maybe.  Maybe not.  The point is that you should NEVER, EVER take your legal advice from the other driver’s insurance company.  Remember, it’s their JOB to pay you NOTHING or as LITTLE as possible. 

Many times, the insurance adjuster will say things like “sorry but you don’t have a serious injury as required under N.Y. law but because we feel bad about what happened to you, we are willing to pay you $500″. 

This is wrong, improper and even illegal for this adjuster to do this.  First, he’s not a lawyer and surely not your lawyer so it’s absolutely improper for him to be giving legal advice to you.  Second, most often it is way too early to tell whether you will have a serious injury or not.  Many people don’t know the full extent of their injuries for months after a car crash.  Third, do you REALLY believe they are paying you $500 because they feel bad?  No way.  They are paying you $500 because they want your signature on a Release.  A Release is a legally binding document that says you are giving up ALL rights (both past and future) in exchange for the money.  Once you sign off, you are done forever even if you need surgery two months later or start to have problems that disable you from work forever. 

Bottom line– you need YOUR OWN attorney to give you proper advice about whether you should settle your case or not. 

If you are in doubt about whether you should settle your case or not, feel free to E-mail us at info@ziffflaw.com or call us at 800-ZIFFLAW and we will tell you whether what you are being offered is fair or not.  Don’t worry, if you call or E-mail us you are not obligated to hire us but we will help you figure out whether the insurance company is trying to take advantage of you or not.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866  Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com     http://www.zifflaw.com 

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Sometimes I am dense. I’ve been reading blogs for years (and now blogging myself), but I never stopped to explain to those folks who may be new to blogging what a “blog” is and why subscribing to blogs can be a great idea.  As someone who may have stumbled on to this blog via a search engine search or a link from another site and who may not really understand what all this “blogging stuff” is all about, I thought it would make sense to briefly explain what blogs are and how you can subscribe to a blog to bring interesting information to you (instead of you having to go out and search for info).

As someone who loves to “play” with new technology (just ask my long-suffering wife!), I sometimes forget that other folks barely tolerate or even hate new technology (folks like my Mom, whose VCR has been flashing 12:00 for 3 years.)

But what I have found is that even these technology-haters will embrace new technology when it serves an interest or need in their lives. So I thought I would use this article to explain why I think everyone can benefit by reading blogs on topics that interest YOU. And trust me, there are blogs on virtually every topic you can imagine from the most exotic hobbies, to travel, to professions, to sports, to technology, etc. If you have an interest, there is bound to be at least one and maybe hundreds of blogs that discuss that interest in great detail.

Put most simply, a “blog” is simply a great way to have information delivered directly to you AND, if you wish, for you to be able to send your comments, questions or ideas back to the blog author.

The good news about the automatic delivery of blog articles is that you don’t have to go out and hunt down information– once you have subscribed to a blog (I will explain how easy it is to subscribe to blogs below), new information is automatically sent to you whenever the blog author writes a new article. That means no more having to go back to a website you enjoyed to see if they have added any new information since the last time you visited– you just sit back and let the new stuff be delivered to you.

As for being able to add your own comments to the blog: This lets you share in the conversation about the topic with both the blog author and the blog readers. The two-way communication between the author and readers can be very interesting and thought provoking. Commenting is totally optional and if you just want to be a silent blog reader you can easily do so for as long as you want without ever posting a comment.

So how do you subscribe to a blog? Let’s use mine as an example. If you like what you are reading here and have an interest in topics involving New York law, you can easily subscribe to my blog several different ways:

The easiest way is to just sign up here and we will automatically send new posts to your email address.

Another easy but more sophisticated way to subscribe is to use something called an “RSS Reader”. This is software that goes out and automatically grabs the posts from any blogs you have subscribed to and pulls them back on to your computer in one convenient location for your reading pleasure. If you already have an RSS Reader installed on your computer, you can just hit the Subscribe button on our blog.

If you do not have an RSS Reader, you can download a great FREE RSS Reader at: www.google.com/reader.  Google’s Reader is great and the price can’t be beat!

Want to learn more about blogs? You can download a cute and highly informative video about them by going to http://www.commoncraft.com/blogs.  They also have a great explanation of RSS here.

Happy blog reading!

