Dedicated to Helping Injured VictimsA firm well-known for their successful work & million dollar verdicts.
Frequently Asked Questions
By Steven M. Burris, Esq.
How long will a personal injury case take?
A few years ago, I did a study of the cases in my office over a five-year timeframe. The median time for a case to be settled was about nine months after the injury-causing incident. In other words, half of our cases were settled within nine months of the client retaining us; the other half of our cases took longer than nine months.
However, there are many variables that affect the timeframe of an injury case. Examples of these variables include:
- The type of case: Generally, auto accident cases are settled more quickly than other types of cases.
- The length of treatment of injuries: It is usually not a good idea to settle your case until you are done, or at least mostly done, with medical treatment.
- The amount of money that is at stake: The more money that is at stake in an injury case, the longer the case will take to settle for adequate compensation.
It’s important to note that some types of personal injury cases have priority in court. In Las Vegas, priority is given to cases involving medical malpractice and to cases involving plaintiffs who are 70 years of age or older. Additionally, cases in which the maximum damages are less than $50,000 go through an expedited court system. Personal injury cases that go into federal court generally take longer than those in state court.
If a lawsuit is filed (and, typically, we try to settle cases without filing suit, but this is not always possible) and if the case falls in the under $50,000 category, we are probably talking about a timeframe of 4 to 9 months from the date of the lawsuit being filed to the date the case is completed. If the lawsuit is filed in state court and is worth more than $50,000, we are probably talking about a timeframe that is more in the 12 to 18 month range, from the date the lawsuit is filed to case completion. Unfortunately, sometimes cases can take even longer than this, particularly if the case is in a judge’s department that has a lot of other cases pending. Generally speaking, the older cases in a particular judge’s department get priority over the newer cases. The judge will go by the filing date of the complaint to give priority.
We know that clients want their cases to be settled as fast as possible, as long as they receive a fair amount of money. This is also what we want, because we are working on a contingent fee basis, and we do not get paid until the case is settled. However, sometimes you have to show the insurance company that you are willing to fight, or else they will not pay you a fair amount.
There are some lawyers who advertise on television quite a bit who never go to court. The insurance companies do not pay the same amount of money to these law firms that they pay to law firms that do go to court frequently. Many lawyers claim that they go to court a lot, but in reality, they rarely step into the courtroom. Unfortunately, there isn’t really a way for a layperson to find out which attorneys go to court and which attorneys do not. The two methods I would suggest for a layperson is to first see if the lawyer has an “A” rating from Martindale-Hubbell; second, see if that lawyer is a member of the American Board of Trial Advocates (ABOTA).
Do I really need a lawyer or can I handle the case myself?
Many people think that if they do not hire a lawyer, the insurance company will give them credit for being a really good person, and will settle with them fairly. Unfortunately, in reality the opposite is usually true. The insurance company will think you are “fresh meat” if you don’t hire a lawyer, even if they do not say so outright to you.
Because of all the bad publicity surrounding lawsuits, many people feel squeamish about hiring an attorney, because they don’t want to be perceived as the type of person who likes to sue. Again, this is a perception that is created by insurance companies. In reality, in over 40 years of law practice, I have probably met only one person who I would say likes to sue. The people who truly like to sue are certain businessmen and big companies that use courts as weapons against “little guys”. Percentage-wise, the number of lawsuits filed every year are mostly businesses vs. businesses or businesses vs. individuals. Lawsuits involving people vs. businesses and people vs. insurance companies are a minor percentage overall.
However, it is true that if you hire certain “joke” attorneys (you probably know who I am talking about), you are probably better off representing yourself, but this is not the case if you hire a “real” attorney.
If you wait to hire an attorney, the insurance adjusters will get release authorizations and take recordings from you, and ultimately this will hurt your case. They can use the release authorizations to get all sorts of information, including credit card printouts, phone records, old medical records, emails, etc. Also, if you make a settlement demand to them on your own, they will conclude that is the most money they will ever have to pay on your case.
The majority of the time, people who come to me after they have unsuccessfully tried to represent themselves for a few months will have “botched” their personal injury cases so much that I cannot save them. They will not even know what they have done to “botch” their cases because the insurance companies are very clever about leading them along.
It’s very simple; why don’t the insurance companies just pay?
