The Plain Truth About the Practice of Personal Injury Law

Tuesday, March 29, 2011

Can I Keep All of the Money that I Received from Workers Compensation?

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In the State of Illinois an injured worker cannot sue his employer or a co-employee for an injury that is covered under the Workers Compensation Act. Monetary recover is provided without consideration of who was at fault for causing the accident and injury.  On the other hand the worker must repay a portion of his monetary benefits to the employers" insurance company if he recovers a settlement in a personal injury lawsuit filed against an independent third party that caused the accident and injury.
The Illinois Worker's Compensation Act provides that if you are injured in the course of work, and it is the fault of someone else, the employer (its insurance company) is entitled to a "lien" against any settlement or recovery obtained against a responsible third party. The idea behind the law is to avoid a double recovery to the injured party and to further force him to share his recovery from the ultimate responsible party with those that have paid his workers compensation benefits. If you do not have nor pursue a personal injury case against a third party, then your benefits do not get paid back.
Basically, this means that that if you were working and were injured due to someone else's negligence, Worker's Compensation's Insurance Company will be reimbursed for the wage and medical benefits paid to you if you get a personal injury settlement. A good example of such a situation is as follows:

You work for a trucking company and while making a delivery another vehicle driven by a third party strikes you causing you physical injuries.

When your attorney attempts to settle your case against the third parties insurance company the lien can become a serious obstacle. Perhaps the third party claims that you were partially at fault for causing the accident and offers a sum of money smaller than the amount of the workers compensation lien? In that scenario all recovered money would be paid back to satisfy the lien, leaving you with nothing. As a practical matter what often occurs is for the responsible third party to file within the third party lawsuit, what is known as a Contribution Counterclaim against your employer (something you are not permitted to do directly) claiming that its failure to properly train or supervise you caused the accident.  What this tactic does is to try and force the employers' insurance company to waive all or a portion of its workers compensation lien in return for dismissal from the lawsuit.  
As you can see the resolution of workers compensation and third party personal injury lawsuits are complicated, requiring the skills of a highly experienced attorney knowledgeable in the intricacies of both areas of the law.  When involved in a worker compensation or accident it is extremely important to retain the services of  an attorney that concentrates his practice in this area of the law.  

Rick Grossman

Saturday, March 26, 2011

Everyone Claims to be a Personal Injury Attorney!

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The longer that I have been in practice as a 
Chicago personal injury attorney the more it appears that every lawyer thinks that he or she knows how to properly handle a personal injury case.  Attorneys that concentrate their efforts in other areas of the law take on these matters, ranging from a simple motor vehicle crash to a complex medical malpractice case.  For some reason they think that if they file a lawsuit the insurance company representing the defendant will visit their office with a blank check. What they fail to understand is that insurance companies keep a "scouting report" on attorneys that handle these cases.  When insurers' learn that the attorney representing the plaintiff in a particular matter is well known and formidable, there is a greater likelihood that the case will be settled at an early date. At the same time when the attorney is a "rookie" or unknown the case will be delayed and likely proceed to trial.

These inexperienced attorneys fail to propound interrogatories to secure witness statements nor do they request the production of documents. Medical records are not ordered because they seem too expensive and depositions are not taken.  In short they do not know how to win the case.

As the case nears the trial stage these attorneys usually panic and attempt to get their client to accept a token settlement amount far below the true value of the case.  In other instances they run to the office of a professional personal injury trial attorney and plead for them to take over the case.  The problem is that the first attorney did so much damage to the case that the second attorneys "hands are tied". Treating physicians evidence depositions have not been taken.  Necessary expert witnesses have not been hired. Attempting to avoid malpractice becomes the order of the day. In many instances the trial attorney is forced to voluntarily dismiss the case.  They must then re-file the same at great expense effectively starting over.  Years go by and the client is left without compensation.

When retaining an attorney to represent you in a personal injury matter do not be afraid to ask him or her their experience handling such matters.  Check their responses and ask for the names of other clients that they have successfully represented in similar matters. Visit the web page or visit the clerk of the courts office to research how many personal injury lawsuits they have filed.

It is much easier to perform your "due diligence" before the start of the case than it is after fatal mistakes are made.
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Rick Grossman

Sunday, March 20, 2011

What is my Personal Injury Case Worth?

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After representing thousands of Chicago injury victims in a wide variety of personal injury, PI cases, the most common question asked after my first interview is “what is my case worth?”  In the typical scenario, the client has just received emergency medical treatment and remains in significant pain. At this point they may not have even have been seen by a medical specialist. They have no idea how much time they may lose from their gainful employment?  Will they require one or more operative procedures?  Can they make a full recovery or will the medical treatment fail leaving them with a permanent disability?  Will their wounds heal without scaring, on and on?