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866  Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com     http://www.zifflaw.com 

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Below is an E-mail exchange between me and a fellow who was recently involved in an auto accident near Buffalo, NY.  This fellow, like most accident victims, was very frustrated by “the system”:

• His car was totalled but because the insurance company only has to pay the fair market value of his car, rather than the replacement cost, he will lose money.
• He is suffering both back and neck pain yet he wants to work.  Because he has a computer job and an accomodating employer, he can manage to work, but he recognizes if he does work, he will not qualify as having suffered a “serious injury” as is required to bring a claim against the jerk who rear-ended him.  In other words, he gets burned if he goes to work and rewarded if he does not…..

Worst of all, this fellow got what I think is BAD ADVICE from another Buffalo law firm (incidentally, one of the mega-firms that you see on the TV every 15 secs!) who told him to NOT work and to “milk it”.  For the reasons discussed below, I think this is horrible advice and my recommendation to my clients is to ALWAYS tell the truth.  And this isn’t just because I am a goody-two-shoes (although I do take great pride in my honesty), it’s because I am convinced that dishonest always ends up backfiring……..

From: Todd
Sent: Saturday, February 02, 2008 11:17 AM
To: James B. Reed
Subject: RE: Question

Jim,

From my research I had surmised about the same [I had explained the "serious injury" threshold to Todd in an earlier E-mail that he is responding to]. I suppose it is safe to say that the laws now mirror our current health system which unfortunately leaves a large hole in meeting the needs of the American citizen. This holds especially true if you are a hard working honest individual. For instance, some of my first advice concerning this matter was to not work at all and quite literally to milk this event until workers compensation had to pay for lost wages. This, however, is completely against the reality of my character; as I am extremely honest and hard working. In my early days I worked construction and injuries and sickness were just not viable excuses to miss any work. Luckily today, I work in the computer field and the injuries I have do not prevent me from servicing my clients from my bed. Add to this my current employer is a wonderful company that has treated me extremely well.

I apologize for running on and on over this, but I have a lot of frustration and emotion. I had a terrible night of pain and I feel as though I will endure all of this for nothing than more costs to me. For instance, I will lose money on the gap between the actual value of my vehicle and the loan. I had 0% financing on this vehicle and I will not have this rate again as it is currently not being offered. I will have to by new glasses to replace the ones destroyed in the accident, etc. Sorry, I am doing it again.

So who in the New York Judicial system reigns as the god of what is and is not a serious injury? Would surgery for soft tissue damage count or is my only recourse that I show evidence of healed stress fractures later. From the research I have done so far it looks like you can have a broken bone and heal in three to six weeks and be able to sue for pain and suffering. But, you could have soft tissue damage, go through surgery and walk with a limp the rest of your life and not be able to receive anything. I need my medication to take hold and get me out of this mood.

Yes please send me your packet. Above all I would like to work with an attorney who is accessible open and up front about how all of this works. Also thank you so much for your time. It is very unusual to have such access to a lawyer like this. The other companies I talked with I dealt with a “claims representative” or phone operator.

Thanks, Todd

 __________________________________________________________

MY RESPONSE TO TODD

Todd:

I TOTALLY understand your frustration. I know the system seems upside down– the hardworking honest person who quickly returns to work gets penalized (”Sorry Mr Hard Worker you have NO serious injury”) while the person who “plays the system” by staying out of work for the required 90 days seems to be rewarded (”Cha-ching Mr. Malinger, you win!).

I agree that the way in which N.Y. defines “serious injury” at times makes no sense because it does not fairly account for soft tissue injuries which can be very painful and debilitating. Come on, how fair is it that a tiny fracture of your little finger qualifies as a “serious injury” while someone with a low back injury who can barely drag himself out of bed does not qualify? Orthopedic Dr’s will tell you that broken bones often heal without any permanent problems while soft tissue damage like ripped and torn ligaments, tendons and other soft tissue ALWAYS leaves behind scar tissue that permanently impairs that soft tissue.

But what I can tell you is that I think the advice you were given by your first lawyers to “stay in bed and milk it” is BAD ADVICE. After 20+ years representing folks injured in NY accidents and having tried many cases before Upstate NY juries, I think juries are VERY perceptive and they can smell a malingerer a mile away. At trial, fakers lose!