Just about every client I have ever represented asks this question, or some version of it, at some time. In their mind, they truly think that their personal injury case is “very simple”, and resent the fact that they have to go through litigation to prove something that should be obvious to all. Many times, they have a legitimate gripe. But, most of the time, there are numerous issues in their case that are not simple, legally, and insurance companies are experts at making everything seem complicated. Insurance companies also know that time is on their side, and they try to delay everything as long as they can. Most companies invest their reserves in the stock market, so the longer they can sit on their money, the more they can earn profits. I have noticed that when the stock market is going down on a long-term basis, that is when the insurance companies seem to be more amenable to settling.
You need to keep in mind that insurance companies are not in the business of paying out money. They are in the business of making profits. They do not care about you one way or the other. You are just another number in their computer. (Interestingly, many of the big insurance companies are not even owned by Americans anymore.)
I want the insurance company to know that I’m not the type that likes to sue. Can you let them know that?
The majority of people who come to my office seem compelled to tell me that they are “not the type of person who likes to sue”. They say this because the insurance industry has put out a lot of negative publicity that portrays legions of conmen setting up accidents, stories about crazy people filing lawsuits for no reason, etc.
As mentioned above, the actual people who “like to sue” are businesses that use courts to bludgeon competition, or to chisel on contracts with subcontractors, etc. Percentage-wise, the number of lawsuits filed by “regular people” against insurance companies and big corporations is relatively small.
Insurance companies check out everyone through very sophisticated databases. It shows whether you have filed lawsuits or made claims in the past. If you have not, they will know this without being told.
If you have an attorney that is willing to sue, go to court, and go to trial, this will give you a better settlement. If the insurance company thinks you are afraid to go to trial, for whatever reason, then they will give you less.
Will other people know that I am filing a personal injury claim?
Understandably, many clients feel that personal injury cases are private business and do not want other people to know about their legal matters.
If you do not file a lawsuit, then there is no public database from which ordinary people can find out that you have a claim. The insurance companies do maintain their own inter-company databases, however, which will let insurance companies know that you have filed a claim; but unless you work for an insurance company, you would not have access to this database, which is known as “ISO” or “index bureau”. The diagnosis codes that doctors or hospitals use on the medical records or bills may have information that would let a health insurance company deduce that you had an injury claim, but again, this would not be “public” record.
If you did file a lawsuit, then there would be a public record that you had sued someone available online, if somebody knew how to access it. But, details of your case are generally not published; settlements are, with rare exception, confidential. If your case involved potentially embarrassing facts, you can ask the court to seal the embarrassing part of the record from public view.
How much do you charge?
Like almost every Las Vegas personal injury attorney, our team at Burris & Thomas, LLC uses a contingent fee basis. If we settle your case out of court, our fee is one third of the settlement, or 33%. If your case goes to court, our fee is 40%. (Those lawyers who claim to charge less generally have some ‘trick’ in their agreement that raises the fee to these levels.)
We also wait to reimburse ourselves until the end of the case for our costs advanced, which are usually small if the case is settled before suit; the costs are higher if we have to hire a lot of expert witnesses and litigate extensively. With rare exception, in cases not involving extensive litigation, we will reduce our fee in cases where, to do otherwise, would make our fee greater than what the client ‘clears’.
In cases that do not go to trial, you must sign the settlement agreement before the insurance company will pay. In such cases we will give you a ‘breakdown sheet’ before you sign the release, and this will show you all the charges. In this way, you will know before signing the release just how much we get, you get, etc.
Who do I see for medical care?
Even with Obamacare, a lot of our clients do not have adequate health insurance, and so must go to doctors who will not charge them out of pocket. Even with clients who have health insurance, it is usually the case that their primary care providers do not want to have anything to do with accident cases (which require a lot of paperwork, and possibly testimony in court), and so they need to go to doctors who will not charge them out of pocket and will not mind doing the extra paperwork for an accident case.
Doctors who see accident clients and wish to be paid out of the settlement are working on what is called a “lien” basis. They see the client in return for a promise to be paid when the case settles. Most Las Vegas doctors who deal with trauma on a regular basis as part of their practice are willing to take liens from my law office.
If you have your own doctor and their office is willing to do accident cases, that’s fine. But these days, most people who have health insurance don’t even have a regular doctor; instead, they are assigned to a clinic, and usually see whatever nurse practitioner is on the schedule to work that day.
I have been handling personal injury cases in Nevada for over 40 years. Most all of the health providers in Las Vegas who commonly treat trauma related issues will accept liens from my office. Thus, I have access to numerous providers, including orthopedic surgeons (spine, knee, shoulder, foot/ankle, wrist, hand, subspecialties) , neurologists, MRI, x-ray, CT scan, physical therapy, occupational therapy, hospital, outpatient surgery, general practitioner, chiropractic, pharmacy, neuropsychology, pain management, podiatry, hand surgeon, etc.
