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Personal Injury Q&A, Ask Lee Free

Q: I’m suffering from a whiplash injury after an auto accident.  What kind of settlement can I expect?

A: Whiplash is a serious injury. It can involve pain in the neck area all the way down to the low back. Sometimes, whiplash can cause radiating pain, like numbness and tingling in the arms and legs. Up to 250,000 whiplash injuries occurring every year, leading to chronic pain and disability that can last for years or longer. Because every accident is different, it’s not possible to generalize the average settlement for this kind of injury. The severity of the injury and the amount of treatment are important factors in a settlement amount. Whatever the injury, it is important to know legal action can be taken.

Q: In the case of a trucking accident, who is liable to be sued?

A: There are many potential defendants in a Michigan truck accident case. The owner of the tractor and/or trailer, the driver, the company identified on the trailer (even if it is not the owner or the person driving it) are potential defendants. There are also situations where the loading facility can be sued as well as the freight broker who arranged the transport of the goods in the truck when the crash occurred.

Q: What is my time limit for filing a lawsuit in Michigan after a trucking accident?

A: In almost all situations, the statute of limitations for car or truck accidents, or the time limit allowed for taking legal action in any case, is three years in the state of Michigan. Minors typically get a longer period of time.

Q: My car was totaled in an accident, but I still owe more money on it.  What can I do?

A:  This is actually relatively common. Many people owe money on cars they can no longer drive due to this exact situation. The answer here can depend on whether or not you have Gap Insurance (guaranteed auto protection). If you do, the insurance company will pay the difference between what they will pay you for a totaled car and what you currently owe to the loan holder. A lot of time the insurance company will pay the ACV (actual car value) and leave you to pay whatever is currently owed on the vehicle.

Q: Can I dispute or request an amendment to a police report prior to an accident?

A: While many times the officer on the scene of the accident will write up a report, this is not always the case. Sometimes, the injured person is taken to a hospital before the police arrive and are unable to give his or her side of the story.

If there is a factual error, this can usually be amended so long as you have proof of the accurate information. If you are disputing a fact, which is different from an error in that you don’t agree with something on the report, you may be able to submit your own statement with regard to your dispute and have it attached to the original report. This is a situation where it would be smart to seek legal counsel.

Q: How can I be sure my injury is a product of medical malpractice?

A: Every doctor is required to uphold a standard of practice (or standard of care). Should they breach this standard of care, meaning they do something incorrectly or fail to follow the proper procedure required for this standard of care, this is defined as medical malpractice.

Q: What is the time limit for filing a lawsuit in Michigan for a medical malpractice?

A:  In most situations, you have two years from the date of the malpractice to file a lawsuit against the defendants. However, before filing the lawsuit, certain procedures must be followed, including the filing of a Notice of Intent (NOI). Along with the filing of a lawsuit, an affidavit or merit signed by the correct type of doctor must also be filed. There are a lot of procedures and rules in Michigan medical malpractice cases. Because of this, it is important to contact a malpractice lawyer as early in the process as possible.

Q: Can I get money from a slip-and-fall accident in Michigan?

A: Slip-and-fall cases in Michigan are fact-dependent. Just because you got injured on someone else’s property does not mean you are entitled to compensation under the law. The hazard that caused your injuries cannot be open and obvious and the property owner must have had some sort of notice that the defective condition existed at the time of the fall. These cases are easy and full of legal minefields that can be lethal to your case. Call our office as soon as possible if you have been injured due to the negligence of a property owner.  

Q:  What is the “open and obvious” defense in slip-and-fall cases?

A:  The open and obvious rule is a defense a property owner can use to avoid liability following a slip-and-fall or trip-and-fall accident. Under the rule, a landowner is not responsible for unreasonably dangerous conditions that are there to be scene – or considered open and obvious. A condition is open and obvious if “an average person of ordinary intelligence would discover the danger upon casual inspection.” Because property owners don’t owe a duty to the general public to get rid of open and obvious conditions, they cannot be held liable for negligence.

Q.  How can I get compensation following a dog attack?

A: Under the law, there are a few different ways to get compensation following a dog attack. Under the dog bite law, MCL 287.351, a dog owner is strictly liable for any injuries caused by the dog following a bite so long as the attack was not provoked by the injured person. Because this is a strict liability statute, the injured person does not even need to prove negligence on the part of the dog owner. However, negligence is another way to prove liability on the part of the dog owner. A third way is a common law strict liability claim. In these situations, the dog owner knew or should have known of the dogs’ dangerous propensities, and still allowed the dog to attack the person.

