medical treatment. But then sometimes, in relatively minor accidents, people do sustain injuries that cause them pain for prolonged periods of time.  A lot of that depends on the condition of the person at the time of the accident.  Such as the way their body was positioned when the accident occurred as well as their age and physical fitness level.  Also whether they were expecting the impact at the time of the crash and if they were wearing a seatbelt.  All of these are factors that would affect how the impact affected them.  There are all kinds of factors that can change the outcome.

#2 Egg-Shell Plaintiff

Another scenario that can change the outcome is the second factor of causation.  It is something that is called the eggshell plaintiff rule.  It is also known as the egg-shell skull rule.  What that means is a tortfeaser, someone who commits a wrongful act that injures another person or the defendant in a personal injury case, has to accept the condition of the person that they injured at the time of the accident.  What that means is if someone runs a red light and runs into a car, they don’t know when they make that careless mistake, whether the person they are about to strike is a very fit body builder with a clean bill of health who might be less likely to get hurt or not.  They don’t know if it is an elderly woman who has had problems in the past with her neck. Maybe she had a fusion or some type of major surgery on her neck only a week ago and now even hitting her softly might rupture her fusion and cause her extreme amounts of pain and enormous medical bills in order to get her back to the condition that she was in prior to getting hit by the car.  So that victim, the older woman in this scenario, is considered an eggshell plaintiff.  Meaning that her body might be more susceptible to injury than somebody else that was in healthier condition.  But that doesn’t mean that the negligent driver is off the hook and doesn’t have to pay for her medical bills and make her whole.  In other words, the defending insurance company has to accept the condition of the victim as they find them.

#3 Pre-existing Injury

The third factor in determining whether the car accident caused the injury is something called pre-existing injuries.  This is a major factor in auto accident cases.   Eggshell plaintiffs, or fragile plaintiffs, that are susceptible to injury, are  often times that way because they have pre-existing injuries.  This is not always the case, but often it is.  If their low back has been bothering them for years, it is likely that if you hit them their low back is going to get worse because they already have a problem there.  Those pre-existing conditons can become huge battle grounds because an insurance company might argue that, “Well, their back hurt before the crash and then our client hit them and his back still hurt. Therefore our client didn’t cause the injury, therefore we don’t owe them any money.”

But on the other hand, a personal injury attorney that is arguing for the victim’s side and trying to protect their rights will argue that because this person had pre-existing low back pain, their back was susceptible to injury.  They were an eggshell plaintiff under Utah law and by hitting them, their back injury was actually aggravated or exacerbated in some way.  Their injury was made worse, therefore you did cause their medical condition to become more serious and you are responsible to make them whole.   With this factor of causation, their injury was, in fact, caused by this accident.

Now this often hinges on two things.  These two things are whether they have no case because of a previous injury or they do have a case because they are considered an eggshell plaintiff.  The biggest factor there is, was there ever a period of being asymptomatic (not exhibiting symptoms)?  The victim could be a person who has maybe had a back problem in their past but for the last two years before the car accident they have had zero problems.  No pain and no medical care. They are fine.  Whatever stuff was in their past is in their past.  They are doing better but they might still be susceptible.  They were asymptomatic but susceptible and when they got hit, their old injuries may have flared up and become much worse and are now causing them serious amounts of pain.  That person would be compensated or should be compensated under the law.

Whereas the opposite of that would be someone who is having active symptoms immediately prior to the crash.  They were already receiving medical care.  Now those people, if the new injury from the crash makes their symptoms worse, are entitled to recover expenses and damages for the amount that their condition was exacerbated.    However not for the full amount of their pain, because they already had pain, but just for the amount that the pain was made worse. Whereas if they were asymptomatic, the car accident would be the cause of all of their future care.  Even if they have a history of previous problems in that same area.  So as you can see, this type of factor of causation can be quite difficult to sort out.  A claimant in this sort of case would certainly benefit from the experience of a qualified personal injury attorney. Determining causation is obviously a much more legally complex issue than is eluded to in this article.