In most cases, my client will have already been to an emergency room or urgent care and requires follow-up care. Generally speaking, we will first try to get an idea if the client needs to go to a general practitioner or straight to a specialist (e.g., broken bones to orthopedic, simple ‘whiplash’ to chiropractor or general practitioner), and then determine what competent and qualified health care provider is geographically closest to my client. Las Vegas is a big area now, both population-wise and geographically, and I try to match people up with healthcare providers who are not a long drive away from where they live.
Will I have to pay out-of-pocket for legal or medical costs?
Generally speaking, no. If you go to doctors who are treating on a lien basis, they will not charge you out-of-pocket cash. However, they do expect to be paid at the end of the case, of course, from the settlement.
If you see doctors who are treating you under the basis of your health insurance, and who refuse to take a lien for the balance, they may require you to pay your co-pays out of pocket. This is uncommon, however.
Usually, I will advance the out of pocket litigation costs of your personal injury case. Sometimes these costs can be quite a bit, but if I think you have a good case I will pay what it takes to move the case forward in court.
You might ask: what if I go to court and lose the case – will I still owe your firm money? If you do not win your case in court, you would owe me nothing. But, you would still legally owe the lien doctors. This is why you need to listen carefully to my advice about settlement offers and the like when we get to that point. But, before you worry too much about this, keep in mind that I wouldn’t have taken your case in the first place if I didn’t think you would win.
How do I pick a lawyer?
Obviously, if you have a good case I hope you will pick my Las Vegas law firm. But, you should realize that most lawyers will tell you that they have the best law firm, and as a layperson, you would typically have difficulty distinguishing what really counts from what doesn’t count.
Picking a lawyer because they have an advertisement saying how many millions of dollars they have collected is not a good idea. This is in part because many lawyers will spin the facts about what they have “collected”. For example, I’ve seen advertisements from a lawyer I know who never goes to court, but who referred a significant case to a very good trial attorney who obtained a very big verdict. The lawyer who referred the case now claims on his advertisements that he was the one who got the big verdict, because he was listed as “co-counsel” on the case paperwork.
I can tell you how I would choose a lawyer in another city if I was making a recommendation to a relative. I would first go on a website called “Martindale-Hubbell” and pick someone with an “AV” rating. That rating means that the lawyer has been ranked among the top 10-15% of his peers. Next, pick someone who only does plaintiff’s work; lawyers who also insurance defense work should not be considered, for obvious reasons.
There is also an organization called ABOTA (American Board of Trial Advocates) which only allows attorneys with a certain amount of extensive, verified trial experience, who are approved by their peers to become members. ABOTA has both insurance and plaintiff’s lawyers, so you have to make sure if you pick a lawyer through ABOTA that it is someone who does plaintiff’s work. ABOTA is limited to the top 1% of civil trial attorneys, so there are a lot of good attorneys who are not part of it for various reasons; maybe they simply weren’t part of the “old boys’ club,” or are new at civil law.
You can also go to Nevada State Bar website and check out the basic credentials of any attorney. This will tell you where they went to law school, how many years they’ve been in practice, and if they have malpractice insurance. As a basic rule of thumb, if they went to a law school you never heard of, they may not be the best (although there are many exceptions, such as people who went to night law school while they were working to support a family).
Certainly, if an attorney does not have malpractice insurance, that is a huge red flag. I do not know of any decent attorney who does not have malpractice insurance. The lawyers who do not have it are usually bad lawyers who cannot get it because they have committed so much malpractice. Run, don’t walk, from any lawyer who does not have malpractice insurance.
Will I be able to get in touch with my lawyer and will they keep me informed with my case?
I stress in my office the importance of returning phone calls from clients. I tell everyone here that the lawyers from the insurance companies will never like us, and I don’t care if they do. Their phone calls are not a priority. If a client doesn’t like us, we can lose business; so, the clients are our priority.
Even so, these days 9 out of 10 times when I try to return a call from a client, I get their voicemail. We end up playing “telephone tag”. For this reason, if you call my office and don’t reach me or whoever you called for, I encourage you to please ask the assistant to make a “telephone appointment” for you. You and the assistant will agree on specific day and time when our office will call you and you can be sure to be available to take the call. Or, you can make an appointment to come in to our office. I find that face-to-face meetings are usually much better for communication.
Please understand that I am very busy and most of the time when you call I probably will not be able to take your call at that moment, but I will call you back. If I’m in a trial I may not call you back until the next week. But most of the time I’m able to call back people within 24 hours.