Q:  Who pays in a dog bite injury case?

A:  Dog bite cases and dog attack cases, in general, are the responsibility of the homeowners’ insurance carrier of the dog owner. If the dog owner has homeowners or renters insurance, that the insurance carrier will cover the claim in almost all situations. It is important to get this information as early as possible so a claim can be set up with the proper insurance company and a fair settlement reached. 

Q: Can you determine how much my claim is worth?

A: As attorneys, we are not permitted to promise any specific settlement amounts. However, the value of a claim is typically determined by the severity of the injuries, the type of medical treatment required, the permanency of the injuries, how much future medical care will be needed, lost wages, and other important details of your particular case.

Q: How can I get my social security benefits increased?

A: SSI benefits cap out and are the same for everyone, no matter what their income may be. SSDI benefits depend on how much you paid during your working or career years.

Q: Is any injury I receive at work covered by workers compensation?

A: Courts have determined that there is a certain amount of “horseplay” to be expected while on the job, but this has its limits.  If you are injured because of “intentional or willful misconduct,” you are not entitled to receive compensation.

Q: If I am injured at work, can I sue my employer?

A: If you were injured while within the scope and course of your employment, then you can file a worker’s compensation claim for your injuries. Under the worker’s compensation law in Michigan, your employer’s insurance carrier is responsible for paying medical expenses related to the accident as well as a certain amount of lost wages. However, you cannot sue your employer for pain and suffering. Instead, you can only sue the worker’s compensation insurance company for failing to pay outstanding benefits.

Q: Should I file a lawsuit?

A: It may be necessary to file a lawsuit to obtain an adequate recovery. This is a legal decision that should be made by your attorney with your input. Before filing suit in your case, we will obtain your permission and explain to you why we believe a lawsuit should be filed. Although a lawsuit may have to be filed, settlement is always possible. Negotiations continue even after a lawsuit has been filed and only a small percentage of lawsuits actually go to trial.

Q: What are Pleadings?

A: Pleadings are the documents parties file in court that form the basis of a lawsuit. The following is intended to be general information only. Each case is unique.

  • Complaint: A lawsuit is filed against an opposing party by filing a document in court known as a complaint. The person who brings the action is the plaintiff. The person against whom the action is brought is the defendant. The complaint is a statement of facts alleging the names of the parties and alleging why the conduct of the defendant entitles the plaintiff to recover damages.
  • Summons: At the time the plaintiff’s complaint is filed, a summons is issued and served on the defendant by an officer of the Court, usually a Deputy Sheriff or process server, informing the defendant that suit has been filed and that a response must be made within a given period of time or a judgment will be taken against him.
  • Answer: The response filed by the defendant is called an Answer, which is prepared by the attorney for the defendant. Alternatively, if a defense attorney feels there is a fatal flaw with the lawsuit, a motion to dismiss the complaint or to strike portions of the complaint may be filed.
  • Affirmative Defense: These are defenses used by the defendant and must be listed in a party’s responsive pleading. Under a separate and distinct heading, a party must state the facts constituting the affirmative defense. Examples include comparative negligence, assumption of risk, fraud, duress, estoppel and statute of limitations.

Q: What is Discovery?

A: Once a lawsuit is filed, both sides have a right to discover facts concerning the opposing party’s case. Normal discovery proceedings include written interrogatories (questions), depositions, production of records, and sometimes medical examinations.

  • Interrogatories: Each side may serve written questions on the opposing party, called interrogatories. You are required to answer these questions within a prescribed period of time, in writing and under oath. We will serve interrogatories on the defendant on your behalf, and the defendant will serve interrogatories on you, which you must answer. Our staff will assist you in preparing your answers.
  • Depositions: A deposition is an oral and transcribed statement, under oath, which may be used by either side in a lawsuit. It has the same effect as testifying at trial. It is used to learn as much as possible about the other side’s claims or defenses. Those present are the parties concerned, their lawyers, sometimes an additional witness or two, and a court reporter that records the questions and answers.

The lawyers normally agree in advance where the deposition will be held. It is usually in the office of one of the lawyers. You are required by law to give a deposition. This is not something in which we have a choice. Because of this, we will need your full cooperation. Prior to the deposition, your lawyer will go over the facts of the case with you and answer any questions you might have.

Q: What is Case Evaluation?

