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Brain
Injuries FAQs
Brain injury may
impair a person’s ability to function in family,
social and work environments. In over 25 years
of practice, the attorneys at Brett & Coats have seen the devastation that brain injuries
can cause. While some traumatic Brain Injury (TBI)
victims make a full recovery, others face
dramatic changes in basic brain function or
personality. A serious brain injury may lead to
chronic pain, inability to work and lost
productivity. Brett & Coats PLLC has been
helping Washington State and Canadian victims of
personal injury win substantial settlements and
awards for more than twenty-five years. The
information contained on this Website is offered
as a service to educate the public and encourage
accident victims to seek legal advice. The
following information should not be considered
as legal advice or applied to an individual
legal situation. For expert counsel on your
legal situation, consult with an experienced
Brett & Coats PLLC personal injury attorney.
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How
do I successfully pursue a traumatic brain
injury insurance claim?
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What types of money
damages can I recover?
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How much is my injury claim
worth?
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What should I do immediately to
help preserve my claim?
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How should I select a lawyer to
represent me?
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How much will it cost to hire a
lawyer?
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How does the insurance claim
process work?
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What can I do if the person who
caused the injury is uninsured?
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How can I deal with my
immediate medical bills?
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How long do I have to file a
claim?
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What if I have a preexisting
medical condition?
1. How do I
successfully pursue a traumatic brain injury
insurance claim?
Four requirements
must be met to receive compensation for a brain
injury insurance claim.
- You must
prove that the accident occurred due to the
reckless or negligent actions of another
party,
- You must
prove that you were injured,
- You must
establish that your injury was caused by the
accident and not by a preexisting condition
or unrelated event, and
- You must
establish that the party who injured you was
insured.
An insurance
company will only pay for a TBI accident claim
if you prove that the other party had a duty to
act with reasonable care and that the other
party failed to meet their duty. Examples of
negligent actions are having your car hit
because someone was following too close; your
injury was caused by a drunken drive, or a
driver who turned left in front of you caused a
crash. The leading causes of TBI include motor
vehicle incidents, falls, acts of violence and
sports injuries. Injury to any one area or all
of the brain can result in permanent disability,
seizures, headaches or migraines, loss of taste
or smell, memory loss, double vision or loss of
vision, speech impairments, anxiety, behavioral
problems and depression. Some TBI victims’
memory impairment may lead to a tragic loss of
self and identity.
More than one person or entity may have been
partially at fault in your accident, and you may
have even been partially at fault. In these
situations, the court distributes the fault
among all of these entities. Generally, if the
other person bore 80% of the fault and you were
responsible for the remaining 20%, you will
recover only 80% of your total damages. If
several people were at fault, there are special
rules on “joint and several liability” that
govern the portion of the total damages that are
paid by each person or entity at fault. If you
face a situation where several people or
entities may have been negligent, your best
course of action is to consult with an
experienced personal injury lawyer who can help
to prove your claim. At Brett & Coats PLLC, we
offer a free case evaluation to determine the
likelihood of a recovery and the likely range of
any recovery. Contact
us for your free case evaluation.
If you have been
injured through the fault of another, your
lawyer should immediately obtain all records,
witness statements and photographic evidence so
that the issue of fault is immediately laid to
rest. Your attorney must act promptly since
memories fade, conditions change and witnesses
move. Without proof of fault you cannot support
a claim for your injuries.
In order to prove
who was at fault for an accident, your attorney
should also obtain all investigative records,
including witness and investigating officer
interviews. In more complicated cases, your
lawyer may hire licensed engineers to
reconstruct the event.
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2.
What types of money damages can I recover?
You are entitled
to be compensated for your losses if you were
injured because of another party’s negligence or
careless actions. The justice system’s goal is
to attempt to restore you to your position prior
to your injury. While the justice system
recognizes that money cannot undo the accident
that caused your injury, it works to provide
fair financial damages to compensate for the
injury. There are six main categories of damages
you may be entitled to:
- Property
Damages - You are entitled to repair or
replacement of any property damaged in the
accident. For example, damage to your car,
your clothes, your eyeglasses or other
personal property. For more
information on Property Damages click here.
- Medical
Expenses - All costs incurred for health
care should be repaid to you including
ambulance bills, hospital bills and charges
for surgical, medical or chiropractic care.