These days, a lot of people will respond to text messages, but do not listen to the voicemails. Please, if you call my office, pay attention to your voicemail messages as the response is more likely to be there, not on a text.
Email can also be an excellent way to communicate. However, without trying to sound too paranoid about it, email can be “hacked”, and I have heard numerous stories from other lawyers about insurance investigators hacking into email accounts. Our own government tried to argue that emails were not private, and therefore, collecting them from places like Yahoo and Gmail does not require search warrants. This has emboldened insurance companies who hire hacker-type investigators.
Some clients want me to keep them up-to-date with regular communications every month. Frankly, I cannot accommodate this. I don’t have enough time to call or write someone when there is not anything particularly new going on. When something happens that you need to know about, I will tell you.
Very rarely, I do get clients who call too much. The clients who do this usually want to go over the same thing multiple times. Sometimes they will call and ask the same question of several people in the law office, I guess to see if they get different answers. I’m not sure what the psychology is behind this, but I suspect it is because they are afraid, which is natural for anyone in the unnatural environment of a lawsuit, and it is somehow calming to repeat things. I realize they are not doing it to annoy anyone, they are doing it out of anxiety.
How do social media sites like Facebook affect personal injury cases?
This is a “hot button” topic among civil trial lawyers lately. Social media like Facebook, Twitter, etc. are not – – repeat NOT– protected from the prying eyes of insurance companies.
As a matter of fact, most insurance companies will now run your name with a service that will search through all your social media accounts. Although the legality of this is somewhat sketchy, it is easy for insurance companies to hire people who can get into your Facebook accounts or social media accounts by pretending to be a friend of friend in order to get access to information that you thought wasn’t public. Some judges realize that people do have some sort of expectation of privacy with Facebook, and will not allow insurance lawyers to use this information in court, but a lot of judges take the view that this information is “fair game”.
Do not – – repeat do NOT – – discuss your case or any aspect of it on social media. If you write on Facebook or Twitter some sort of funny or sarcastic remark about the legal system, your case, your doctors, etc., it might be funny for a moment, but it will later on show up as a PowerPoint exhibit against you. While you may say, “Hey, it was just a joke,” the judge and jury may have little sense of humor.
Will the insurance company follow me around and secretly videotape me?
Usually not, but it could happen. Generally, insurance companies are only going to do this in cases where a very severe injury is being claimed, or if the defendant has lots of money to spend and wants to maintain a certain “I’m big and I’m bad,” image, like banks, utility companies, cable companies, and certain huge retailers.
If they were to follow you, generally speaking they would only have someone follow you around and film you for a couple days. I have clients who get paranoid and think they see people following them around all the time; that never happens.
The best defense against this is to not to exaggerate your injuries, not even a little. For example, if a doctor asks if you can lift, you might say “Yes, if it’s not too heavy,” as opposed to “I can’t lift anything at all”. Or, you might say “I limp if I walk more than a certain distance,” as opposed to “I limp all the time”. In normal life, such nit picky differences in description would make little difference, but in the nasty world of insurance law firms, catching some little discrepancy like that on tape is looked upon as a “gotcha” sport.
Most of the tapes that I see just show people getting in and out of cars, going in and out of stores, going to and from the doctor, taking their kids to soccer practice, etc. There’s nothing there that is meaningful, and you wonder why they paid someone for this. Juries actually get mad at defendants who make these tapes of honest people, as this kind of creepy snooping around says more about the person with the camera than it does about the person being taped.
Will my privacy be invaded by the insurance company?
Depending on what you mean by privacy, the answer is a qualified “yes”. Insurance companies, their henchmen, and their hired gun doctors feel that anyone who makes a claim against an insurance company is no longer a real human being who was injured through no fault of their own, but rather a faceless, bloodless “target” to shoot down. We are aware of this and keep the focus on the real “bad guy”, i.e. the person or entity who caused your injury.
Insurance companies have access to powerful computer databases that they can run on anyone who dares to challenge them. These databases will show virtually any public record, such as whether you have ever filed other lawsuits, been divorced, filed bankruptcy, ever been arrested, been in other accidents, and so forth.
Insurance companies also have access to a database that the health insurance companies use to screen applicants for pre-existing conditions, which basically has all of your medical history. They are not supposed to access the health insurance company database without written permission, but I have no doubt that they ignore this rule.
Additionally, insurance companies have a database that shows any insurance claim you have ever made, including things like claims for broken windows. This database also shows everyone else who lives at your household, and whether they have ever made a claim.
