What can I do Right After an Accident to Save My Personal Injury Claim From Being Destroyed?

Of course many badly injured accident victims can’t do anything right after the accident because they are unconscious, wreathing in pain, or dead. For those lucky enough to have escaped those misfortunes, there are two options, a good one and a bad one: (1) do nothing (bad) or (2) protect your claim! (good). We obviously recommend number 2.

We get a lot of questions about what to do right after an accident. Here are the most common ones, with our answers.

Yes! Take pictures before anything is moved or changed. If you slipped on snow and ice, photograph or even film the problem area from different angles and distances. If it is a car accident, photograph where the cars are in relation to each other and to the road, stop sign, etc. Also snap some shots of any damage to the cars. If some kind of household object broke apart and injured you, photograph it and preserve it without altering it. If you can’t take pictures, have someone do it for you.

Yes. First, get the contact and other information from the person responsible for the accident. If it’s a car accident, just ask to see his insurance card. If it’s some other kind of accident, try to find out who was responsible and get his or her information (e.g., owner of the dog who bit you or knocked you down, owner of the property where you slipped and fell). Also, look around for witnesses and get their basic contact information (at least a name and telephone number). If you are too hurt to do any of this, and a friend of family member is with you, get them to do it for you.

Yes, if appropriate, call the police to come document everything. This is true for car accident cases always, and anytime any laws were violated. For example, if you were the victim of an assault, call the police as soon as possible. Of course you are not going to call the police for something like a slip and fall, or a construction accident. Police only investigate crimes or violations of the law, so if no obvious law was broken, the police will not respond to your request.

Yes, if you were in a car accident. Otherwise, generally not. If you were in a car accident, even if the accident was someone else’s fault, the insurance for the car you were riding in or driving will pay your medical bills and any lost income. If you delay in notifying them, they may deny you coverage.

Absolutely! Very often accident victims delay getting medical attention until days or even weeks after the accident, thinking the pain will get better on its own. This behavior leads to two problems: First, the delay may impact your chances of making a speedy and full recovery. Second, even if the delay does not hurt you, it will almost certainly hurt your case. When you eventually bring a personal injury claim, the insurance company will argue that you really were not hurt by the accident since you did not even bother to go to the hospital. They will argue you either got hurt doing something else later on, or else you decided, days after the accident, to invent pain symptoms so you could make a claim.

Your medical treatment is important not only to ensure you make the best recovery you can, but also to document your personal injury case. Most clients we have represented get treatment without prompting. At the very least, they want to make sure they are ok. There is an exception to this rule: The “strong and silent type”. Some men believe it is unmanly to admit to pain. They believe it is best to ignore it and “shoulder on”. Sadly, some of those men end up having underlying problems that could have and should have been dealt with early on. When they finally figure out just how injured they really are, and they seek treatment and get a lawyer to bring a claim, both the treatment and the personal injury claim are already compromised.

Why is the claim compromised? Because as far as the insurance adjuster is concerned, if an injury isn’t documented, it didn’t happen. If you didn’t get treatment, it didn’t hurt. Period. At least that’s how the insurance company sees it. The only way they will believe you suffered for the first three months after your accident is if you reported pain to a doctor, the doctor wrote it in his records, and provided treatment for it.

Sometimes injured victims, usually “tough guy” males, make the mistake of going to see their doctor a couple of times, or maybe even for months, and then deciding it’s “not worth it” and stop going. They might then go back to the doctor months later when things get worse. Don’t be that guy! If you are that guy, you will have created what we lawyers call a “gap in treatment”. The insurance company lawyer will argue that the months-long lapse in treatment proves that you were healed when you stopped seeing your doctor. Then, when you went back for treatment, you must have re-injured yourself doing something else.

Some people have the opposite problem of “Mr. Tough Guy” who underplays his injuries. Just as you should be careful to report all your symptoms, you must be equally mindful not to exaggerate them. The client who exaggerates his injuries does just as much – or perhaps more – harm to his case. Doctors are on the lookout for patients with accident claims who appear to be “malingering”. If you overplay or exaggerate your symptoms, next thing you know a sentence like this will appear in his medical records: “patient appears to be malingering or exaggerating symptoms”. This sentence will torpedo your claim. It’s a bombshell. The insurance adjuster who reads that one line – even if sandwiched between reams of solid medical reports documenting your injuries -- will be rubbing her hands and drooling as she imagines how that sentence will play out in front of a jury.

Bottom line: Get good medical care. Keep seeing your doctor for as long as your DOCTOR believes it is necessary. Honestly and accurately report to him or her all the symptoms you are having. Listen to his or her advice. Take any and all medications and get any or all therapy he or she recommends. This is the best course of action to (1) make you heal and (2) document your case.

Just as important as things you must do after an accident are the three things you must not do:

• (1) If the at-fault guy’s insurance adjuster asks me to sign anything or to give a recorded statement, should I?

  NO! Never sign any documents, or give any “recorded statements”, to anyone without first consulting with an attorney. What you sign or say can come back to haunt you if you end up bringing a claim for your personal injuries. Insurance adjusters are notoriously good at getting you to say things that tend to hurt your case later on.

• (2) Should I negotiate with the insurance adjuster?

  NO! At least not without first consulting with an attorney. The adjuster may offer you a small amount of money. Don’t take it! There is plenty of time for that later. Before you can even talk about money you need at a minimum to (1) make sure you know the full extent of your injuries; (2) find out – from an attorney – what your case is likely worth; (3) find out how much coverage the at-fault party has. All this takes time. There is no rush! For most personal injury cases in New York you have three years to sue.

• (3) If I think the accident was partly my fault, should I say so?

