Wilson, Polites & McQueen

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AUTOMOBILE ACCIDENTS AND OTHER INJURIES

WILSON, POLITES & MCQUEEN

ATTORNEYS
ANSWER YOUR QUESTONS

Suite 201 Goodwin Square
444 East Main Street
Lexington, KY 40507
Phone: (859) 253-2373
Fax: (859) 253-2360

Commerce Court
297 South Main Street
Madisonville, KY 42431
Phone: (270) 821-1670
Fax: (270) 821-1754

100 Robinette Lane
London, KY 40741
Phone: (606) 877-1189
Fax: (606) 877-1183

INTRODUCTION

Over the years, Wilson, Polites & McQueen has had the honor and privilege of representing thousands of injury victims in front of various courts and administrative bodies. It has been our job not only to help injury victims to recover their rightful benefits, but we have also endeavored to educate our clients regarding their rights and protections under the law. We are all potential injury victims at any given point in time, and it is important that all persons have a basic working knowledge as to potential rights in the event of injury. Over the years, victims of automobile accidents and other type of personal injuries have tended to ask similar questions concerning their potential rights. Set out in this brochure are twelve of the most commonly asked questions, with a brief answer for each.

We hope that the information provided in this brochure will be of some interest and benefit. We at Wilson, Polites & McQueen consider it our duty to serve as an information source for injury victims. Wilson, Polites & McQueen has a large staff comprised of seven lawyers plus knowledgeable administrative personnel, with offices conveniently located in Eastern, Western and Central Kentucky. We represent only injury victims, never companies. If you or a friend or relative has been a victim of personal injury, we urge to you contact us for a free consultation.

I. AUTO RELATED INJURIES

1. I have been injured in an automobile accident. How do I get my medical expenses paid?

Many people come into our office having been injured in a motor vehicle accident under the assumption that the responsible driver, through his or her insurance carrier, will be responsible for the payment of medical expenses. This is not the case under Kentucky law. Kentucky adopted a form of No Fault law in 1974, which had the effect of significantly altering the rights and obligations of persons involved in motor vehicle accidents. Under Kentucky law, one injured in a motor vehicle accident must initially rely on the No Fault coverage available for payment of medical expenses. Generally this will be the insurance company having coverage for the vehicle which the injured person was occupying at the time of the injuries. This is true even though the other driver may have been completely at fault in terms of causing the accident. When a pedestrian is struck and injured by a motor vehicle accident, the pedestrian must look to the No Fault coverage available through the vehicle that struck him or her to the extent that a claim is payable through No Fault. Neither the responsible party nor his or her insurance carrier is liable to the extent the losses are paid or payable through No Fault.

If you have been injured in a motor vehicle accident, you should file your application for No Fault benefits at your very earliest opportunity. Private health insurance, including group coverage provided through one's employment, typically has no responsibility for paying medical expenses to the extent that same are automobile related, and are paid or payable through No Fault. It is therefore important to have your No Fault claim prepared, filed and processed as quickly as possible in order to ensure timely payment of medical expenses. If there is no automobile insurance coverage available for your injury, you may be able to secure payment of your medical expenses through the Kentucky Assigned Claims Bureau. The Assigned Claims Bureau is located in Louisville, and may be reached at 502-327-7105. Wilson, Polites & McQueen would be happy to meet with you and advise you as to your potential rights arising from personal injuries sustained in a motor vehicle accident.

No Fault coverage is mandatory under Kentucky law, unless specifically rejected in writing. Most persons are covered by basic No Fault coverage, which is limited to $10,000.00 of No Fault protection for payment of a combination of medical expenses, lost wages, or possibly other economic losses arising from a motor vehicle accident, and it is apparent that given prevailing health care costs, this insurance coverage will not go very far in the case of serious injuries. Kentucky law does permit one the option of purchasing additional No Fault coverage, or Added PIP (Personal Injury Protection.) Added No Fault is usually rather inexpensive supplemental coverage, and can provide valuable economic protection in the event of serious bodily injury arising from the use of a motor vehicle. If you are unfamiliar with the specifics of this type of insurance protection, Wilson, Polites & McQueen urges you to discuss these matters with your automobile insurance agent.

2. What about my lost wages?

Again, you must look to the applicable No Fault insurance coverage for the payment of lost wages due to injuries arising from a motor vehicle accident. As regards both lost wages and medical expenses, you should be aware that Kentucky No Fault provides for reimbursement of losses "suffered through injury arising out of the operation, maintenance, or use of a motor vehicle". Thus, you may have valuable rights under Kentucky No Fault law even if your injuries arise from circumstances other than a moving accident. If you have incurred lost wages as a result of an injury arising out of the operation, maintenance, or use of a motor vehicle, you should so indicate on your application for benefits, and as noted earlier, this application should be prepared and submitted as soon as possible.