Insurance companies will also access your social media accounts, such as Facebook and Twitter. They can and do use “Trojan horse”-type programs to access your social media accounts, even ones you thought were blocked to the public. It is not difficult for insurance companies to hire hackers to access your email account and read your emails.
Unfortunately, many people who do not have attorneys will sign release authorizations that they think are only for their medical records related to the accident. Similarly, some people hire personal injury attorneys who are lazy or inexperienced, and do not read the releases before having their clients sign them. These releases give insurance companies the right to go into the health insurance databases, public servers to get your emails, credit card records, phone records, mental counseling records, military records, etc.
Insurance company lawyers will actually tell judges that because you make a claim, your life is now an open book. This is not true; we have laws in Nevada that do not allow insurance companies to go into private records that have no relevance to your personal injury case. This being said, insurance companies are allowed to get your medical records going back five years before the accident, even if it is not directly relevant; and if you make a sizable lost wage claim, they are allowed to get copies of your tax returns.
You have to assume that if you make a claim the insurance will know about any other claims you have ever made during your entire life, even if it was in a different state, 25 years ago, etc. They will know about any Workmen’s’ Compensation claims you have ever made in your entire life, no matter where. They will also know about anything that’s in the public record, such as bankruptcies, divorces, lawsuits, and criminal convictions. There are also public websites that show records of anyone who has been put in jail, even for a traffic ticket. If you have a good lawyer, however, then the insurance company should not be able to access your irrelevant, non-private records.
You should never sign a “carte blanche” release authorization for the insurance company, even if they tell you orally that it will only be used for treatment records. With everything on computers these days, a carte blanche release authorization can be used to get just about anything, including credit card records, telephone company records, email printouts, etc. The more potentially embarrassing the information, the more desirous it is to the insurance company to obtain it.
If you have an attorney that allowed you to sign a carte blanche release for the insurance company, then you have to assume that everything is an open book to the insurance company investigators. Our office never allows this, because we know that insurance companies do not play “nice.” If you have a good lawyer, you can limit the insurance company’s access to only information that they are legally entitled to get and nothing more.
If you have already signed a carte blanche open release, you should tell your lawyer to revoke it ASAP.
What can I claim for lost wages?
If you lose days of work due to an accident, these can be claimed even if you have “sick days” to cover to it. This is because you would not have had to use up a “sick day” were it not for the accident.
If you are self-employed, your lost wages will be limited to what seems to be a reasonable amount based upon your tax returns. If, for example, your tax return shows that you make an average of $52,000 a year, that salary will be the basis for calculating your earnings lost.
Even if it is true, saying that you would have made a lot more than your average salary because of a missed opportunity is generally viewed with skepticism. A “lost opportunity” claim can be made, but it will have to be supported by more evidence than just your opinion. I usually discourage “lost opportunity” claims because juries view them very skeptically, and this can negatively influence their view of the rest of the case.
In Las Vegas, most tips are now reported under “tips compliance” programs for the IRS. As a practical matter, you cannot claim tips that are in excess of what is shown on the tip compliance reports.
Will the insurance company know about any prior injuries I have had, even ones from other states or from a long ago?
Yes. The insurance companies have a very good database that lets them know about any prior injuries you have had, even if it was long ago, minor in nature, or in a different state. The insurance company will review your medical records to see if you told the treating doctors about prior injuries. If you did not tell the doctor about a prior injury, they will use it as evidence to imply that you are a scammer. So you need to tell your lawyer and your doctors about any prior injuries that you have had, even if they were minor.
The majority of the time, prior injuries are not relevant to your case and the judge will exclude them from evidence if revealed by you voluntarily. But if you try to conceal a prior injury, then the judge may let it come in as proof that you have a “convenient memory”. We urge our clients to be extremely forthcoming about any prior injuries they have had. If you’re upfront about a prior injury, it will not hurt your case, especially as compared to looking like you are concealing something.
Will the insurance company know about similar medical conditions I’ve had in the past?
Yes. In the past if you told your physician that you had, for example, a neck or back problem, the chances are the physician will put a diagnostic code in his billing records that shows that you mentioned this as one of your problems, even if it is just a minor or side complaint. The code then goes into a giant computer that health insurance companies maintain to monitor payment of bills and pre-existing conditions of people who apply for health insurance.
A casualty insurance company can very easily access this computer and see if there are any diagnostic codes entered in your records for the part of the body that you are claiming was injured in the accident. If you reveal to your doctors and lawyers any prior similar medical conditions, even if they are from many years ago or from another state, then you cannot be accused of being a scammer with a “convenient memory”, which is what the insurance lawyer will infer if given the chance.