A: Case Evaluation is a hearing where your case is heard before a group of three attorneys who determine the value of your damages and assess a monetary amount. The amount awarded is non-binding, meaning if one side rejects the award, the case moves on to trial. However, if both sides accept the amount awarded, the case settles for that amount.

Q: What is Facilitation in a personal injury case?

A:  Facilitation, also known as mediation to some people, is a process the parties submit to help resolve the personal injury case. Typically done after discovery has ended, and usually after case evaluation, facilitation is managed by a facilitator hired by the parties. Most facilitators are former attorneys who specialize in case resolution. Typically, the parties are in each room while the facilitator works with each party to arrive at a resolution to the lawsuit over a period of time, often a few hours or even longer. While facilitation is usually done in person, more often than ever facilitation is done through Zoom, the computer or sometimes by telephone.

Q: What is the value of my case?

A: It is impossible for us to tell immediately how much money, if any, you will recover in connection with your case. There is no formula and each case is unique and different. In cases of serious injury, the ultimate recovery is often related to the amount of insurance coverage available, as well as the nature, extent, and duration of your injuries, along with an assessment of liability. As your attorneys, we feel it is our primary duty to obtain an amount of money, which will fairly and justly compensate you for your injuries. We will make every effort to do this by locating all sources of money. We will advise you of our evaluation in this regard. In general, there is a recovery of money for the following elements of damage:

  • The nature and extent of injury, including whether the injury is permanent, and the amount of disability.
  • Physical pain and suffering.
  • Scarring or disfigurement.
  • Mental anguish, embarrassment and humiliation.
  • Medical expenses, both past and reasonably certain to be incurred in the future. This includes future surgeries and rehabilitation.
  • Wage loss, past and future and loss of capacity.
  • Loss of consortium for your spouse, past and future.

Q: What are the first steps in working with my attorney?

A: When you are first interviewed, general information regarding your case is obtained. Materials relating to things you should or should not do will be furnished to you. You will be requested to sign certain authorization forms, which will allow us to obtain your medical records and other necessary information. We will notify the person who was responsible for your injury and/or their insurance company that you have retained us as your attorneys. Requests will be sent to all of the doctors and hospitals involved in your care for your medical records and billing information.

Q: Who should I talk to about my case?

A: Do not talk about your case with anyone except this office and your doctors. If your own insurance company wants to talk about your case before they pay your medical bills, please refer them to us.

Q: What paperwork should I sign after my accident

A: We will obtain any necessary information from employers, schools, or other persons. You should not sign anything until you check with us first.

Q: What things should I avoid doing when I am involved in a lawsuit?

A: Make sure to avoid the following:

  • Do not give any statements, written, recorded, or oral, to anyone concerning your accident or injuries without first getting our approval.
  • Do not make any incorrect statement to any doctor who may treat or examine you respecting any prior injuries or accidents. If you don’t remember, say so.
  • Do not make any incorrect statements to any doctor about your current medical condition.

Q: What are some things to do when I am involved in lawsuit?

A: There are certain things that are very important during your lawsuit. Here is a list of some of those things:

  • Inform your attorney immediately of any change of address and/or telephone numbers or employment.
  • If your vehicle was damaged, try to obtain pictures before you get it repaired. Take clear photographs and text or email them to use. If you have photos of the vehicles involved, provide those photos too.  Make sure you save the photos on your computer.
  • Save all medicine containers, casts, braces, and any other items from your doctors.
  • If you have the name of any witnesses to the accident, or even witnesses who can testify to your injuries, provide that information to us as soon as possible.
  • Give us any pictures and videos of the accident or accident scene that you or anyone else has taken for you.
  • Tell us of any changes in your job or job duties and responsibilities.
  • Be sure to obtain and save all receipts itemizing any and all expenses you incurred as a result of your accident. Receipts must be dated and contain legible and complete vendor identification.
  • Inform us of anything you think has a bearing on the case, including extensive medical treatment or hospitalization.

Q: What are the big mistakes I can make during the course of the lawsuit?

A: Some of the bigger mistakes made include the following:

  • Not seeing the doctor regularly if you are in pain.
  • Failing to tell your doctor about medical problems due to the accident.
  • Not doing what your doctor tells you and not keeping your doctor appointments.
  • Making incorrect statements about how the accident occurred.
  • Discussing your case with anyone other than your attorney or your doctor.

Q: Why is it so important to follow my doctor’s advice?