It should be noted that basic No Fault lost wage benefits are paid at the rate of 85% of the actual loss of income, subject to a maximum benefit of $200.00 per week. The No Fault lost wage benefits are generally not taxable as income, although specific questions regarding taxability should be referred to your accountant or tax return preparer.

As noted in the above discussion concerning medical expenses for basic No Fault coverage, maximum benefits payable are the cumulative sum of $10,000.00, whether paid as medical, lost wages, other economic loss, or a combination of all. Again, for the reasons discussed above, we recommend that you discuss the possibility of procuring added No Fault protection with your insurance agent.

In the event that your automobile accident is also work-related, Kentucky law permits you to draw lost wage benefits from both Workers' Compensation and No Fault. However, under the No Fault statues, the Workers' Compensation coverage is your primary benefit, and the Workers' Compensation benefits are to be subtracted from your actual lost wages for purposes of calculating net loss for determining the applicable No Fault payment rate. We have found, through the years, that many clients are unaware of this valuable right. In the event that your are incurring lost wages due to a work-related motor vehicle accident, you should ensure that you are receiving maximum lost wage benefits through both Workers' Compensation and No Fault.

3. What other losses will No Fault compensate me for?

In general, No Fault compensates for economic loss only, and does not provide benefits for non-economic detriment, i.e., pain and suffering. In addition to medical expense and lost wages, injury victims may be entitled to recover for replacement services loss which is defined by statute to mean expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the injured person would have performed, not for income but for the benefit of himself or his family, if he had not been injured. Thus, if you are unable to perform routine household chores, for example mowing the lawn, or if you are forced to hire a maid on a temporary basis due to your injuries, those expenses may be payable through your No Fault Coverage. Obviously, your insurance adjuster will require appropriate medical documentation to substantiate the medical necessity for such expenses.

No Fault insurance also provides for various payments for cases of death arising out of the operation, maintenance, or use of a motor vehicle. Specifically, in death cases, No Fault will provide coverage for funeral and burial expenses (limited to $1,000.00 in the case of basic No Fault coverage), in addition to survivor's economic loss, and survivor's replacement services loss.

4. What do I do about my medical expenses and lost wages after my No Fault coverage has been exhausted?

This is a point and source of significant hardship for many automobile injury victims. As noted previously, in cases of serious injury, the $10,000.00 of available No Fault proceeds can be exhausted rather quickly through lost wages and/or medical expense payments. This often occurs while medical treatment is ongoing, preventing the injury victim's attorney from being able to meaningfully evaluate the case for possible settlement with the responsible driver. At this juncture, there is unfortunately no source or fund for ongoing payment of either medical or lost wages absent some private insurance or benefit plan. Recent statutory changes do allow the injured party to direct his or her No Fault provider, in writing, as to a specific allocation of the potential benefits between medical benefits and lost wage benefits. This creates the possibility of lengthening the amount of time that one can draw No Fault lost wage benefits, providing a source of ongoing income during the pendency of negotiations and/or litigation.

While your personal medical insurance, either individual policy or group plan, will generally not pay for medical treatment related to an automobile accident in the first instance, then typically they will be obligated to assume responsibility for payments in accordance with the policy provisions after your No Fault benefits have been exhausted. Accordingly, after your No Fault benefits have been exhausted, any continuing medical bills should be properly submitted to your individual medical insurer, or group health provider through your place of employment, if you have such coverage. In the absence of any such insurance, and depending upon the severity of your injury, you may qualify for a medical card through Kentucky Medicaid. Otherwise, you will be personally responsible for continuing medical expenses, which would obviously need to be presented at an appropriate point to the insurance carrier for the responsible driver when your claim is presented for settlement or litigation. Items that can be recovered through the responsible driver will be discussed in greater detail in response to the next question.

If the balance of unpaid medical to one or more health care providers begins to present a problem in terms of procuring ongoing treatment, we have found that often times a letter of protection to the health care provider will suffice to have them forego collection on the account, and continue treatment. A letter of protection is a form of written assurance, usually from your attorney, that payment will be made directly to the health care provider out of the proceeds of any personal injury settlement or collection on a legal judgment following any verdict.

Similar to the situation with medical, if the automobile injury victim continues to incur lost wages after No Fault insurance has been exhausted, there will be no fund for continuing payment of lost wage benefits absent a privately owned disability insurance plan, or group benefit through your employment such as accident and sickness or short term disability or long-term disability benefits.