Depending upon the type of insurance
coverage you or the other party purchased,
you may be entitled to payment of these
bills regardless of who caused the accident.
For more information on
Medical Expenses to date click here.
- Future Medical
Expenses - You are entitled to a sum of
money that will enable you to pay for future
medical care of injuries or disabilities
caused by the accident. For example, you may
be entitled to future surgical care or
future in-home nursing care if you are
disabled. For more
information on Future Medical Expenses click
here.
- Lost Income -
Even if you are self-employed or work on
commission, you are entitled to be paid for
the income lost because of your injury.
These damages are meant to cover lost wages
from your job while in the hospital, lost
income while recuperating and visiting the
doctor and for continued therapy visits
after your return to work. For
more information on Lost Income click here.
- Lost Future
Earning Capacity - If you are partially or
completely disabled from employment because
of your injury, you are entitled to a sum of
money that will compensate you for the lost
capacity to earn income in the future. For
more information on Lost Future Earning
Capacity click here.
- General
Damages for Pain and Suffering - You are
entitled to be compensated in dollars for
the pain, suffering, disfigurement and
disability you have experienced as a result
of the injury. An experienced attorney can
help to assess the dollar amount of the loss
based on their experience in other similar
cases as well as their understanding of the
local justice system. Your lawyer will be
invaluable in working with the insurance
company and substantiating your claim. For
more information on General Damages for Pain
and Suffering click here.
Additional
information on Property Damages
You are entitled
to have personal property damages paid by the
insurance company of the person who caused the
injury. If the personal property was damaged
beyond repair, you are entitled to the
difference between the fair cash market value of
the damaged property immediately before it was
damaged and its salvage value. If the personal
property is repairable, you are entitled to
recover the lesser of the cost of repairs plus
any diminished value after the repairs, or the
difference between the fair cash market value
before the damage and the salvage value. In
either case, you are entitled to a sum to
compensate you for loss of use of the property
during the time reasonably required for repair
or replacement.
Often if your
only losses are to personal property and you
were not injured in the accident, you can
negotiate a settlement directly with the
insurance adjuster without the help of a lawyer.
(Back
to question 2)
Additional
Information on Medical Expenses
As a personal
injury victim, you are entitled to any medical
expenses incurred as a result of your brain
injury. These expenses will be paid by the
insurance company of the party at fault for
causing your injury. To acquire these sums, your
attorney will collect all of your medical
records from health care providers, including
bills. This documentation is then provided to
the insurance company to prove that the expense
was incurred and that the treatment was required
because of the accident. The insurance company
may attempt to argue that you had a preexisting
condition that dictated the treatment or that
another injury required the treatment. In order
to protect you against this ploy, a skilled
attorney will obtain a complete history of
medical care predating the accident, including a
written statement from the attending physician
confirming that in their professional opinion
the need for treatment was more than likely
attributable to the accident.
Recovering
compensation for medical expenses from an
insurance company is similar to filing for an
income tax refund from the government – you need
to collect all of your receipts and accurately
fill out the required paperwork. Brett & Coats,
PLLC attorneys and paralegals are trained to
handle the paper process in a timely, proactive
manner.
(Back
to question 2)
Additional
Information on Future Medical Care
You are entitled
to compensation to pay for future medical care
related to your injury. The insurance company
will require an accurate, detailed estimate from
the physician or health care workers who will
provide your future health care services.
Your attorney
will obtain your complete written medical
records from all health care providers so that
the insurance company (and you) can see the
doctor’s diagnosis and recommended treatment for
your injury. Your lawyer will meet regularly
with physicians to review the records and help
them to address the insurance company’s
requirements in order to pay for future medical
care.
It is important
to remember that there is a one-time lump-sum
payment for future medical care paid at
settlement. Once a claim is settled, it is not
generally possible to reopen the claim.
At Brett & Coats, PLLC, we are careful to avoid
settlement until we know all of our client’s
future medical needs.
(Back
to question 2)
Additional
Information on Lost Income
If you have been
injured through the fault of another, you are
entitled to recover all the lost income caused
by the injury, including lost wages from your
job while in the hospital, lost income while
recuperating, doctor visits and any continued
therapy visits after your return to work.