I was arrested many years ago when I was a teenager for a misdemeanor crime. Will the insurance company find out about it? Can i
Generally speaking, insurance companies will know about any criminal convictions in your past, even if it was many years ago and occurred in a different state. Mere arrests, without convictions, are still not widely available on public data searching programs, but this is changing, as now records for anyone incarcerated, even for a traffic ticket, are made public in many jurisdictions. So, you have to assume that insurance companies are aware of any “brushes with the law” that you may have had.
The good news is that the large majority of old misdemeanor arrests, “Stuff I did when I was a kid”, domestic disturbing the peace, etc. can be kept out of court as long as you let your lawyer know about it upfront, and don’t try to blur details about it if asked. Felony convictions for crimes involving dishonesty (e.g., felony conviction for fraud or embezzlement) are generally admissible in court to prove lack of honesty. As a general rule, however, crimes for things that have nothing to do with honesty can be excluded from trial evidence as long as you are candid when and if asked in discovery.
How do I know my lawyer isn’t going to be bought off by the insurance company?
If you read the above, then you know that I am no friend of insurance companies and I put little passed them in terms of willingness to do awful things. But, I have never heard of an insurance company ever ‘buying off’ a plaintiff’s lawyer. For one thing, if they tried this, they would be handing the lawyer the biggest weapon ever; for another, if a lawyer took a bribe, he could lose his license forever and go to jail. It just is not a realistic possibility.
Insurance companies can and do pay doctors large amounts of money to write opinions that people are faking and not really hurt, but this is legal; fortunately, insurance companies have to divulge how much they paid these doctors. The people who sit on juries are not fools, and realize these doctors are ‘hired guns’.
If I refer a case to you, can I get a finder’s fee?NO. It is illegal for lawyers to pay finder’s fees to people who refer them cases. Yes, I know there are scumbags who do this, but I am not one of them.
Why should my health insurance pay my medical bills? After all, it’s the other person’s fault.It is not an “either or” situation on payment of your medical bills. If the health insurance pays, it does not let the at fault person off the hook. They still have to pay the medical bills, also. However, in most cases, when and if you get a settlement, you have to pay back the health insurance some or all of what they paid.
Why do I have to pay back my health insurance after I settle?
The basic answer is: because that’s the law. (A bad law, in my view.) I agree that it is unfair to pay back an insurance company that took your premiums in year after year. Until about 20 years ago, in fact, the law did not allow health insurance companies to reach into your settlement, on the basis that it was an unfair windfall to them after you paid the premiums for your benefits. But, about 20 years ago (when the Congress passed into the hands of those who were ‘influenced’ by big insurers, a law called “ERISA” was enacted, which makes it practically impossible to sue health insurance companies for bad conduct towards policy holders, and which also gives them reimbursement rights from personal injury cases. It is an anti-consumer law, and maybe some day, if we get a consumer friendly Congress, it will be changed; but for now, it is still the law, and don’t hold your breath for change any time soon.
Medicare must be paid back because the federal government says so, basically. It is neither logical nor fair, but, Medicare needs money, and they are very aggressive about enforcing their claims for reimbursement, almost IRS-like.
An unrepresented person stands no chance of fighting ERISA insurers or Medicare. They will frequently try to claim reimbursement for medical bills that have nothing to do with the accident, especially if you do not know how to fight them. I have seen a competent personal injury lawyer who can at least make sure their reimbursements are limited to only what is actually owed.
What is the difference between medical malpractice and medical negligence?
Medical providers owe their patients duty of care. Duty of care is defined as what any prudent person in a particular situation and with the same knowledge would have done.
Medical malpractice is a breach of duty of care. This means that there was an element of “intent” in which the medical provider took a known risk in failing to treat a patient in the way they should have in order to avoid harm.
Medical negligence occurs when the medical provider makes a mistake while treating a patient, resulting in harm. Negligence is without the intent or knowledge that an action would result in injury.
What is the statute of limitations for medical negligence cases?
This is a trickier question than at first glance seems true. Prior to October of 2023, the law was that for cases against those providers covered by the KODIN (“Keep Our Doctors in Nevada” law), which includes regular hospitals, and doctors, it was required to file suit within one year of the date the malpractice happened; or, if not immediately known by the victim, one year from the date a reasonable person would have discovered it. However, even if not discovered, the maximum time would be three years from date of the negligent act. (Some exceptions exist for birth injuries, and wrongful death, and a few other rare situations.) A new law that goes into effect for cases happening later than October, 2023, changes the time from one year, to two years, to file suit. Most, but not all, medical type providers are covered by KODIN. For example, out of hospital pharmacies are generally not covered, nor are “half way” houses, assisted living homes, and, for some things, skilled nursing facilities.
