Expert: Doctor Settlement - 4/15/2009

Question
I fell at the mall and had some tendon injury. The companies insurance company sent me a medical release form asking for all my past medical history. They want a list of all my doctors. It looks very extensive and I don't know why this is relevant to my case. Do I have to sign this in order for then to pay for my injury? On the bottom it does say something about " I understand this is voluntary only".. Does that mean what it says?

Answer
Dear Deb Snodgrass,

Since you used your full name in the question, I am going to make your answer private.  You do not want anyone to have this Q&A pop up in a search for your name.

There are eight aspects I want to address with you.  Hence, this is going to take a lot of my time and I hope you do not get bored with the depth I am going to put in here.

1.   Just making a medical no-fault claim or one for pain and suffering also?
2.   Medical payments in no-fault premises accidents versus tort claims
3.   Medical release forms in both types of cases
4.   General overview of mall liability—this is in a tort claim
5.   Discussion of your liability and losing under some "red" state comparative negligence laws
6.   Recommendations to gather evidence
7.   Hiring an attorney?
8.   Discussions in writing

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#1. Just making a medical no-fault claim or one for pain and suffering also?
The answer to your question depends upon what kind of medical claim you are going to make: no-fault payment of medical bills only, or a full tort claim for all damages, including pain and suffering.

If you do not have real serious injuries and you do not have proof of negligence on the part of the mall, then you may just want to make a no-fault medical claim, ASSUMING the mall in fact does have such an insurance policy.  

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#2. Medical payments in no-fault premises accidents versus tort claims
These days, most modern commercial establishments do have a no-fault medical insurance coverage for anyone who is injured on their property.  You do not have to prove that the owner was at fault.  They will pay your medical bills up to the limits of the insurance, usually limited to no more than $3,000 to $5,000.

Nothing else gets paid, such as lost wages or pain and suffering.  In essence, you are NOT making a claim versus the mall; instead they are treating you as a guest and taking care of some small medical payments.  This is a GIFT to visitors, NOT done as any obligation.

By contrast, in a tort claim, you are proving fault (i.e. negligence) and if you are successful, then you will claim ALL of your medical bills, lost wages, pain and suffering, and so forth.  The tort claim carries with it the right to recover all damages you suffered as a consequence of the negligence of the mall.

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#3. Medical release forms in both types of cases
For the no-fault claim, I would NEVER give up any of my medical history.  What is the purpose?  All they are going to do is to pay your medical bills up to the policy limits.

For the tort claim they have the right to look into your medical records IF there is any kind of treatment for complaints of similar pain to areas that you are now claiming were injured.  Hence, you will have to do one of two things.  

Either give away your entire record, or just that part of your treating doctor's record that is relevant.  If you give away your entire record, then they can look through everything you have ever done with a doctor.

If you do the limited hang-out routine, you will send only the records as you are treated.  I would consider getting either your treating doctor and/or your general practitioner to write a note that she has reviewed your records and there were no similar complaints of pain.

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#4. General overview of mall liability—this is in a tort claim
First off, let's take a little cruise through the field of mall liability.  This is the first place to start since the mall does not owe you one thing unless you can prove that it was negligent.  That means you must show that it breached a duty of care by not curing the defective surface or cleaning up a mess or whatever danger caused you to fall or posting a warning about it.  

You might be surprised to learn that there is no automatic liability against a business; one has to show negligence on their part.  Premises Liability Slip Or Trip And Fall Accidents http://www.settlementcentral.com/page3006.htm  is an excellent review of premises liability or slip and fall accident confusion as to liability.  There are three good examples on that page to show you the difference between liable property owners and those whom one cannot sue.

We start with the most important issue: liability; we will first look at BOTH sides of the liability issue (yours and theirs).  That is going to be the real challenge in this claim.  You need to be able to cite some reason why the mall should be responsible for your damages; tell how they breached their duty of care to their guests; otherwise you will lose.

The mall IS NOT AN INSURER OF YOUR SAFETY.  You can recover ONLY if you can show that the mall was negligent, and even then, your award will be reduced TO THE EXTENT OF YOUR OWN NEGLIGENCE IN FAILING TO WATCH WHERE YOU WERE WALKING.  The mall will raise this defense in an effort to reduce your award.

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#5. Discussion of your liability and losing under some "red" state comparative negligence laws
Next, you will have to defend against a claim of comparative negligence that could bar your claim or diminish your award.  The mall would say that you should have watched where you were walking, and hence you were comparatively negligence.

Most "red" states (as opposed to the more progressive "blue" states) are a bit regressive when it comes to comparative negligence.  In some states, they will bar any claim whatsoever if the victim claimant is 50 percent or more at fault.  But if she is 49 percent or less at fault, the victim claimant can recover versus the tortfeasor, although her recovery is reduced by her degree of fault.

A goodly number of other states will allow the claim to go through even if the claimant's comparative negligence exceeds 50%.  But of course the award is reduced by the percentage of the claimant's negligence.

DO NOT BE DISCOURAGED about that defense, but just be aware that it will be raised if your claim has any value.  Without telling anyone about your visit, you should go into the store and spot the area where you fell and see if any of the conditions I set forth above exist.  Perhaps try to take some photos if the conditions are similar.   Show the eyelevel distractions of what would have caught your eye as you walked.  That could provide an excuse as to why you failed to see the danger.

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#6. Recommendations to gather evidence
If you can think of anything on the site that might aid your claim, by all means go and photograph it.  Take your cell phone or small camera and take some photos of the area.  GATHER ALL EVIDENCE NOW: DO IT QUICKLY AND QUIETLY, without notifying the mall just yet.  Leave that for later.
http://www.settlementcentral.com/page0216.htm  Evidence to Support Your Personal Injury Insurance Claim of Premises Liability, Slip and Fall.  

Gather other evidence, including and witness statements

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#7. Hiring an attorney?
Next is a discussion of going it alone versus hiring an attorney.  While we teach personal injury insurance claims at www.SettlementCentral.Com this is NOT one that I would recommend you try to settle on your own UNLESS THE DANGER WAS PRETTY MUCH THE RESULT OF NEGLIGENCE.  The main reason is the big liability question.  Besides the issue of whether they were liable to start with, they are going to try to attack you for not watching where you were walking.  So this is going to require a professional.

No, attorneys are not going to be jumping over themselves to get this case.  You are going to have to sell them on even talking to you, let alone taking on your case.  You may expect a higher fee than the auto accident one-third.  Why?  Premises liability claims are tough to prove, and one also has the deduction from the award for the percentage of the client's negligence.  UGH.  I once had a GREAT award, but it was reduced by 40% because of my client's negligence for failing to see the danger that injured her.  So don't be surprised if the fee is a bit higher than the usual one-third.

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#8. Discussions in writing
Learn how to communicate with the insurance adjuster: FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"

FINAL TOPIC, Mark: Effective communication with insurance claims adjusters.  Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm

How about avoiding those phone calls and try to always communicate with the adjuster in writing, showing your own analysis of value?  It is OK I guess to have one call or so, but no more.   Always have your information and ammunition in writing to give to the adjuster.

Let her know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.

Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.

I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.

Best Wishes,

Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com