Medical proof of your inability to work and the
amount of pay that will be lost due to the
injury must be calculated. If you are a wage
earner who lost a specific number of hours of
work, you are entitled to receive your hourly
wage for each hour lost. However, if you work on
commission (like a realtor), or if you are
self-employed (like a fisherman), your lawyer
must reconstruct your financial losses by
reviewing business, tax and accounting records
from prior years to determine your future wages.
Your lawyer will
obtain your complete written medical records
from all health care providers to confirm the
doctor’s opinion regarding your medical
situation. Your attorney will also meet
regularly with doctors to review the records and
help them to address the specific requirements
imposed by the insurance companies before they
are willing to concede that a client has been
unable to work because of the injury.
(Back
to question 2)
Additional
Information on Future Lost Income
You are entitled
to compensation for the loss of future income or
future loss of earning capacity. In order to
receive an award, you must provide medical proof
that your injury will inhibit your ability to
earn income in the future. You must also
demonstrate the amount of income you will lose.
Projecting the amount of future income lost can
be a simple or complicated process depending on
your type of employment. While this can be
difficult, the Brett & Coats, PLLC team is
experienced in economic reconstruction and
projection.
To prove that you
are unable to work or cannot work at the same
level of earnings you enjoyed before the injury,
your attorney will obtain a written statement
from a doctor describing your medical condition
and prognosis. This documentation is then
reviewed by a vocational rehabilitation
specialist who can better assess your ability to
perform in the work force with the medical
condition. The specialist’s review often
requires extensive physical, mental and
psychological testing. Once the vocational
specialist establishes a level of employment
ability, an economist will be consulted to
estimate the difference between the anticipated
future earnings prior to the accident and the
earnings you can now expect in the future as a
result of total or partial disability. This
difference is the loss of future earnings or
loss of future earning capacity.
If you were
partially or completely disabled as a result of
an injury caused by someone else, the loss of
future income or an inability to work at the
same level can have a significant impact on your
capacity to support yourself and your family.
Talk with an experienced legal professional at
Brett & Coats PLLC before you attempt to
negotiate a settlement with an insurance
adjuster whose goal is to minimize the insurance
company’s payout.
(Back
to question 2)
Additional
Information on General Damages for Pain and
Suffering
The law is clear
regarding a victim’s right to recover money
damages for pain, suffering, disability and
disfigurement. However, it is more difficult to
estimate the amount of money required to
compensate a victim for their loss. This
difficulty is compounded by the need to prove
the calculation to an insurance company or a
court. While medical expenses or lost wages can
be substantiated through bills or pay stubs, how
is a value assigned to pain? How do we measure
what pain is worth? Since we can’t ask
volunteers to describe how much money they would
be willing to accept to suffer a traumatic brain
injury, we estimate the money value in a pain
and suffering claim by analyzing damage awards
made in similar cases. At Brett & Coats PLLC,
we have access to state, regional and national
publications, as well as computerized data banks
to identify similar cases and project a solid
estimate of the range of awards made for similar
losses. These comparisons help us to secure the
most fair settlement amount with the insurance
company. In situations where the insurance
company refuses to pay a fair settlement, our
attorneys have the skill to present real human
losses to a jury in a compelling way. Because
our experienced personal injury attorneys are
always prepared to take a claim to trial (and
the insurance companies know it), we can usually
obtain a favorable settlement that includes an
appropriate amount for general damages in an out
of court settlement.
(Back
to question 2)
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3. How much is
my injury claim worth?
There are two
ways to estimate the monetary settlement value
of a claim, and our attorneys recommend that
both be used to achieve success in a TBI
accident claim.
To find a total
claim value, add up the amounts you are entitled
to for property damage, medical expenses to
date, future medical expenses, lost earnings to
date, future lost earnings, and general damages
for pain and suffering. Since damages such as
general damages for pain and suffering are
difficult to evaluate, the second method of
assigning a monetary settlement value is used.
Your attorney will review state, regional and
national publications and computerized databases
to find similar claims with similar injuries and
similar liability patterns to develop a
statistical analysis of your claim’s value.
If you have been
seriously injured through someone else’s fault,
you should not attempt to estimate the value of
your claim without professional assistance. At
Brett & Coats PLLC, we offer a free case
evaluation to determine the likelihood of a
recovery and the likely range of any recovery.
Contact us for
your free case evaluation.
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4. What should
I do immediately to help preserve my claim?