What is the “cap” on damages for medical negligence cases?
Assuming that the defendant and the tort is covered under the KODIN (“Keep Our Doctors in Nevada”) law, there is a cap on “non economic damages,” which in general means money for pain and suffering. The cap is $350,000, but, starting in 2023, the cap will be raised by $80,000 a year until it reaches $750,000, in 2028. The cap does not include money for ‘economic’ damages, which category includes past and future medical expenses, lost wages, household services, life care plans. As regards past medical bills, these are, in general, not allowed if there is health insurance, BUT, under recent rulings from the Nevada Supreme Court, IF the health insurance has a federal lien provision, then, the medical bills are collectable (this would include medicare, Medicaid, and most union healthcare plans.) Frankly, with regard to the “cap” provisions and “collateral source” provisions of KODIN and how they apply to medical bills, the law is confusing and in flux, and it would not be wise to hire a lawyer who does not have a lot of experience in Nevada medical malpractice law to handle such a case. in many, if not most, med mal cases, the majority of the damages recoverable will be for things outside the “non economic damage” cap provision, and it is up to the lawyer to know how best to do this.
Is it harder to file a complaint for medical malpractice, as opposed to other types of cases? Very much so, yes. In ‘garden variety’ injury cases, one need only file a notice pleading document without an expert affidavit of merit. These sorts of complaints can usually be written by a lawyer in relatively little time if there is a time deadline, such as a statute of limitations. But, with medical malpractice cases covered under the KODIN (“Keep Our Doctors in Nevada”) law, the complaint has to have an accompanying declaration of merit by an appropriate physician or specialist stating that it appears there is a case with merit. There are numerous court decisions in Nevada about what needs to be in the declaration, and what needs to be in the complaint, and this area of law is oft times shifting, as new cases come out. In virtually every med mal case that is filed, the defendant will file a motion to dismiss nit picking at the complaint and the declaration. In order to put together a med mal complaint and to get an appropriate expert and declaration, a med mal attorney will have trouble doing this if the plaintiff does not hire the attorney at an early enough date.
Do I have to get my own medical records? Generally, no, and less so now than before. It used to be, prior to October 2023, that hospitals would try to charge thousands of dollars for copies of a patient’s records, but ,could not do so if the patient went to the hospital in person to request an electronic copy of the records. For this reason, we would oft times ask the client to go to the hospital to get the records in person. However, a new law going into effect in Nevada in October 2023 says that every healthcare provider must provide the patient’s attorney with an electronic copy of the patient’s records for no more than $40.
How do I get the medical records of someone who is dead?
There are, basically, two ways. One is to go down to family court self help services (on Bonanza Road in Las Vegas), and for free, they will help you get a court order giving you permission to do this (assuming you are the surviving spouse, or sole surviving adult child etc.) The other way is to be appointed special administrator of the estate for purposes of investigation possible malpractice claim, which we will do for you if you hire our firm. Having a ‘power of attorney’ for a patient who has died will not be accepted by health care providers.
If my relative has a medical malpractice case, and he/she dies, who gets the money?
This is not as simple as it sounds to answer. If the patient died because of the malpractice, then this would be a wrongful death case, and under Nevada law, the intestate heirs can sue individually for most things, other than the medical bills. The medical bills and funeral bill claims belong the estate; the claims for the deceased’s pain and suffering, and the emotional and economic losses to those left behind, belong to the individual heirs. The estate goes to whoever is named in the will, and if there is not a will, then it goes to heirs under intestate succession (laws that say who gets the money if there is no will. ) if the patient dies for reasons not related to the malpractice, then the money all goes to the estate, which means to who is named in the will, and if no will, then to the intestate succession heirs. All this is, frankly, very complicated, and involves, often, liens on the estate from Medicaid, medicare, or health insurances. Lawyers who do not specialize in medical malpractice are likely to get lost in what is a very complicated maze when the victim of malpractice dies; however, our law firm has dealt with this situation well over a hundred times. Having a “power of attorney” does not entitle someone to get the money when a person dies.
What is the standard for whether or not something is malpractice?
