MacGomery Law

Archive for February, 2009

Jeff Richardson publishes a great blog on the intersection of two of my favorite themes: the iPhone and lawyering. While I disagree with his position on the use of Twitter by attorneys, it is easy to understand why he feels that way. One can easily be distracted by the pull of these social networks. But I think the potential can outweigh the downside if used properly and judiciously. Jeff’s most recent post also references a review of all of the current Twitter platforms for the iPhone. Check it out!

There are lots of list available on the internet about what to do in case of an accident. And in fact, there are lists of what not to do. Anthony Castelli presents such a short, but informative list, on his website. Here is my take on things you should do to preserve the potential of your personal injury case. Remember, not all accidents result in personal injury and not all personal injuries end up in a lawsuit. But… if they do, you want to make sure you do the following:

1. Check on you, your passengers, the other driver(s), and their passengers, to make sure everyone is all right. 
2. Call 911 for police and/or emergency medical personnel.
3. Secure the scene by putting out flares or other visual markers to make sure you are safe until the police and/or emergency personnel arrive.
4. Exchange insurance and contact information with the other driver. Get as much information as possible i.e. all phone numbers, addresses, license plate number, driver’s license number, etc. Do not rely on the police officer to get this information. For this reason, always make sure you have paper and pen in your car. If possible, verify those phone numbers on the spot. Too many times cases are delayed or ruined by being given incorrect information about the other driver.
5. DO NOT TALK ABOUT THE ACCIDENT WITH THE OTHER DRIVER. Anything you say can and will be used against you. Sound familiar? People are emotional after a serious accident and often blurt out statements about fault or speed or injuries that come back to hurt their case. Only talk about these things with your insurance adjuster and/or your attorney, never the other side.
6. Take as many pictures as you can of everything about the accident: your car, their car, the scene, the individuals, signs, the road, etc. Hopefully you have a disposable digital camera in your car to use else you can use your cell phone. Pictures taken at the time of the accident are the single most helpful step you can take to preserve your personal injury claim in my experience.
7. Draw a diagram of the accident and how it took place on that pad of paper you are using. Make it as detailed and as much to scale as possible. Do not share it with the other driver. Over time memory fades and when it become necessary to recall the details of the accident, this diagram will be invaluable to you.
8. Contact your insurance company and open a claim. That’s the reason you pay insurance premiums. Yes it may have an effect on your future premiums. But if you have an accident, regardless of if you file a claim, there is going to be an effect. This way, your insurance adjuster can coordinate the payment of property damage on your car and perhaps get you a rental while your claim is being handled.
9. NEVER submit to having a statement recorded by the other driver’s insurance company. See #5. Politely decline to provide a statement and inform the opposing insurance adjuster to contact your insurance company and/or attorney.
10. GET THE TREATMENT YOU NEED. If you are not injured, do not go to the doctor or hospital. But if you are, do get treatment and do not wait. And when you do get treatment, do everything the doctor tells you to do. Many a good case is screwed up by folks who do not seek medical attention for awhile only to find out they need it later. At that point it is harder to tie to your accident. Similarly, if the doctor tells you to go to physical therapy three times per week for three weeks – go. Don’t stop after a couple of visits because you think your are beginning to feel better and then find out you have a relapse. These starts and fits or discontinuances of prescribed treatment wreck havoc on your case.
11. CALL A PERSONAL INJURY ATTORNEY. Find out if you have a case. You may not, but it does not hurt to call and find out. Can you pursue a personal injury case on your own without an attorney? Sure. But you will probably have better results and less headaches if you use an attorney.

I was fortunate to be asked to make the above titled presentation at the Maryland State Bar Association’s “Hanging Out A Shingle” conference at the Columbia Hilton yesterday. When Pat Yevic’s asked me if I would be interested I assumed that I would be buried somewhere in the program. But lo and behold it was the first presentation of the morning before a full house of 75 attorneys. I tried to compare and contrast “old school” marketing techniques with new opportunities presented by social media and other web 2.0 platforms. Judging by the responses it went well. If you would like a copy of the presentation just drop me a note. I am trying to figure out how to post it to my blog here or on FB or somewhere else. So if you know how to do that to please tell me.

I was defending a client in Baltimore County yesterday and ran into a judge that, in my humble opinion, misapplied MD Rule 10-104. His position was that after Plaintiff files the 10-104 that the medical treatment and cost is “presumed” to be fair and reasonable and proximately caused if the doctor so states in the records. And furthermore, that if the Defendant wishes to challenge that, they can enter their own 10-104 of a DME or else bring a doctor to trial to refute.

But as I read and re-read 10-104, the purpose of the statute is an evidentiary shortcut to get the records into evidence without the need for testimony. The statute goes on to say 10-104(d)(2) A finder of fact may attach whatever weight to a writing or record that the finder of fact deems appropriate.

To me, that says there is no presumption and that the finder of fact must consider all the evidence (including the force of impact for instance in a motor vehicle accident case) and THEN give the medical testimony whatever weight the court deems appropriate. When it was pointed out to the judge that presuming their appropriateness a priori shifted the burden to the defendant he indicated that Plaintiff had met her burden in that she presented medical evidence. When asked why he wouldn’t consider all the evidence his response was “I am not going to pick apart the medical records. They are in and I take them as is.”

I do mostly plaintiff’s work so I am on the opposite side of this argument most often. And I have had plenty of judges look at my records and say “I don’t believe that the force of this accident can cause those types of damages” or “I do believe that the costs of this treatment is excessive” and in both situations discounted the medical bills based on that conclusion. And if the judge had gone on record and said he considered all of the evidence and found the medical treatment to be reasonable and proximately caused then I would have little to quibble about. But he went on record and said “I start with a presumption…”

To me, that is incorrect and I believe my client suffered as a result.