1. What you should do immediately after an automobile accident
2. Common questions asked about personal injury cases
3. Common questions asked about immigration
4. Driving while intoxicated - what's really at stake?
5. Injured on the job, what can you do?
6. When do I have a medical malpractice claim?

(1) WHAT YOU SHOULD DO IMMEDIATELY AFTER AN AUTOMOBILE ACCIDENT:

It is understandable that after an automobile accident you concern yourself with your car and your injuries, and not about how to protect your legal rights. Unfortunately, this path may lead you to jeopardize an insurance claim. You should know there are a few things you should do, which take little effort, but in the end will serve to protect you.

First, after an accident the police generally arrive. If they do not you must call them. Unless it is a necessity do not move your car until they arrive. When they arrive calm down and give them an accurate account of the incident. Then get the officer's name and report number, as well as the address and phone number of the insurance company for the other driver. Additionally, do not rely on the police to obtain witness information. You must, before leaving the accident scene, make sure you have the name, address and telephone number of all witnesses.

If you are hurt in any way you should see your family doctor immediately or go to a hospital emergency room. Be aware that a common insurance company defense is claiming a person was not hurt in the accident because they waited several days to see a physician.

Next, call your own insurance company as soon as you get home. This is important since your own carrier may, depending on your policy, may be responsible for a Personal Injury Protection claim. This insurance, assuming you purchased it, provides up to $2,500.00 for lost wages or medical expenses. Furthermore, in the event liability is later denied your carrier will be responsible, under your collision coverage, for your own property damage claim, which may also include towing and rental car expenses.

Do not talk to any representative for the other driver including his or her insurance company. They may call to obtain a recorded statement or ask you to settle for a small amount. They are not calling to help you. Actually, that seemingly harmless statement is often used against people when the liability carrier raises defenses to deny the claim. Be aware that a common defense that actually arises from the statement alone includes "contributory negligence", you were somehow partially responsible for the accident, this arises in all forms including but not limited to speeding and failure to pay proper attention.

(2) COMMON QUESTIONS ASKED ABOUT PERSONAL INJURY CASES:

Many people who are involved in accidents where they sustain a personal injury decide to retain an attorney. Most, at the initial interview, have numerous questions. Below is a list of the most common questions with their respective answers.

When can I expect to receive compensation?
The answer depends on how hurt you are and how long you treat with the doctor. No case should be concluded while a person is still treating. The value of any case depends on the injury, the length of treatment, medical expenses and lost wages. Once treatment is concluded all the above can be determined and set forth in a demand letter to the insurance company.

How long should I treat?
The answer is until your doctor determines that you are better. Persons who stop treating prematurely and then decide later that they want to treat again often have problems being compensated for additional treatment. Insurance companies are skeptical about paying the tab for persons who have stopped treating for a period of weeks. If the doctor informs you at some juncture that there is nothing more he can do for you, you might obtain a permanent disability rating. You then can be compensated for a permanent disability even though you are no longer treating.

What can I be compensated for?
You can be compensated for your property damage including a rental car and damage to your vehicle. Lost wages may be reviewed, as long as you file tax returns and have a slip from your doctor stating you are off work as a result of the accident. Additionally, you can expect to recover all your medical bills that are reasonably related to the accident and be compensated for pain, suffering, inconvenience, physical impairment and disfigurement. Damages in this category can be broken down to include, damages for emotional distress, pain while you were under active treatment, thereafter, and for any disability. Compensation may also include damage to the family and spousal relationships. Importantly, damages may not be reduced by a defendant insurance carrier if you have been reimbursed for medical expenses and/or lost earnings from another source. Finally, these types of damages are not income within the meaning of Federal and Maryland income tax laws, and therefore, you will not owe or have to pay any income taxes on the amount received as damages.

Will I have to file suit to collect just compensation?
In most cases no. As long as there is a police report in your favor and/or witnesses, the insurance company will in most cases accept responsibility (liability). Then any dispute concerns solely the amount they will pay for your damages. Assuming there was damage to your vehicle, and you sought treatment immediately, litigation can usually be avoided.