#4 Other Events Before Your Crash

The fourth factor in determining whether the car accident caused the injury is to consider other events before your crash.  Sometimes a pre-existing injury might not totally bar your case but if you are involved in a pre-existing car accident that may make things difficult.  Let’s say that you are in one accident and then the next month you are in another one.  If the first accident was a bigger crash and caused injury and then the second one was smaller, it’s going to make it more difficult to recover on the second case because the insurance company is going to point at the first case.  They will claim that your injuries were pre-existing from the first accident if they can possibly prove that in fact is what happened.

#5 Other Events After Your Crash

The fifth factor in determining whether the car accident caused the injury is: other events after the crash.  An example of this would be when a claimant is hurt in a car accident but then they participate in other activities that could potentially cause injury or harm.  Perhaps they go boating and get on a tube and somebody whips them off the tube and they go crashing off the tube at a high speed.  Their body is jarred violently and suddenly their injuries are much worse.  Now the fact that this activity took place after the crash becomes a very relevant factor as far as the issue of causation in the personal injury case. The at-fault insurance company could claim that if the claimant was ever really hurt in the accident they would not have participated in such an activity.  This may or may not be true but the fact remains that the severity of the injury and it’s causes will need to be sorted out.

#6 Gaps In Treatment

The sixth factor in determining whether the car accident caused the injury is: gaps in treatment.  That is if you stop seeing a doctor.  Let’s say that you see a doctor regularly to receive treatment for a few months after an auto accident and then you are feeling a bit better, not all the way better, but improved enough that you decide you just want to give your body some time to heal.  So you take a break from seeing the doctor for a bit. The problem is, any gap in treatment, maybe for more than a month or two, causes the insurance companies to raise their eyebrows.  They might question it and say, “Well, if this person was truly hurt, they would have continued to go to the doctor. They haven’t seen a doctor for several months and now they show back up at the doctor and they suddenly need an MRI or maybe even need surgery?”  Well, sometimes waiting and giving your body some time is part of the natural progression of healing. Reasonable people might wait a little bit in between medical treatment as they try to figure out what is wrong with them and they try to get better with the most conservative, least invasive measures.  However, when those gaps between medical treatment become too big, that’s when it comes back to bite you.  It is called a gap in treatment and an insurance company will argue that any medical bills that were incurred after the gap were not caused by your car accident.

Those are the six factors of causation.   The first four factors that were discussed in this article are somewhat out of one’s control.  They are just the circumstances at the time of the accident.  The last two however, events after the accident and gaps in treatment, can be controlled by the injured party.  If you are involved in an accident where you sustain an injury, it would be wise to avoid activities that may lead to further injury until your case is settled if at all possible.  Also being aware that large gaps in receiving medical treatment could raise concerns will help you make informed decisions about when you see your doctor.  Your attorney can help advise you in these areas.

What a personal injury lawyer can and can not do

5 Things Personal Injury Lawyers Can’t Do

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5 Things Personal Injury Lawyers Can’t Do

The purpose of this article is to discuss some ethical violations that apply to attorneys.  The state of Utah, as does every state, has rules of professional responsibility.  What they are is codified rules about what an attorney can or can’t do.  There are just some things personal injury lawyers can’t do. If an attorney breaches or is in violation of one of those rules, they could be subject to a bar complaint and discipline from the state bar.  This discipline could be up to and including disbarment, being put on suspension, losing their license, or facing criminal charges.

Things personal injury lawyers can't do

Ethical Violations – Things Personal Injury Lawyers Can’t Do

Take on a Case With a Conflict of Interest

One of the things personal injury lawyers can’t do is take a case with conflicts of interest. According to the American Bar Association a conflict of interest exists “if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.” The key is whether the lawyer’s exercise of independent professional judgment is likely to be unduly influenced by other interests.

It is very important that an attorney’s goals and incentives are in line with the clients.   When an attorney takes the initial phone call from a potential client, the attorney needs to screen that call for potential conflicts of interest.  What that means is they compare that client with current and former clients to make sure that they don’t have an interest that’s adverse to that of this new client.  Certain rules apply to former clients and more stringent rules apply in this type of situation with current cases and new clients. The reason for these detailed, specific rules is to provide specific guidelines of what an attorney can and can’t do while staying within the parameters of the law when dealing with conflict of interest.