Payment of medical expenses or lost wage benefits in situations such as outlined above will generally vest the insurance, or other payor, with what are termed subrogation rights, meaning that the law will give them a right to seek reimbursement of their payments from the responsible motor vehicle operator, or his or her insurance carrier. Thus, at this point, your medical or disability income inserter may be in effect competing with you for settlement from the responsible party. Most such insurance policies require that the insured cooperate in terms of protecting the insurance carrier's subrogation rights.

5. Since my insurance company has paid all of my medical expenses and lost wages through No Fault, what can I recover from the driver who caused the accident?

Initially, it should be noted that the motor vehicle accident victim has NO right of recovery against the responsible party until he or she satisfies one or more of the so-called threshold requirements of the No Fault Act. The threshold requirement will be satisfied by incurring medical expenses in excess of $1,000.00, a fracture to a bone, loss of a body member, a showing of permanent injury within reasonable medical probability, permanent loss of bodily function or death, or permanent disfigurement.

After the threshold requirement has been met, the injured party may assert a claim against the responsible party for all losses not paid or payable through No Fault. This includes non-economic losses such as pain and suffering, which includes both mental and physical suffering. It also includes such future losses as can be established by the evidence, such as future medical expense, and permanent disability, or permanent impairment of one's power to earn money. Although lost wages and medical expenses must be paid initially through No Fault, if the injury victim has incurred medical and/or lost wages in excess of that paid or payable through No Fault, then those losses may also be recovered from the responsible party, through his or her liability insurance carrier.

Additionally, under Kentucky law, the injured party's spouse may maintain a claim commonly referred to as loss of consortium. This is essentially a claim for damage to the marital relationship due to the negligently inflicted injuries suffered by one's spouse. Items encompassed within the concept of loss of consortium may include such matters as stress placed upon the marriage due to limitations suffered by the injured spouse, stress due to personality changes on the part of the injured spouse, damage to the conjugal relationship, and in general any injury to the husband-wife relationship attributable to the injuries. As a general rule, we recommend assertion of a loss of consortium claim only in cases of major injuries.

In connection with the question of what can I recover from the other driver, one must ask the question of when to try and settle or recover damages from the responsible driver. We generally do not recommend seeking settlement, or seeking to evaluate a case for settlement, until the injured party has fully healed from his or her injuries, or reached maximum medical improvement (MMI). Until a patient has reached his or her maximum degree of medical improvement, attending physicians will be unable to meaningfully assess the extent of any permanent injury, and project permanent or long-term restrictions on work activities. These items are critical to any settlement evaluation, hence it is difficult, if not impossible, to properly evaluate a case for settlement prior to maximum medical improvement.

6. How long do I have to file suit against the responsible driver?

A lawsuit for injuries arising out of the operation, maintenance, or use of a motor vehicle must be filed within two years of injury or death, or within two years of the last payment of a No Fault insurance benefit, whichever occurs later. Prior to enactment of the No Fault legislation, the statue of limitations had been one year. As you can see, the No Fault statutes have significantly extended the time in which to bring legal action in such cases. A spousal claim for loss of consortium remains subject to a one year statute of limitations.

II. QUESTIONS REGARDING POTENTIAL CLAIMS OTHER THAN AUTOMOBILE ACCIDENTS

7. I have experienced terrible complications from recent medical treatment. Should I sue my doctor or hospital?

This question relates whether or not to bring what is commonly referred to as a medical malpractice action. We prefer the term medical negligence, rather than medical malpractice, and will use that term throughout. Medical negligence actions are notoriously complicated, expensive, and an overwhelming majority of cases that proceed to jury trial result in verdicts for the doctor or hospital. In terms of expenses, it is virtually impossible to maintain a medical negligence action without expert witnesses, and it is usually impossible to obtain local experts. Given the necessity for obtaining experts, who are often times out of state, deposing the opposing sides experts, etc., it is not uncommon for a plaintiff's law firm to have invested $20,000.00 and upwards in litigation expenses in a medical negligence action simply to get the case to trial. An unfortunate result of the expense factor is that many cases with relatively clear negligence, but minor or modest injuries, are simply not feasible to litigate from an economic perspective, as it would not be profitable either to the client or attorney. These factors regarding complexity and expenses are simply realities that must be taken into account in evaluating any potential medical negligence action.

Nor is it fair to assume that your doctor or hospital is liable for your injury simply because you have had an unfavorable outcome. Medicine is not an exact science, and doctors are not guarantors of results. This does not mean that all bad outcomes are excusable, however, for doctors and all health care professionals are required to exercise that degree of care and skill expected of a reasonably competent physician within his or her specialty, and acting under similar circumstances. This is commonly referred to, as the professional standard of care and breach of this standard can generally be proven only by expert testimony from another physician or appropriate health care professional. If you have been injured through a physician's or health care professional's violation of the professional standard of care; you may be entitled to substantial money damages for your injuries. If you feel that you have been a victim of medical negligence, we would be happy to meet with you to discuss your potential case, and if appropriate, obtain copies of complete medical records and have those records screened by a competent medical specialist to determine whether or not there has been negligence in your case.