(3) COMMON QUESTIONS ASKED ABOUT IMMIGRATION:

How do I become a Lawful Permanent Resident?
To be granted the privilege to live and work in the United States one must go through a multi step process. This process begins with sponsorship by either a United States citizen spouse, parent or child (if child is over 21 years of age). Sponsorship can also be through an employer, willing to employ you full time and permanently. The length of time it takes to receive your permanent residency depends on the type of sponsorship and the United States Citizenship and Immigration Services.

I am visiting the United States and I want to go to school.
If you are in the United States on a valid nonimmigrant visa and you wish to continue your education, either through academic or vocational study you can apply for a F-1 or M-1 student visa. The F-1 , academic study, visa allows you to attend an accredited academic program full time. As a F-1 student you are allowed to enter and exit the United States. The M-1 visa is for those wishing to pursue vocational study such as culinary arts, cosmetology, mechanical technician, etc. Spouses and unmarried children under 21 years of age may come to the United States with the student.

How can I renew my Permanent Resident Card (Green Card)?
Your Permanent Resident card or green card as it is commonly known is your license to work and live permanently in the United States. The Permanent Resident card is issued for a period of ten years. If your card has expired or is about to expire you must renew your card. Renewal of your Permanent Resident card can be done by mail and/or on-line using Form I-90.

How can I become a United States Citizen?
In short, to become a United States citizen one must be a lawful Permanent Resident, possess good moral character, read, write and speak sufficient English. You must reside in the United States continuously for a period of five years, three years if a spouse of a United States citizen, before the filing of your application. Automatic bars to United States citizenship, include convicted aggravated felons, and convicted controlled substance offenders.

How can an employer sponsor a foreign worker?
Employers can sponsor foreign nationals who fit into one of three categories: skilled workers, professionals, and other workers. Skilled workers are workers capable of performing a specific job which requires at least two years of training or experience. Professionals are workers who have at least a bachelor's degree (4 years). Other workers are those who can perform jobs requiring less than two years of experience or training. All such workers require a labor certification from the U.S. Department of Labor.

(4) DRIVING WHILE INTOXICATED - WHAT'S REALLY AT STAKE?

If you drive while intoxicated (DWI) you run the risk of killing or seriously injuring yourself and someone else. In addition you run the risk of losing your license, going to jail, losing a security clearance, a job and damaging your reputation. Maryland, Virginia and the District of Columbia have all recently lowered the legal limit for driving while intoxicated.

Defenses to DWI, such as, an unauthorized stop by the police are losers. If you are driving in an unusual fashion, i.e. swerving the police have the right to stop your vehicle. Arguing later, in Court, that you were not swerving, is not even possible. Further, the police have the right to stop your vehicle at a sobriety check point. Upon being stopped, if the officer suspects that you were intoxicated, (in other words if you demonstrate any of the signs such as slurred speech, blood shot eyes or alcohol smell) you can be asked to perform certain field tests. Field tests include a test involving your eyes, speech (the alphabet), and physical ability (walking a straight line). You may also then be asked to take a chemical sobriety test. Our advice is to take the test and cooperate even if you know you are going to fail.

In the event you are charged you will be given certain documents. One paper is a temporary license and motor vehicle hearing request form. This form; a long with the hearing fee should be mailed to the MVA immediately so you obtain a license hearing. If it is your first offense the hearing should enable you to avoid a restricted license instead of a suspension.

In addition to a MVA hearing you will have a hearing in the District Court in the county where the offense occurred. At trial the outcome will depend on actions that you have taken since the DWI. Prior DWI convictions are taken very seriously and often result in some jail time. On the other hand, if you have not been arrested before and have enrolled in an out-patient Court approved alcohol rehabilitation program, the Court will look more favorably upon you. In Maryland, if you follow certain Court imposed restrictions you may obtain a probation before judgment. Probation before judgment means that if you are not arrested again during the probationary period and follow the Court's restrictions and/or requests you will have no criminal record for this offense. A probation before judgment means there is no conviction, therefore MVA can impose no points and your insurance rates will not go up.