Clients need to be able to trust that their attorney is making crucial decisions and acting in their best interest.  You want the client to be able to consider that the attorney is an extension of themselves handling the case.  They are hired because they will give the case personal attention and they know the law.  They expect that they will be open and honest and rely on the attorneys counsel and not have to second guess whether the attorney is just it in for himself or for some other client.

An example of conflict of interest would be if a client was seeking damage from a medical provider because of a mistake the doctor made in surgery that caused serious complications for the client.  While discussing the matter during an initial consultation with an attorney the client disclosed that name of the physician.  At this time, the attorney realizes that he is currently defending that same doctor in another case.  This would be conflict of interest and the attorney could not accept this new case.

Conflict of interest also needs to be avoided within a law firm.  Meaning two lawyers at the same firm could not represent opposing sides.  Another example of conflict of interest would be an attorney acting as a witness in a case where he is also representing a client.  An attorney is also not allowed to be involved in any business transactions with a client.

A client that is shopping for an attorney can ask questions of the lawyer during the initial consultation that will reassure them that there is no conflict of interest.  Questions such as , “Do you have a conflict of interest with my case? and Does your law firm use software to monitor your conflict of interest exposure?”  Sometimes it is difficult for an attorney to recall all prior clients and there has been a software developed now that aids them in determining any potential conflicts within their firm.

Under the Model Rules of the ABA, an attorney could still represent a client as long as the client is aware of the potential conflict of interest and the client signs a written consent to the representation.  In addition the lawyer cannot be representing opposing sides of a case at the same time.   It also has to be reasonable to believe that the attorney can handle both cases at the same time.  However, even though there are exceptions to handle conflict of interest circumstances, most attorneys will try to avoid potential conflicts because if something goes wrong it could cause malpractice litigation against the attorney and/or the firm.  They would not want to knowingly risk their reputations because of a conflict of interest.

Loan Client’s Money

Another of the things personal injury lawyers can’t do is loan clients money. Personal Injury Attorneys are allowed to front the costs of litigation and litigate cases on a contingency fee basis.  This means that no fees will be collected by the attorney unless and until the case has reached a settlement and the client receives an award.  but as far as loaning the client money or paying a bill for them before the case is settled, that is against the law.

Sometimes during the course of a case, particularly in the personal injury field, you may have a client who is out of work and has medical bills mounting and is short on cash.  As discussed in another article, the third party liability carrier will only pay out once at the end of the case so sometimes to address that gap in the meantime in may be tempting for an attorney to help a client.  It might seem harmless to give them loans or to pay bills for them out of the attorney’s pocket or things of that nature.  Those things are ethical violations that are not allowed.  The attorney can help the client to find someone that can provide similar services if necessary and that is okay to do.  If a short term loan becomes the choice of the client, they should be aware that those types of loans usually carry very high interest rates and extreme penalties if payments are late.  The decision to take out loans and the repayment of them are the sole responsibility of the client.

In situations where a medical provider is growing uncomfortable with a rising balance on a patient’s account but the patient still needs more treatment, the attorney can offer an attorney lien.  No transfer of money takes place with the agreement, rather the attorney provides an agreement to the doctor stating that as soon as the settlement comes in, the doctor is in position to collect and will receive payment.  This reassures the doctor and the patient can still receive the needed medical care.  When the case settles if the award is not enough to pay all of the medical bills, the balance of the bills are still the client’s responsibility.

Guarantee Success

The third of the things personal injury lawyers can’t do is guarantee success.  On a personal injury case where it is taken on a contingency fee basis, where nothing has materialized, and it’s a civil litigation matter, the attorney’s are not allowed to say something like “I guarantee 100% that you will win this case.”   That would be a very careless comment to make because nothing in the field of law is a guarantee.  There are always potential risks.  Even if the attorney is confident that the case is strong, an explicit guarantee could be an ethical violation.  An honest, experienced attorney would not make this claim.  There are always unknown factors and circumstances that impact the case in many ways.  Of course, a good attorney will do their very best to win their client’s case, but they cannot predict the future.   Personal injury attorney’s often operate on a contingency basis meaning that they only get paid if and when the case is won.  Rest assured they do not want to take on cases where winning is unlikely.  They would much rather advise the client that their case is weak and save everyone a lot of stress, time and money. The lawyer should be candid with prospective clients and advise them of what they are up against and be honest and upfront about the attorney’s own credentials and prior experience in cases such as theirs.  Armed with this information the client can make a decision about hiring the attorney or not.

