Answers to Medical Malpractice, Workers Comp, Long Term Disability Insurance, and Car Accident Questions
Here are some of the questions people have when they first contact us about D.C., Maryland and Virginia medical malpractice, serious car accidents, long term disability insurance claims, or workers compensation.
We try to provide as much information as we can based on our experience as medical malpractice lawyers in D.C., Maryland and Virginia and based on representing many hundreds of people who have been injured in accidents or at work in D.C., Maryland and Virginia.
Here are the basics:
Patients permanently injured by medical malpractice, or the families of patients killed because of medical negligence, when a hospital, HMO or healthcare corporation doesn't follow basic patient safety rules deserve justice - resources to help with the harms and losses due to the injuries or death of their loved one.
Drivers who don't follow the rules of the road, driving recklessly, driving drunk, speeding, and texting should be accountable for the harm they cause when their actions cause a serious car accident or car wreck.
Workers hurt on the job deserve workers compensation benefits for lost wages, medical treatment and permanent injuries. If a worker is killed on the job, his family deserves workers compensation death benefits - to at least help with the financial loss of a loved one.
If you're on a long term disability insurance claim and your claim has been denied, you probably need an attorney to do the appeal. Insurance companies will use every trick in their aresenal to deny or limit your benefits. Don't try to handle an appeal on your own.
Since every person is unique, if you have questions or need information about an injury or death in your family, please contact us to talk it through. We'll talk to you, schedule a free initial meeting and give you all the information we can.
Call us today at 202-393-3320.
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What if your company does not have light duty and cannot create light duty work?
The answer is simple. They have to pay your full workers compensation benefits, also called temporary total disability, or TTD. It's just as if your doctor said you could not do any work because of the injury. Unless and until they provide light duty work, you should be on full workers compensation benefits. If your employer does happen to have light duty, but the normal pay rate for the position you're doing on light duty is less than what you make on full duty, then the workers compensation insurance company still need to make up 2/3 of the difference. The point is that while you are unable to do your regular job, you should still be making 2/3 of your salary/hourly rate (tax free) for as long as you can't do your regular job.
At some point, you may be asked to start vocational rehabilitation or work hardening, or both. But that doesn't usually happen until you are down the line long enough to gauge whether or not you have a permanent injury e.g. whether or not you'll be able to go back to work regular duty.
There are lots of questions that come up in the workers compensation process - don't try to go it alone. Give us a call - we are happy to help you and give you lots of free materials that will equip you for the road ahead.
Give us a call today at 202-393-3320 and order one of our free consumer guides today.
Why Do I Need An Experienced ERISA Attorney for my Denied Claim?
If your insurance policy comes through your employer, and your claim has been denied, your case falls under the federal ERISA code (The Employee Retirement Income Security Act of 1974). Ironically, this act was passed to protect the cash in your pension fund, but over time it has been used to protect insurance companies more than employees. And for some reason it covers employer-sponsored disability insurance plans in addition to dealing with pensions.
Ninety-nine percent of all disability insurance plans offered to employees are governed by ERISA. Under ERISA, you have the right to file suit in federal court if your claim for benefits is denied.
But, unlike almost any other legal proceeding, one side goes into court with all of the “good cards.” That side is the insurance company.
The most important card held by the insurance companies is something called a “reservation of discretion.” The reservation of discretion is something that the courts have given to the insurance companies – free! Here is what this “special card” means:
If your claim for benefits is denied, you will lose your lawsuit against the insurance company, even if you are right and it is wrong, if there is any evidence that supports the insurance company’s decision.
In any other legal proceeding, you can win if you have more than 50 percent of the evidence in your favor. Under ERISA, however, the claimant can have 85 percent of the evidence, and the insurance company can have 15 percent of the evidence, and if the insurance policy contains a “reservation of discretion,” they win!
If your claim has been denied, you'll need an experienced attorney to review your denial letter. We will review your denial letter for free. Contact my legal team at 202-393-3320 to take advantage of this incredible offer.
How Do I Know If a Work Hardening Program is the Next Right Step for My Case?
Work hardening is a little like physical therapy. The idea is to simulate work activity to see if you can do it and transition back to work.
That sounds great but in practice, some work hardening facilities don't know your real job duties (they just get a job classification from a generic list), and some think they are assessing psychological factors like "pain or illness behavior" or "symptom magnification".