(5) INJURED ON THE JOB, WHAT CAN YOU DO?

If you are injured on the job, chances are you will be protected under your jurisdiction's worker's compensation laws as long as you follow proper procedures. Following certain procedures is a prerequisite to recovering for any work related injury.

Worker's Compensation is a no-fault system designed to protect, and for the benefit of workers. Therefore, even if you are at fault, in most instances you can still recover since the statute states that employers are "strictly liable."

To recover you must have sustained an "accidental injury." This means that the injury cannot be just an unexpected result but also must have an accidental cause. What is and is not an accidental cause is often the subject of litigation.

In addition to proving an "accidental injury," the statute requires that you have an injury arising out of or in the course of employment. Once these two elements are satisfied you must then notify the employer of the injury. This is done by filling out certain required forms.

>Once the proper forms are filled out and filed you are entitled to payments while you are in the "healing period." These benefits are called temporary total benefits. They are for compensation while you are disabled and unable to work by reason of the injury. Compensation for temporary total is based on two thirds of your average weekly wages, subject to your jurisdiction's salary cap. In order to recover these benefits a physician must indicate that you are disabled and cannot work.

If you return to work but are still affected by the injury you may continue to see a doctor and ultimately obtain a permanent disability award. This often comes in the form of permanent partial disability payments. This means the disability is partial with respect to quality but permanent in respect to time. To obtain these payments you will first need to obtain a disability rating from your doctor. Worker's compensation schedules set a value for the injury of each body member. Compensation often depends on the percentage of disability on that particular body part.

(6) WHEN DO I HAVE A MEDICAL MALPRACTICE CLAIM?

In medicine no one can guarantee results. In fact, medical procedures do not always work out the way one anticipates. In some instances patients are not happy with the results of their medical care. A bad result, however, does not mean medical malpractice occurred. Medicine is not an exact science. The law recognizes this fact. Below is a summary of what you must prove to have a valid medical malpractice claim. This is just a brief outline and by no means is meant to be all inclusive.

A medical malpractice suit in most instances is brought as a claim for negligence. To prove negligence, you need to show there was a duty owed by the medical provider, that the medical provider breached that duty and that the breach of duty caused damages. Hence, there are four elements to a medical malpractice claim sounding in negligence; (1) duty, (2) breach, (3) causation, and (4) damages. Each of these four elements must be proven to succeed. In the event you cannot prove one, your claim fails.

In respect to duty, a physician is held to a "reasonable standard" of care, i.e. the care practiced by other physicians in the same specialty. To prove a physician breached the duty of care you must have another doctor in that same field testify as to what the standard is, and as to how this physician breached that standard. Further, the expert must be able to rule out other possible causes for your problems. He must be able to state within a reasonable degree of certainty that what happened to you was caused by the physician's breach of duty of care. Once this is accomplished you then must prove each element of your damages which include, among others, damages for pain and suffering, lost wages, medical expenses and spousal services. Additional damages apply in death cases. Finally, even if the negligence elements are met, the claim may fail because it was not timely filed. Each jurisdiction has different limitation requirements.

Obviously, since proving the elements of a medical malpractice claim involve expert testimony this is almost always a costly endeavor. Therefore, even if you have a valid medical malpractice claim someone with experience must evaluate the file. In each instance where you have a claim you must weigh the costs of proceeding verses the probable outcome. Unfortunately, unlike other instances where cases can be worked out with adjusters, in our experience most medical malpractice cases are contested and therefore end up in litigation. Litigation, in addition to being costly, is also time consuming. This factor must also be considered before proceeding.

In conclusion, in order to have a valid claim you must: (1) satisfy the four elements of negligence, (2) file before limitations expires, and (3) have large enough damages to justify proceeding.

DISCLAIMER

This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

Copyright (2006) by Portner & Shure, P.A. All rights reserved.