Divulge Private Information

The fourth of the things personal injury lawyers can’t do is divulge private information.  This may be the very most important thing that a personal injury attorney can’t do.  It is very important that the client feels like they can be open and honest with their attorney and their trust will not be betrayed.  Also that they won’t have secrets divulged.  A personal injury attorney or any attorney for that matter, when they engage in a conversation with a current client or a potential client that is seeking legal services and that is the reason for the conversation with the attorney, the attorney can not divulge that information to a third party.

There are exceptions to that rule.  For instance when there are other people in the room then that privilege may be potentially destroyed.  But any private communications between attorney and client must remain private.  Obviously, just like with most any rule there are exceptions to that rule but in large part it is a pretty secure rule that what you tell your attorney is not going to get divulged.  This is referred to as client privilege.  That’s because it is the client’s privilege to divulge conversations between them and their attorney but the attorney cannot reveal anything discussed in that same conversation unless the client provides written consent.  This law allows the client to divulge all details and circumstance to the attorney so they can provide adequate and fitting legal representation.  It also prevents the attorney from being called as a witness against his own client.

Go Against the Interest of the Client

The last of the things personal injury lawyers can’t do, that we will address in this article, is that an attorney can’t  misappropriate the client funds.   It is a big deal to be a steward over the money that comes in for a client.  It is common for a personal attorney to handle all of the funds from a settlement.  Quite often a final settlement comes in as one check and out of that amount, the attorney goes through and pays medical bills that are outstanding so that the client is not sent to collections, resolves the attorney liens, pays the legal fees and typically a net check will be cut to the client.  That is their money to keep after the other things have been resolved.  The goal of a good personal injury attorney is to get that net settlement to as large of an amount as possible that is fair and reasonable under Utah law.

Unfortunately, there have been incidents in the past of attorneys misusing a settlement fund by not giving the client their due amount or not dispersing the funds in a timely manner.   These cases are extremely rare and the penalties of this type of behavior would be severe.  Handling money is a big duty and it’s something that attorneys take very seriously.  Wise attorneys complete all of the necessary transactions at the close of a settlement as quickly as possible and get the remaining amount into their client’s possession in a short amount of time.

The legal profession has many laws and rules in place to protect clients and attorney’s from situations that could cause potential harm or affect the outcome of a case.  The relationship between a client and attorney should be based on honesty and integrity.  This type of relationship allows for optimum communication and also allows the attorney to do his best to represent the client’s case.  A client should feel comfortable asking any questions of their attorney and receiving answers that are acceptable and clear.  The laws regarding the items discussed in this article may vary from state to state and your attorney will be able to address any concerns or questions that you may have.

anthony mcmullin

6 Tricks to Get Medical Bills Paid After a Car Wreck

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6 Tricks to Get Medical Bills Paid After a Car Wreck

Having trouble getting your medical bills paid after a car wreck? One function that a personal injury attorney and their staff will serve for you as they represent you as an injured victim is that they will worry about all of the bills and collection matters so that you don’t have to.  They are not only there to get you more money in a settlement or a lawsuit but they are there to ease the burden of stress on you so that you can get better.  They are tracking the bills and insurance matters for you.  Behind the scenes they are going through a pretty intensive process to be sure that the right people are paying your bills in the right order to prevent any of the bills from going to collections.  This is necessary because you only get a check from the at-fault party or their insurance company at the end of the case when it is closed.  But you can’t resolve the case until you know what it is worth. And you can’t know what it worth until the victim is feeling better.  Sometimes that leaves an injured victim seeking treatment for what could be years before the case is resolved and a settlement is reached.  The question then becomes how does the victim pay those bills and survive during those couple of years when the bills are stacking up.  Medical care can be extremely expensive so this is a major concern.