The answer to
this question is not: “Get a lawyer quickly” or
“be your own lawyer”. Instead, work to keep your
claim alive until you can select a proven
personal injury attorney. To support your claim
before you meet with an attorney, it is
important to preserve evidence and protect your
negotiating position. By documenting your
accident and injuries, you are substantiating
your claim and providing your chosen attorney
with a head start on your legal strategy.
The first step in
preserving evidence is to obtain the name,
address, phone number and insurance information
from the party that caused the accident. Take
photographs of the accident scene, pictures of
the damaged automobiles (if applicable),
photographs of your injury, and photographs of
yourself during your recovery period. Do not
attempt to interview witnesses to the accident.
Instead, record their names, addresses and phone
numbers so that if there is a later dispute you
will have objective bystanders to support your
version of events. Also, be sure to keep a daily
journal beginning with the date of the accident
to document all physical and mental injuries, as
well as your perspective of the accident. Bring
all of this to your lawyer once you have
selected one.
Next, preserve
your negotiating position. Do not sign anything
presented by the insurance adjuster. Do not give
a written or oral statement to an insurance
adjuster. Do not attempt to negotiate a
settlement with an insurance adjuster who works
to minimize payouts. While you are in the
process of preserving evidence and protecting
your negotiating position, you can also invest
the time to find a first-class personal injury
lawyer.
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5. How should
I select a lawyer to represent me?
When you select a
lawyer to represent you in a personal injury
claim, consider three factors:
Does this
lawyer have a reputation for excellent legal
ability and high ethical standards? The
Martindale-Hubbell Law Directory is a
twenty-four volume set listing almost all of
the lawyers in the United States and rating
their legal ability as A (very high to
preeminent), B (high to very high), C (fair
to high) or no rating. A rating of V is
given for high-ethical standards. At Brett & Coats PLLC, we are proud of our Martindale
Hubbell AV rating, the highest available.
The Martindale-Hubbell directory is also
available online at www.martindale.com. But
you don’t have to rely solely on a
publication. You can ask people in our
community who have experienced the legal
system, talk with someone who works in the
courthouse, or discuss your situation with
someone experienced in personal injury
accident claims. Ask a number of people to
see if any particular name keeps coming up.
Also, look at the Brett & Coats PLLC
attorney profiles to see that our firm’s
attorneys are well qualified to handle your
traumatic brain injury claim. For example,
Dean Brett has repeatedly been selected as a
“Superlawyer” by Washington Law & Politics
Magazine, and has been selected as a Fellow
of the American College of Trial Lawyers.
Dean Brett has served on the Board of Governors of the
Washington State Trial Lawyers Association,
the state-wide group dedicated to fighting
for victims of negligence.
Does this
lawyer have experience handling my
particular type of personal injury case? If
you have been injured by another party’s
negligence, a divorce attorney or a lawyer
who works in estate planning cannot provide
the best representation. You need to hire an
experienced personal injury lawyer with the
credentials to effectively represent your
interests. Relatively few lawyers devote
most of their practice to representing
individuals with claims for personal injury
or wrongful death. Before you hire a lawyer,
you should know how many times the attorney
has actually gone to court on a personal
injury claim. You should also know whether
that attorney has ever obtained a verdict or
settlement in a personal injury case of over
a million dollars, or over $100,000, or even
over $50,000. Don’t allow the lawyer to
answer your questions with generalizations.
Ask for specific cases with specific
results. Remember, when you talk to a lawyer
you are interviewing him or her for a job
working for you. Look at their resume. You
may also be interested in looking at our
results case
results.
Does this
attorney inspire trust and confidence? You
should hire a lawyer in whom you feel
comfortable placing your trust and
confidence. Remember, the lawyer is going to
be employed by you, to represent you. You
need someone easy to talk to, someone who
will explain and advise on your situation.
The best way to determine your comfort level
is to personally meet the lawyer. If you
want to take things a step at a time, talk
to the lawyer on the phone and test your
comfort level prior to scheduling an
appointment. At Brett & Coats PLLC, we
offer a free case evaluation to help
determine the likelihood of a successful
claim and the likely range of any financial
recovery. This is an excellent opportunity
to decide if you are comfortable placing
your trust and confidence in a personal
injury lawyer at Brett & Coats PLLC.