The terms “medical malpractice” and “medical negligence” mean the same thing. Most people think “malpractice” means something akin to a criminal action, or that “negligence” might be even worse than “malpractice.” Neither is the case. In “medical malpractice,’ the plaintiff must show “professional negligence” by “a preponderance of the evidence.” To show “professional negligence,” the victim must show that the doctor or hospital/nurse, while treating the patient, went below the “standard of care.” The “standard of care” means, in Nevada, that which a reasonably careful and prudent health care provider would not have done under the same or similar circumstances. This is confusing, to be sure, but to boil it down, it means that the doctor or nurse was not careful. Unfortunately, this simple concept will be confused by the lawyers representing the hospitals and doctors, and jurors typically have sympathy toward doctors and nurses, so what is the law can be lost in translation, so to speak, at trial. It is a major part or the job of an experienced medical malpractice trial attorney to try to keep the jury clear on what they are actually deciding. The “standard of care” is not some mystical thing decided by obscure government regulation, but is, in reality, a common sensical standard of whether someone was being careful, following protocol, putting patient safety first, and simply taking the time to do their job properly, and knowing what they should know to be competent for the type of case they are doing. Most of our cases concern nurses not doing what is on their patient and hospital checklists; doctors rushing patients or not taking the time to communicate; doctors trying to do things they are not qualified to do; hospitals not keeping up on proper staffing, in order to squeeze out more profits; doctors not looking at test results coming in; patients being forgotten at night time or during shift changes; or other common sense things that happen in every type of business that deals with human beings. People get lazy, cut corners, or put profits above safety, constitutes probably 90+% of the violations of “standard of care” we encounter.
What Is the Nevada Statute of Limitations for Personal Injury Cases?
When it comes to filing a personal injury lawsuit, it's important to pay attention to the statute of limitations for the state you're filing in. A statute of limitations is the time limit that a state puts on how long after your accident you are allowed to file a personal injury lawsuit. Statutes vary from state to state.
Nev. Rev. Stat. § 11.190(4)(e) (2016) states that individuals wishing to file a personal injury lawsuit must do so within 2 years of the date of their accident. However, there are certain exceptions that can be made depending on your circumstances. For example, if you have been injured as a result of medical malpractice, you generally only have 1 year to file your lawsuit after the date of your injury (Nevada Revised Statutes section 41A.097).
Statute of limitations can be complex, and if you fail to file your lawsuit within the allotted amount of time your case will most likely be dismissed. Don't put your compensation on the line! Contact our experienced Las Vegas personal injury attorneys today to schedule a free consultation and determine what your next steps should be.
Do I have a personal injury case?
It is often times said by attorneys that in order for there to be a viable personal injury case, there must be “three legs on the stool.” These legs are: liability (or fault); damages (or injury); and collectability (insurance). If any one of the “legs” is missing, then there is not a viable case.
- Liability - A clear example of liability would be someone running through a red light. That person would be at fault. On the other hand, let us say that somebody is hit by a meteorite falling from the sky, and seriously hurt. In that case, although there is injury, there is no earthly entity at fault.
- Damages - An example of damages would be someone getting hit in the nose by an airbag, which breaks their nose. That person has an injury caused by the collision. On the other hand, what if that same person is almost hit by a car running a red light, but by the grace of God is able to avoid the collision? That person might say “I was almost killed, but I didn’t get a scratch.” In that case, the person was not injured and there is no case.
- Collectability - To give an example of collectability, imagine that a drunk driver runs through a red light, and the driver is Donald Trump. In that case, if Donald Trump hit and injured someone when he ran the red light, the victim will be able to collect upon any judgment that they receive. Imagine, on the other hand, that the drunk driver is someone who just got out of prison, and has no insurance and no property. Although that person will probably go to jail, there is no practical way to collect money from him, as he is a “scofflaw” living outside responsibilities of society.
How much is my case worth?
There are many factors that go into evaluating the settlement value of a personal injury case. It is not a simple matter of applying a formula. Typically, everyone thinks that their case is “simple” and “clear-cut”. Everyone tends to think that the amount of money they are seeking is “fair and reasonable”. That is human nature. However, the reality is that, in the end, a personal injury case is worth what a jury says it is worth. The job of the victim’s personal injury lawyer is to come up with a settlement that reflects the risk of going to trial (odds of winning vs. odds of losing), together with the range of what value a jury might actually return on the case.
In deciding settlement values, we need to consider the following:
- Is fault clear, or contested?
- Are the injuries severe or mild?
- Is there an issue with insurance coverage?
- Is the client a good communicator?
- Is the defendant/wrongdoer likable or unlikable?
Normally, I am able to give a very general estimate range of settlement value and odds soon after taking on a case, with the understanding that these are just estimates and not guarantees. The longer the case goes on, the more definite I can be about the settlement value range.