Work Comp

Having trouble getting your medical bills paid after a car wreck? One of the first things your attorney’s staff will check is if your injury is work related.  If you were injured while on the job you not only potentially have a case against a third party but you also have what is called a worker’s compensation claim.  When you are hurt on the job the work comp insurance is actually the primary payor.  It will be the first insurance to kick in and handle medical bills related to your injury.  So the workman’s comp insurance needs to be notified and you need to be issued a claim number.  Then all of your bills can be sent directly to them.  These types of cases are fairly rare but nonetheless are a possibility that needs to be considered.

PIP

Typically, with most car accident cases, there is no work comp carrier but there is PIP or personal injury protection.  PIP insurance is a coverage on your auto insurance policy.    This coverage is required by law to be on every auto on the road.  This insurance is the first coverage that is responsible for medical bills that are the result of an injury sustained in a car accident.  For instance when someone is injured in a car accident the ambulance might take them to the emergency room for treatment.  There may be small,  out of pocket expenses like pain meds that were prescribed by the emergency room doctors.  These charges would be paid by the PIP coverage of the owner of the vehicle that the injured person was in.  Even if that vehicle was not driven by the at-fault driver.  These initial bill payments will be reimbursed later by the at-fault insurance company.  This enables everyone to seek needed medical attention without waiting to figure out who is at-fault and who will be responsible for the bills.

The PIP coverage works on a first come, first serve basis.  Meaning that the first medical bills to be processed through the PIP will be the first ones to be paid.  Sometimes that may not be the first medical services that were rendered after the accident.  One medical facility just may be faster at submitting the bills for payment.  An example of this would be if a patient went to the ER first after an accident but then received treatments from a chiropractor for two months after the accident.  If the chiropractic physician’s billing staff is faster at getting that bill turned in for payment than the hospital, then the chiro will be paid first.  This is important because once the PIP limit is reached, which is usually $3,000, then those funds are exhausted.  At this point any further bills will be denied payment by the PIP coverage and will need to be paid by another source.

When this happens the insured will receive a log of PIP in exhaust.  This log will show who was paid and in what order they were paid and the amount they received.  This will aide you in tracking where the money went and help you prove that the PIP money has run out when you are trying to get your medical bills paid after a car wreck.

Medicaid

After the PIP insurance has been exhausted then another means will need to cover the medical expenses.  The victims health insurance will be next in line to pay the bills.  Medicaid and Medicare are both government entities that provide health insurance benefits.  They are health insurance programs for low-income individuals or people with various disabilities that meet certain criteria in order to qualify for those medical benefits.  Medicaid is generally for people who need low-cost medical care and are unable to afford it and Medicare is for people over the age of 65, senior citizens.

Your attorney and his/her staff are required to put Utah medicare and Medicaid on notice of the fact that you have been injured as the result of the negligence of another.  That way Medicare and Medicaid can actually see your bills come in and not pay them.  They won’t pay them until they see that the PIP has been exhausted.  The PIP needs to pay and run out first.  Once that has run out your attorney’s office will need to track that fact and provide a PIP exhaust letter to Medicaid or Medicare and then begin informing debtors, the various medical providers, to bill Medicaid or Medicare next.  They will then go ahead and process those bills and pay them.  So to reiterate if Medicaid or Medicare receives a bill and they are aware that it relates to an injury that resulted from an accident, they will deny it.  They will do this until they receive a PIP exhaust notice.

Health Insurance

There is also private health insurance.  They deal largely in the same way as Medicare and Medicaid except for some of laws don’t apply.  They still need to be put on notice that some of the bills coming in will be related to an auto accident.  This is because when they pay the bills that are related to an auto accident caused by someone else, then later when they discover that the injuries were in fact due to a third party case, they may attempt to subrogate against your personal injury settlement.  What that means is they will pay those bills but they are going to want that money back.  So in the end, when you are in a car accident, health insurance really just serves as a short term stop gap that helps you get from point A, the accident, to point B, getting the money from the third party auto insurance carrier.