At this stage in the proceedings there is clearly no answer to the question. Until the clients’ physical condition reaches maximum medical improvement the injury attorney would be speculating by suggesting a dollar amount. This is not to say that unscrupulous injury attorneys do not regularly tell their potential clients’ that they will recover “millions of dollars” hoping to impress them into retaining the attorney, only to later learn that their case is worth a minimal sum. 

This situation creates a dilemma for the reputable, experienced Chicago injury attorney. Does he tell the client the truth that there is no way to determine the case value at this stage of the proceedings with the risk of losing the client or disclose a high speculative number? 

As a Chicago personal injury attorney, I must and always tell the client the truth but explain in detail all of the above mentioned variables which can change the dollar recovery. I then give them a range of potential monetary recovery depending upon their ultimate physical recovery. This procedure usually appeases the client on a short term basis while maintaining my integrity. I also explain to them that their case cannot be settled before they reach a level of maximum medical improvement.  No attorney in good conscious can negotiate a settlement with the at fault parties insurance company at an earlier date and risk committing legal malpractice.

Potential clients must be educated to understand the procedures that experienced, Chicago injury attorneys must follow in the handling of their PI cases. They further should be told that there will be a day in the future when their attorney will given them his or her opinion of the true value of their case based upon the testimony of witnesses, medical records and the opinions of their treating physician. They will then and only then be in a position to determine whether to settle or take their case to trial.

Be patient and you will secure a maximum settlement for the injuries and lost wages you sustained as a result of the negligence of another.

Tuesday, March 8, 2011

But the Doctor Committed Malpractice Didn’t He?

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As a Chicago malpractice injury attorney I am frequently contacted by potential clients requesting that I file a medical malpractice case on their behalf.  During the initial interview I often quickly discover that the individual does not have a “compensable” case.
Most lay persons as well attorneys unfamiliar with medical malpractice litigation do not understand the difference between “technical malpractice” and what I refer to as “compensable malpractice”. The main difference between the two can best be explained by the following examples:
Client A has a pepperoni pizza for lunch. One hour later he suffers from terrible chest pain.  He decides to visit a hospital emergency room.  The physician takes a history from Client A, who tells him about the pizza and the resulting chest pain. The physician is quite busy with other patients.  He does nothing more than a cursory examination and tells Client A that he is suffering from heartburn from the pizza. He prescribes over the counter “Tums’” or “Rolaids’s” and signs the discharge papers. Client A follows the instructions but the chest pains continue to intensify. Days later he returns to the emergency room and is given a full detailed examined by a second physician. The physician tells him that days before he had suffered a major heart attack but he will fully recover(and did recover) without complications.
Did the first physician commit medical malpractice when he failed to properly examine the patient and simply guessed that he suffered from heartburn as the victim of a pepperoni pizza? The short answer is probably yes but his actions only amounted to “technical malpractice” and not “compensable malpractice” The main distinction between the two is that Client A did not suffer any harm because of the first physicians malpractice. If on the other hand Client A suffered major additional permanent heart damage or died then the matter becomes a case of “compensable malpractice”. In other words malpractice without substantial permanent harm is effectively no malpractice at all. No experienced Chicago personal injury attorney would be willing to accept the case.
During the course of a given day “technical malpractice” occurs in most hospitals.  Patients receive the wrong medications or diagnostic testing.  Nurses may fail to promptly respond to call buttons, Doctors and staff may abandon their patients for long periods of time. Patients conditions are misdiagnosed and appropriate treatment withheld. They are often discharged too early and given the wrong instructions. Follow up appointments are not scheduled and the patient is not contacted by staff.
All of the foregoing acts constitute “technical malpractice” and only become “compensable malpractice” when substantial harm occurs.  Potential clients' and referring attorneys" can certainly benefit by understanding this important distinction.

Rick Grossman

Tuesday, March 1, 2011

What in the World is Tort Reform?

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"Tort reform" is nothing more than a conservative effort to create a social program for the liability insurance industry.  In other words it is label to hide the fact that the insurance company lobby is throwing money into the campaign war chests of state and federal legislators to see things their way. They also flood the media with false information in an effort to scare the public into the belief that their insurance premiums will skyrocket unless laws are passed to prevent the injured from receiving fair and just compensation.  Unfortunately, the masses do not understand that they pay an insurance premium for the very right to be protected and compensated in the event of a loss.  The payment is not designed to be a donation to the insurance company.

As a Chicago personal injury attorney I have spent my entire career fighting these companies for the rights of injured and the families of wrongfully killed individuals.  These "800 pound gorillas" do not play fair but rather will do anything to garner record profits. Whenever I hear the conservative lament that the problem is the "PI lawyers", I point out the fact that many high rise office buildings bear the names of insurance companies on brightly illuminated signs 50 stories above the ground, yet not a single such building is named after a plaintiffs personal injury trial lawyer!

What would truly be refreshing  is for everyone in business to admit that they have a pecuniary interest and agenda to be fulfilled and drop the false moral issues which they create to hide the same. None of us like laws that may hurt us in the wallet but please do not engage in false propaganda and expect others to accept the fiction.