8. I was injured as a result of a slip and fall accident at the local department store. They are responsible for my injuries, right?

Not necessarily. Just because you have been injured on someone else's premises does to automatically make them legally responsible for your injuries. As in any personal injury case, it is the burden of the plaintiff, or injured part, to prove some negligence on the part of the defendant, in order to subject the defendant to legal liability for the injuries and resulting damages. Although businesses are not automatically responsible for injuries just because they occur on the business premises, the stores do operate under a legal duty to exercise reasonable care for the safety of their patrons. If you feel you have been injured through negligence on the part of a business, or other premise owner, you may have valuable rights arising from the incident, and should consult an attorney in regard to your potential rights.

Many premise owners, businesses, and even homeowners, have insurance policies that include limited coverage for medical expenses for injuries arising on the premises, irrespective of whether there has been any negligence. This is similar to the No Fault insurance provided through automobile insurance polices, discussed above. If you, or someone that you know, has been injured on someone else's premises, you should check with the owner or management to determine whether or not there is medical expense payments coverage. By doing so, you may be able to obtain payment of all medical expenses without taking legal action, which can be extremely beneficial in cases of relatively minor injuries where litigation would not be economically practicable.

9. What rights do I have if I have been injured by a defective product?

Injuries attributable to defective products generally give rise to a right to sue the manufacturer, and possibly middleman distributors, for resulting injuries. These types of cases are referred to as product liability actions. Product liability actions can arise from either a manufacturing defect or a design defect. Design defect cases are much more common than manufacturing defect cases, and unfortunately much more expensive to litigate, and much more difficult to prove. The issue is whether the allegedly defective product was designed in such a manner as to render it unreasonably dangerous. This issue almost always requires expert testimony from engineers or other types of technical experts. If you feel you have been injured due to a malfunctioning or apparently defective product, you may have valuable legal rights arising from the incident, and would be well advised to consult legal counsel concerning your potential rights.

III. GENERAL QUESTIONS APPLICABLE TO ALL TYPES OF INJURY CLAIMS.

10. Should I get an attorney? If so, when?

If you have suffered injury through someone else's fault or negligence, you are urged to consult competent legal counsel as soon as possible. Prompt investigation, preservation of evidence, photography, and possible early retention of expert witnesses may be critical to your prospects for success. While it may be weeks or months before an injury victim reaches maximum medical improvement, the point at which your attorney can properly evaluate your case for possible settlement, there is much that counsel can do early on to lay the proper groundwork for a successful settlement or a successful prosecution of a lawsuit. Especially in cases where the physical evidence may be of importance at later points during the claims process, failure to promptly procure counsel and have the claim properly investigated may result in significant prejudice to our prospects for a successful resolution.

11. How long do I have to file suit on cases other than automobile accidents?

As discussed above, automobile related cases are generally subject to a statute of limitations of two years, or more, depending upon payment of No Fault benefits. Other types of personal injury accidents, under Kentucky law, are generally subject to a one year statute of limitations. In medical negligence cases, and in other professional negligence actions, the statute of limitations is said to be one year from the date of the occurrence, or one year from the date of that the injured party discovers, or reasonably should have discovered, that he or she has been wronged or injured. Thus, in these types of cases the otherwise applicable one year statute may be extended well beyond one year from and after the occurrence, by virtue of what is referred to as the discovery doctrine. Questions concerning potential applicability of a statute of limitations to any given situation should be discussed with counsel as soon as possible.

12. How much are attorney fees?

At Wilson, Polites & McQueen, all of our personal injury actions are handled on a contingency fee basis. This means that payment of the attorney fee is contingent upon our obtaining a recovery for you, and that the attorney fee will be based upon a percentage of recovery. The standard attorney fee agreement for most types of personal injury actions is one third, or 33 1/3%, of any amounts recovered. The contingency fee agreement for medical negligence actions and product liability actions if 40%, due to the complexity of those fields of litigation, as well as the high expenses typically associated with such claims.

At Wilson, Polites & McQueen, we customarily pay all the costs up front for our clients. Our clients have been injured, and are typically off of work, and lack the financial resources to challenge corporate defendants and/or insurance companies. We therefore, as a general rule, prepay all expenses of litigation on behalf of our clients (i.e., doctors examinations, medical records, depositions costs, expert witnesses fees, etc.) with the understanding that these expenses will be reimbursed to us at the conclusion of the case, out of the proceeds of any recovery.