Some people might say, “Why does my health insurance even pay? They are just going to get their money back, that doesn’t even help me.”  That’s actually not true.  They become a huge help to you in multiple ways.  #1. You don’t get sent to collections while you are seeing doctors and waiting for your settlement.  #2. Health insurance normally gets huge discounts, contractual write-offs.  An example of this is if your emergency room bill is $1000.00, they will bill your insurance company this amount, but the health insurance might only pay $700.00.  Then what happens is when the health insurance goes to subrogate against your third party personal injury settlement, often times your attorney may be able to negotiate some type of reduction.  So let’s say your attorney is able to negotiate a reduction of roughly one third.  That will take that $700 down to below $500.   Now even though you’re going to be getting $1000 as part of your personal injury settlement, you only owe your insurance a portion of that.  This is because the third party insurance carrier is not entitled to the same discounts that you get.  They don’t get to pay less just because you were smart enough to have health insurance.  They have to pay the full amount as if you have no health insurance. The health insurance becomes a windfall to you.  So if the at-fault insurance company pays $1,000 and you end up having to pay back your insurance only $500, then you just netted a significant amount of money in your pocket that would not have been there but for the health insurance that you were smart enough to have in place at the time of the accident.

Attorney Liens

The next thing that comes into play is what’s called attorney liens.  Once you have gone through answering the questions, Is there work comp?  Is there PIP?  Is there Medicare or Medicaid? What about private health insurance? , then you look into attorney liens.  Attorney liens are what you do when you have nothing else that will pay.  When you are represented by an attorney often times medical providers feel ok and comfortable if the attorney will sign a document granting them a priority access to your injury settlement if and when the case resolves.  The ultimate responsibility to pay those medical bills still remains the obligation of the victim.  However, the attorney lien allows the doctor to treat you but then not demand a partial payment at the visit and then the balance in thirty days which is typical in the medical field.   ,  they charge you the amount and create your bill but they just record it and put it in your file.  Then they wait.  They don’t bill you. They don’t send you to collections.  They don’t create problems for you and they continue to provide you with medical care on a regular basis.  They continue to provide the care that you need because they feel confident that their bill will get paid in full because your attorney has provided a lien in their behalf.  They will be paid at the same time that you receive your portion of the settlement.

This option enables people who maybe don’t have health insurance or they are seeking medical care such as chiropractic care or massage therapy that their health insurance does not cover to get the care that they need.  The attorney lien would also be helpful in the event that the victim’s health insurance deductible is very high and they don’t have the money to cover the bills out-of-pocket.  These attorney liens can be a huge deal in allowing you to get the medical care that you need.  At the end of the day if you can’t get the medical care that you need, no matter how hurt you are, your case is worth very little.  The opinions and records of the medical doctors are what change the value of the case.  So it is important to be able to access the right type of medical records in order to treat and document your injuries.

Out of Pocket

The last option to get those medical bills paid while you are waiting for your settlement is your own out-of-pocket expense.  Sometimes situations may arise where you have exhausted every single one of the above avenues.  PIP,  work comp,  Medicaid or medicare,  private health insurance, and attorney liens and there might be one bill, or one provider, where none of those things are going to work.  But you need to see them.  This type of situation would be the only time that an attorney would ask the victim to pay out-of-pocket expenses as they go.  Obviously, no one wants to be sent to collections while you wait for a year for your case to settle.  However, we try to track every dime spent by that victim and at the end of the case the victim is going to be reimbursed for all of those expenses.  It will all come back to you if the case goes well. Good luck getting your medical bills paid after your car wreck.

Those are the six ways or tricks to get your bills paid while awaiting your personal injury settlement.

top 5 reasons you should hire a personal injury lawyer

Top 5 Reasons You Should Not Hire a Personal Injury Lawyer

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Top 5 Reasons You Should Not Hire

a Personal Injury Lawyer

This article might come across as facetious and sarcastic. If it doesn’t . . . it should. Please forgive us for being a bit tongue-in-cheek. The sad truth is, we actually hear misinformed people make these arguments with a straight face.

#1 It’s Greedy

You should not hire a personal injury attorney because it is very greedy.  I mean after all,  if you got hurt because someone else made a mistake while driving, you should have to bare the brunt of that cost and deal with that.  So what if your life is ruined? If you are missing work and incurring large stacks of medical bills that is your problem.  There is no need for you to be greedy and go out and hire a personal injury attorney.