So, my best advice is BE HONEST AND TELL THE TRUTH. If you are truly hurt and can’t go to work, then stay home. If you can tolerate the pain, then go to work. I have been pleasantly surprised to see that 99% of the time, if folks are honest, things will work out as they should. With that said, if you are hurting and even if you are going to work, it is still very important that you continue to see your Dr’s on a regular basis and that you follow all of their advice– if they say go to Physical Therapy, go to every appointment; if they say take painkillers and muscle relaxants, then take them; etc. Just because you are able to work in a job that is not physically intensive, does NOT mean that you have not been injured.

The bottom line is that only time will tell if you have a qualifying “serious injury” and no one has a crystal ball. That’s why I tell everyone that any insurance adjuster who tells you “you don’t have a serious injury” is totally full of BS because no one knows for sure until we see how your medical care progresses.

A true story illustrates the point: A friend of mine, John, comes to see me one month after an accident where he was rearended in a tractor-trailer accident. At the time, he has both back and neck pain but so far his xrays are normal and his Dr’s just have him taking muscle relaxants and pain killers. He is able to work because he has a desk job. I honestly told John that it’s too early to tell if he will have a qualifying “serious injury” but tell him to keep me posted about his condition. Fast forward one year. John’s back & neck have both gotten progressively worse. Painkillers and muscle relaxants aren’t working. Physical therapy and chiropractic treatment isn’t working. The insurance company finally authorizes MRI’s of his neck and back revealing herniated disks in both his neck and low back. He ends up with three separate surgeries. I end up settling his case against the rear-ending driver for $975,000. His case went from being worth $0 to almost a million bucks and I truly believe the fact that John toughed it out and attempted to work through the pain made his case worth more than if he had tried to milk it. What goes around, comes around!

So, let’s see how it plays out and take it one step at a time.

We will send our packet of information on Monday. In the meantime, enjoy the SuperBowl!!

Thanks, Jim

PS Forgot to answer your question about who “reigns supreme” in deciding serious injury– it is the Supreme Court judge assigned to hear your case.

_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com
http://www.zifflaw.com

——————————————————————————–

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First off, I want to thank the readers who have responded to the previous post - that’s the whole point of writing a blog; giving help or advice or just providing a place to sound off on a hot topic.  Judging by the response here, as well as what I see in my own practice, this is a hot topic indeed.

To be perfectly honest, the deck is stacked against the victims of medical malpractice.  The public (the same people who end up on a jury) is under a constant assault of propoganda from the medical lobbies and insurance industry trying to convince them that medical malpractice is a myth, that trial lawyers get rich by bringing frivolous claims (see Jim Reed’s previous article regarding this topic) against innocent doctors, and that these same trial lawyers are causing doctors to abandon certain practice areas and states in droves leaving people without adequate medical care.  Needless to say, none of this true.   In fact, the opposite is closer to the truth.

Medical malpractice is easily the most complicated, most expensive, and most heavily defended type of trial work we do.  In almost every other type of case if you show the insurance company that you have a strong case, they will at least talk with you about a reasonable settlement at some point short of the court house steps.  This is not the case with medical malpractice cases, though.  These cases are defended to the death, and settlement discussions never occur until the case is trial ready, and ususally not until the jury has already been picked.  Medical malpractice cases are expensive, too.  We routinely spend $50,000.00 dollars or more on expert witnesses, pre-trial depositions and exhibits to be used in court, and have spent as much as $80,000.00 on a single case.  Part of the reason these cases are so difficult to settle is because malpractice insurance policies are written differently that just about every other type of insurance, in that the doctor’s permission is required for the insurance company to settle the case.  Since a malpractice award has the potential to affect a doctor’s medical license, the doctors routinely refuse to permit a settlement until the last minute. 

Knowing that we are going to have such a significant investment in the case, we have to be careful about the cases we accept.  Handling medical malpractice cases is a good way to lose your shirt if you don’t know what you are doing.  The very unfortunate result is that we are sometimes forced to decline cases even where we believe malpractice has occurred simply because there are insufficient damages to justify bringing the case.  This is exactly the way the insurance industry and doctors lobbies like it.  In fact, they are constantly trying to make it even harder to bring malpractice cases, most recently by pushing states to enact “tort reform ” bills, usually in the form of caps on damages.

In case you can’t tell from this long post, the actions of the insurance industry and medical lobbies has us fuming.   You should be, too!

 Thanks for reading,

Adam M. Gee, Esq.

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