  NO! Nor should you say anything to that effect at the scene or afterwards (except to your attorney). Sometimes you want to apologize to be polite or nice, or you actually feel it was partly your fault. But you could be wrong about whose fault it was! Even if you think it was your fault, evidence that comes up later might show that it was also the other guy’s fault, or, for example, the road designer’s fault. But if people have heard you say “it was my fault”, that sentence will be waived before the jury time and time again to show that it was all your fault. So don’t say it, even if you think it!

Ok, now we have covered the after-the-accident do’s and don’ts. There is one last question that no one thinks to ask us but we are going to answer anyway:

NO! Not necessarily. If days or weeks or even years have passed since your accident, and you are thinking, “gee, I did everything wrong”, don’t worry! A competent personal injury lawyer is trained to fix your mistakes. We can send investigators out to scene of the accident to interview neighbors or others, track down witnesses, and hire accident reconstructionists. We can make sure you get the kind of medical treatment to not only best treat your injuries but also to document your injuries and preserve your claim. We are trained to build successful cases even when all the evidence has not been preserved. In our initial free consultation, we will take a through inventory, from you, not only of all the available evidence, but of all possible “leads” that may take us to evidence.

For example, we have successfully brought a number of cases where the client had no photographs of the icy condition that made him slip and fall, but were able to prove the case through the testimony of a meteorologist coupled with salting/plowing records. In car accident cases, we can often prove a defendant-driver was at fault, even when all the witnesses disappeared, by having an accident reconstructionist study the physical damage to the vehicles or by subpoenaing the defendant’s cell phone records.

So don’t hesitate to call us to set up a free consultation. Or, if you would like more free information, don’t hesitate to order our free book, “Understanding Your New York Personal Injury Claim” by Michaels Bersani Kalabanka lawyer Mike Bersani. If you chose to hire us, here is how the process works:

• (1) Getting to know you. Our first meeting will probably take up to an hour. We will thoroughly question you, and examine whatever records you have, to gather all available evidence and leads to evidence. We will also get to know each other and decide whether we want to work together on your case. If we agree to work together, we will both sign our retainer agreement.
• (2) Gathering records. Your medical records are extremely important and will play a big role in proving the “value” of your case. Since we need to be sure we get ALL the records, we will have you sign authorizations allowing us to write directly to each of your medical providers, who will then send us all your records. From time to time, we will write them to get updates. We will similarly gather any records of your past income should you be claiming lost income. Relax: gathering records is all on us. All you have to do is sign the authorizations.
• (3) Getting our ducks lined up. We will also write to all the relevant insurance carriers, defendants, etc. We may also take statements from witnesses. This will ensure we have everything in place for when we eventually make a settlement demand.
• (4) Waiting. Yes, that right. The next step is usually just waiting. Waiting for what? For you to heal. We can’t make a settlement demand until we know the extent of your injury, and whether you will have a permanent loss, and if so, how severe that loss will be. If we settle before we know the permanent consequences, then we will sell you short. The insurance company will not pay for permanent injuries as long as you are still treating and there is a chance you will completely heal. The wait may be for months or even a year or longer, depending on the injury.
• (5) Settlement. Once you are done treating, all the lawyers (yes all of us!) will study your file, your medical records, etc., and together we will decide – based on our experience in the courtroom -- what a fair settlement should be. We will then call you back to our office to meet with you and discuss our recommendation. You can accept or reject our recommendation. If you accept it, we will then try to settle the case for MORE or at least as much as we have agreed would be fair. But if the insurance company offers less than the number we agreed on, and negotiations fail to bring them up to our number, we will help you decide whether we should “take them to court” or simply take the last best offer. The decision is always yours, but we provide you will all the information you need to make an informed decision.

We have helped hundreds of people just like you get their lives back in order after suffering serious injuries.

For example, Tony, a welder, was stopped on a highway waiting for oncoming traffic to clear to take a left-hand turn into his place of employment. He was violently rear-ended when the driver was texting instead of paying attention to the road. Tony’s wheels were already turned left, and the impact flipped his car over. He suffered a disabling back injury which eventually required surgery. He was never able to return to work. A year and a half after his accident, our team got him a 7 figure settlement, which included structured life-long payments.

Here’s another example of someone we helped: Jeremy, a construction worker, was working from a ladder trying to loosen a bolt with a wrench. The ladder his employer had provided to him was inadequate for the job (too short and not stable). As he pulled at the bolt, the ladder wobbled and then toppled, bringing Jeremy down with it. Because of his injuries, he was unable to return to construction work. We brought a claim against the general contractor who ultimately was responsible for ensuring proper ladders were available. After he was done treating for his injuries, and their permanent nature was established, we were able to obtain for him a settlement large enough to replace his lost income and compensate him for his pain and suffering.

We especially enjoy helping children get justice. Mary was a severely autistic 8-year old who required physical therapy at school. Unfortunately, the assistant physical therapist failed to properly monitor Mary as she was working with a “peanut ball”. Mary’s foot got caught under the ball, her leg bowed, and her femur snapped. She had suffered a severe fracture requiring multiple surgeries. Although Mary’s extreme autism prevented her from being able to speak or communicate to us what had happened, we were able to obtain a large settlement for her, which we placed into a judicially protected “trust” to help Mary with her many future medical needs.

Please note that past case results are no guarantee of future successes. Each case is different. We have described just a few of the hundreds of cases we have brought to successful conclusion just to give you an idea of the many kinds of cases we handle.

Our team is standing by to help you, too. As a matter of fact, we look forward to your call and the chance to serve you as we have served others in our community. While we certainly can’t Guarantee any results, we may be the right law firm for you. The best way for us to find out is by calling us at 315 253 3293 to arrange a free consultation.

Yours,
The Michaels Bersani Kalabanka Team