#2 You Can Do It Yourself

After all, if your pipes break in your house, you go in and fix your plumbing yourself right?   You just figure it out.  I am sure that there is nothing that an attorney might know about the legalities of your personal injury case that you don’t know already.  Besides, the court system is designed to be extremely simple.  So simple that anyone can just figure it out and things will work out just great.  You can go ahead and do it yourself and it shouldn’t cost you anything.  You are probably quite capable of getting more money than the people who have spent eight years going to school in order to learn the skills in order to get this done for you. So have at it!

#3 Insurance Companies Want to Give You Their Money

This is evidenced by the fact that insurance premiums are so low and that they are always so pleasant to deal with.  In fact, the insurance companies that want to give you the most money are the insurance companies that you don’t even have a relationship with.  The very companies that are actually defending the person that hit you are the ones that are the most eager to pay you money.  I’m sure that you will have a very pleasant time with the insurance adjuster who will be very honest and forthright and will want to pay you the maximum amount that they can get away with.  I’m also quite sure that their company won’t mind and that they don’t have any bonus structures in place that incentivize the adjusters to pay you as little as possible.

I mean any interactions that you have had with insurance companies in the past has probably proven this to you.  They like to charge very little and pay out as much as possible.  That is the business model they have used to be successful for so many years.

#4 Lawyers are Liars

I have heard that when attorneys are licensed by the bar of the state they practice in that they have to go through a very intensive and invasive character and history research check off.  This is where their past is thoroughly looked into.  Everything in their life from a minor traffic infraction to any type of impropriety whatsoever.  Their entire employment history, their entire educational history are thoroughly researched and only when they pass this rigorous background check are they able to be licensed in their state.  Any acts of dishonesty can and likely will result in the attorney being disbarred and they will be unable to practice law.  They will be unable to earn a living in the field that they have spent several years of their life going to school for.  They have spent several hundred hours studying for the state bar exam in order to pass.  They have put themselves through heck and paid a lot of money to do so, but they will lose their ability to practice their profession.  They may have to go back to selling shirts at a clothing store in the mall.

But even though they have had to pass all of those high ethical standards and they know that they are under constant threat of being disbarred for anything that they do that is dishonest and that in fact, an attorney’s requirements for honesty are higher than any other possible profession that there is, in spite of all that, I am convinced that lawyers are liars because I have seen it on television.  I have seen billboards in Las Vegas featuring fake smiles with bleached teeth on very muscular lawyers who look like liars.  They basically look like used car salesman in suits.  They are pirates.  I have heard stories my whole life about how lawyers will just try to rip me off and so I am sure that lawyers are liars.  I am also sure that you should be sure of that as well.

#5 It’s Not Neighborly

The fifth reason that you should not hire a personal injury attorney is because it is not the neighborly thing to do.  By hiring an attorney, you are just ruining a relationship with some poor person who has hurt you and caused your life major problems.  Why would you do that?  Yes, that person might have insurance that will pay for any damages that you have incurred.  Their insurance policy is there and intact whether you use it or not, but it is still not neighborly.  You should not cause anyone any stress just because they may have hit your car and tipped over your entire family with their dump truck.  This does not mean that you should make a claim on their insurance policy.  You should just suck it up and give them a warm embrace and not do anything about it.  No matter what you say to them I am sure that they are not going to understand if you need to make a claim on their insurance.

You know some people might think, “Hmm, to me it seems like the unneighborly thing to do would be to be responsible for hurting someone else and their family and then not offering to make it right.  It is unneighborly to not  live up to one’s mistakes and fail to make someone that you hurt whole.”  But I disagree with that.  I think that it is not neighborly to make a claim on someone’s insurance.  People should just be allowed to do what they want.  They can hurt people and not have to be accountable for it.  Nobody likes accountability, it’s just not very fun.

So those are the five reasons that you should not hire a personal injury attorney.

McMullin Injury Law serves clients throughout Southern Utah. This includes St. George and Cedar City.