Contact us for
your free case evaluation.
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6. How much
will it cost to hire a lawyer?
At Brett & Coats PLLC, our clients have a choice in how
they pay for legal services. We can charge on an
hourly basis or on a contingency fee.
If you choose to
hire us on an hourly basis, we will track the
time our lawyers and paralegals spend on your
case and bill you monthly. Our hourly rates
range from $225 for lead trial attorneys to $185
for associate trial lawyers and $80 for
paralegals. On hourly billings, there are two
basic rules: all fees and costs must be paid
monthly and our firm is paid regardless of
whether your claim is won or lost.
With a
contingency fee arrangement, we are paid
one-third of any recovery by settlement or
judgment. If there is no recovery, you owe us
nothing for our legal services. However, you
must pay your own costs, such as the charges
doctors make for providing records and reports,
out of the money you receive when the case is
settled.
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7. How does
the insurance claim process work?
Insurance
companies are in business to make a profit.
Generally, the insurance company’s profit is the
difference between what it collect in premiums
and what it pays out in claims. Therefore, the
insurance adjuster’s job is to settle your claim
for as little as possible to maximize the
company’s profit. Your lawyer’s job is to settle
your claim for its maximum value.
We know how to
work with insurance companies. Insurance
companies have developed a huge bureaucracy to
scrutinize, criticize, evaluate and ultimately
pay insurance claims. The insurance adjuster’s
job is to identify false or fraudulent claims
and to refuse to pay undocumented claims. The
insurance adjuster is trying to build a file, to
critically evaluate your claim, and to pay as
little as possible to settle your claim as soon
as possible. Remember, the insurance adjuster
reports to a supervisor. If the adjuster has a
thin, small file on a claim that was settled for
$10,000, the supervisor is likely to say “You
paid too much. This file does not support a
$10,000 payment.” Conversely, if the adjuster
settles a claim for $100,000 and gives the
supervisor a thick and well-documented file that
includes complete witness statements, complete
medical opinion letters, and comprehensive
records of all medical care, wage losses, and
other expenses, the supervisor is more likely to
say, “That’s fine, the claim was worth
$100,000”. Your attorney’s role is to help the
insurance adjuster build a file that supports a
full and fair claim settlement.
Your lawyer’s
goal should be to maximize your financial
recovery from your injury. Your attorney should
have a reputation for honest dealing; for a fair
but firm settlement posture; for refusing to
settle for a penny less than the claim is worth;
and for being prepared to take each claim to
trial to get a full and fair recovery, if
necessary.
There are
basically five steps the insurance adjuster must
take in handling a personal injury claim:
- Collecting
Information
- Setting
Reserves
- Evaluating
Damages
- Negotiating
Settlement
- Defending in
Trial if Necessary
Collecting
Information. Since the adjuster must collect
information needed to understand your claim,
your lawyer should provide all the required
information to validate the claim to the
adjuster and their company. Sometimes insurance
adjusters are so busy looking for damaging
information about you or your claim that they
miss favorable information. Your attorney should
collect and highlight that favorable information
– witness statements, photographs of the
collision and your injury, opinion letters from
experts in medicine, and accident reconstruction
or economic loss. When your attorney presents
the claim to the adjuster, he is more likely to
understand the significance of your claim.
Setting Reserves.
When a claim comes in, the company must set
reserves, an accounting entry, to assure
government regulators that the company has
adequate money to pay the claim. If initial
reserves are set too low, when the time comes to
settle the claim, the adjuster will sometimes be
too limited in the amount of money he can offer
in settlement. Your attorney must get the
appropriate information to the adjuster as soon
as possible to assist the company in setting
high enough reserves that the ultimate
settlement can be for the full claim value.
Evaluating
Damages. Since the adjusters must evaluate the
claim value, your attorney should provide them
with all relevant information, including
comparable cases from state, regional and
national publications and computerized
databases, and our own evaluation of the claim’s
value to assist the adjuster in coming to a full
and fair evaluation.
Negotiating Settlement. There is an old saying,
“A lawyer who represents himself, has a fool for
a client.” Likewise, a personal injury victim
who attempts to negotiate a settlement with a
professional insurance adjuster is likely to
recover far less than the claim’s true value. Do
not attempt to negotiate a settlement of your
personal injury claim without professional
advice.