A: Be sure to follow the instructions your doctor gives you. There is never a reason or excuse to miss a doctor’s appointment. By missing a doctor’s appointment, you are saying to the doctor and to the insurance company that you don’t care about your injuries and that it doesn’t matter that much. Our job is to make a recovery for you for the pain and suffering that can be proven. Not going to the doctor is a good way to prove that you are not hurting and that you aren’t concerned with any injuries you may have. It is very important for you to work hard to get well and to go to all of your appointments.

If you are in pain and you do not see a doctor, the insurance company and the jury will not believe that you are having pain. Each time you go to the doctor and report that you are still having pain, your doctor makes an entry in his or her chart. It is important for your doctor to have up-to-date information on your condition. Some clients get discouraged while undergoing treatment and do not continue seeing their doctor even though they are having pain. This may harm your claim. It is important that your doctor knows how you are feeling.

Q: Should I pay any medical bills I receive?

A: Following a car accident, while your case is pending against the insurance company of the person that caused your injury, we try to arrange to have your medical bills paid by your own insurance company. Payment of medical bills may come from your automobile insurance carrier, another person’s automobile insurance carrier, worker’s compensation or your own health insurance policy.

In premises liability cases – like a slip-and-fall – the defendant may have a medical payment provision found in their insurance policy that mandates payment of your medical bills up to a certain amount, regardless of liability. Please be sure that all medical bills that relate to your injury are sent to our office so that we may forward them to the appropriate insurance company.

Q: What records should I keep?

A: Please be sure to keep the following records for your claim:

  • Lost work time and lost wages.
  • Photographs of your injuries and the accident scene.
  • Expenses resulting from your injuries, including home care, prescription costs and transportation costs.
  • Medical bills.
  • Running list of physical limitations you are experiencing and activities you can no longer participate in but could before the accident.

It is important to make your entries on an ongoing basis. A summary at the end of each month will not be as helpful to us. Copies of checks and receipts of payment, as well as the above records, will be very helpful when you may be asked by the insurance company or an attorney to recall your pain, physical disabilities, and out-of-pocket expenses such as medication and medical co-pays.

Q: What if I am injured in a car accident but don’t have medical insurance? 

A: Some of our clients are involved in an accident and do have health insurance coverage. When this happens, the Michigan no-fault insurance carrier responsible for pay the claim – such as State Farm or Allstate – must step up and pay medical expenses related to the car or truck accident. Under changes to the Michigan automobile law, sometimes the at-driver or owner of the at-fault vehicle will be responsible for paying medical expenses related to your injuries from the crash. It is important to contact our office so we can help figure out which insurance company is responsible for paying your medical bills, even if you don’t have health insurance. 

Q: What should I do if I am being watched and photographed?

A: When an injured person files a claim, insurance companies routinely conduct a detailed investigation of the injured person’s background. It is not uncommon for an insurance company investigator to park his surveillance car near your house and videotape your activities. These investigators work very hard to obtain videotapes of claimants lifting heavy groceries or engaging in strenuous physical activity. However, these same surveillance tapes have been useful to corroborate our client’s physical limitations, including the use of canes, crutches and other assistance devices. If you believe you are being watched, please contact our office.

Q: Should I consider bankruptcy?

A: If you are considering filing bankruptcy, you should know that you might lose all rights to your personal injury case. The bankruptcy court can take over your case, settle your case and give your settlement money to your creditors, and you will receive nothing. Be sure to talk to your personal injury lawyer before filing bankruptcy.

Q: What if the person I am suing is an uninsured/under-insured driver?

A: If you were hit by an uninsured motorist or under-insured motorist, you may be eligible for benefits under your own policy or the policy that covered the vehicle you were in when the accident happened. Many insurance companies have special provisions if you desire to proceed against the uninsured motorist provision of the policy. In most cases, you will be able to collect pain and suffering damages against your own insurance company in the same way as if the driver that hit you did have insurance. We ask that you provide us with a complete copy of your own insurance policy in force at the time of the accident to determine what insurance is available.

Q: Can I sue the government or a governmental entity?

A: Any injury claim, whether it stems from a car collision or other event that involves the government is subject to special rules. The governmental entity involved may be a city, county, or local government, or a road commission. Generally, in Michigan a governmental entity or government employee is immune from civil liability except in very specific situations. In addition, proper notice must be provided to the appropriate governmental agency. This notice must often be provided within a certain time after the accident. If proper notice is not provided in time, you may forever lose your ability to go forward with a claim. The law regarding governmental entities and their employees is very detailed and full of fatal traps for the injury victim. If you believe that a governmental entity may be involved in your case, please notify us immediately.