Defending in
Trial if Necessary. If a settlement cannot be
negotiated, the insurance company must defend
its position in court. To improve your chances
for compensation at trial, your attorney must
have a quality reputation, proven credentials, a
fair but firm settlement posture that refuses to
settle for less than a full claim value, and the
ability and resources to prepare for an
aggressive litigation of your claim.
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8. What can I
do if the person who caused the injury is
uninsured?
If you are
uncertain as to whether the party at fault for
the accident has sufficient insurance, contact a
lawyer immediately to help you gain this
critical information.
Brett & Coats PLLC attorneys have represented many individuals
who have been injured by an uninsured or
underinsured party who cannot pay a full and
fair claim. While these cases can be difficult,
do not give-up until you investigate other
potential sources of compensation for your
injuries. Other possibilities include
underinsured motorists coverage, the Crime
Victim’s Compensation Act, and “joint and
several” liability of insured individuals whose
negligence combined with that of the uninsured
party to cause your injuries. Although a lawyer
cannot guarantee that he or she can find
coverage and obtain a recovery for you, an
effective attorney is obliged to explore all of
the alternatives and advise you of their
availability in your situation.
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9. How can I
deal with my immediate medical bills?
To ensure that
you continue to receive the highest quality
medical care and to protect your credit, it is
important to immediately pay medical bills. As a
part of our representation in your personal
injury claim, Brett & Coats PLLC will manage
payment of your medical bills. Your priorities
are to find the best medical care, follow your
doctor’s advice, strive to reach the best
possible medical recovery, and send all your
bills to the Brett & Coats PLLC office. In
turn, we will coordinate the paperwork to obtain
payment of those medical bills through your own
medical coverage; the insurance coverage of any
parties involved in the accident; state and
federal medical payment programs; or by
arranging with your health care providers to
hold collection until you receive your
settlement.
Your good health
is too important to sacrifice quality medical
care because of financial considerations. Take
care of your health first and your Brett & Coats PLLC attorney will coordinate payment of
your medical care as part of our service in your
personal injury claim.
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10. How long
do I have to file a claim?
If your injury
occurred more than one year ago, you may have a
statute of limitations problem. The statute of
limitations requires that a claim be filed
within a certain period of time after the
accident or you will forever lose the right to
do so. Depending on the manner in which you were
injured, the statute of limitations could be
three years, two years or less from the date of
injury. Do not delay in contacting a Brett & Coats PLLC attorney. We offer a free case
evaluation to determine the likelihood of a
recovery and the likely range of any recovery.
Contact us today.
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11. What if I
have a preexisting medical condition?
If another party
is to blame for your injuries, you are entitled
to be compensated for only the injuries suffered
in the accident. If the insurance company
suspects that your injury existed prior to the
accident or that you were injured in an
unrelated event, they may refuse to pay your
claim. To prevent this situation, we obtain your
entire medical history so that we can identify
what has been reported in the records, and we
can then reassure the insurance company that no
preexisting or unrelated injury exists. The
proof of a causal link between the accident and
the injury may seem simple, but your lawyer must
work hard to eliminate the insurance company’s
natural skepticism which can lead to non-payment
of your claim.
Special rules
govern compensation for aggravation of
preexisting injuries. If your accident has been
caused by the negligence of another party and
you have been injured in an area where a
pre-existing infirmity exists, you are in the
complicated situation that requires expert legal
help. If prior to the accident you had a
pre-existing bodily condition that was causing
pain or disability and then the accident further
exacerbated the pain or disability, you are
entitled to compensation for the aggravation of
that condition.
If you had a
pre-existing condition or disability prior to
the accident and it made you more vulnerable to
injury than a normally healthy person, you are
also entitled to compensation for those injuries
and damages caused by the accident. You are not
entitled to compensation for an injury sustained
in a subsequent accident that is a normal
consequence of an impaired physical condition
caused by the original injury and which would
not have occurred had the plaintiff's physical
condition not been impaired.
The information
contained on this Website is offered as a
service to educate the public and encourage
accident victims to seek legal advice. The
following information should not be considered
as legal advice or applied to an individual
legal situation. For expert counsel on your
legal situation, consult with an experienced
Brett & Coats PLLC personal injury attorney.
For more
information on brain injuries, please see our
Brain Injuries
page.
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