These are insurance buzz words for "you are faking or malingering" - and the people making these "findings" are only physical therapists - they can help you stretch, use proper body mechanics and give tips on overcoming soreness but they're not doctors.
The key is to always be on guard - these facilities get almost all of their patients from workers comp insurance companies and sometimes "evidence" that someone is somehow not giving full effort (according to a physical therapist) is more valuable to them than getting you back to work.
We do have a fantastic physical and occupational therapy group that we work with that gets referrals from attorneys, insurance companies, family members - everywhere! So you don't have worry that they are biased, or that they won't do a great job with you. Give us a call today and we would be happy to share that information with you. 202-393-3320.
Can you get workers comp in DC if you were exposed to coronavirus at work?
Healthcare workers who are coming into contact with Coronavirus at work should definitely get the best information they can on workers compensation. If you caught the Coronavirus as a result of being exposed while on duty, you could be off of work, need medical care and you will need to file for benefits.
If you're like most healthcare workers, you never planned for an injury or illness caused by helping patients. We see this a lot, a nurse or other healthcare worker, who injures her back lifting and turning a patient, a torn rotator cuff from restraining a patient suffering from addiction, a concussion caused by a violent psychiatric patient.
And now, Covid-19.
Don't wait too long to get started on your claim. Contact us at 202-393-3320.
If you have had exposure at work, you still need to prove that the illness was caused by work, but for healthcare workers, there should be enough of a link for you to go ahead and file for workers compensation. And obviously, if you've been exposed at work get tested now so you can take care of yourself and your family if you are sick, quarantined, or both.
If you call us today we will send you what you need from our DC Workers' Compensation Library - You will get our signature book, along with the DC forms you need to file your claim (we can email these to you - the book is a real book so has to be mailed).
You can use these forms to file with the DC Office of Workers Compensation to get your claim started, but don't do it without speaking to us first. There are certain mistakes that you can make when filing for workers' compensation that we want to help you avoid.
We are available to take calls and answer questions about work injuries in DC, MD and Virginia, so if you need anything, please reach out to us - we're here for you.
How does workers compensation affect social security disability benefits?
With a serious work injury that prevents you from working for more than 1 year, you may be eligible for both workers compensation benefits and social security disability. Workers who have a permanent injury that will prevent them from working for many years are often awarded social security disability as well.
In order to receive workers compensation benefits, you have to prove your work injury prevents you from working. Social security looks at the whole person - all of the person's medical conditions or injuries.
There is an offset, however. That means that social security benefits will be reduced to take into account the workers compensation benefits you are getting after an on the job injury. Currently, the Social Security Administration uses a formula to determine the offset, or reduction, in the amount they pay. Click on this Fact Sheet for the specifics.
It's important to know that the workers comp benefits are not reduced. Also, once the workers compensation case settles, you have the ability to reduce the amount of the social security offset, so your social security benefits should go up.
Also, a lot of our clients tell us they applied for social security, got denied and had to appeal. It seems most people are awarded social security after an appeal and hearing.
If you're trying to figure this out - its complicated - call us and see if we can answer your questions. We handle every kind of workers compensation issue for private sector workers (people who don't work for the federal or D.C. government).
Contact us today at 202-393-3320
What is the difference between medical malpractice and negligence?
Malpractice vs. Negligence
Someone called me yesterday about a wrongful death case in D.C. after a relative died from what sounded like inadequate medical care by an HMO here in the District.
I explained some of the elements of a medical malpractice case in D.C. - the standard of care, proving the malpractice caused the person's injury or conditions, the damages allowed in wrongful death cases, etc.
After we finished, she asked a great question - what's the difference between negligence and medical malpractice?
Usually there is no difference. Medical malpractice lawyers tend to use the terms interchangeably - I know I do.
Medical malpractice is negligence by a doctor, nurse, hospital, HMO (any healthcare provider providing medical care to a patient) where they fail to do what a reasonable and prudent doctor, nurse, etc. would do in the same situation. The harm is to a patient. Many times this is also called medical negligence.
Negligence is anyone failing to do what a reasonable person would do in the same situation - it can be a driver, store owner, landlord, anyone who does something (not intentionally) that hurts someone else, usually because they weren't being careful.
So if an anesthesiologist doesn't monitor a patient during surgery and she is injured due to lack of oxygen, that is medical malpractice. If the same anesthesiologist runs over someone in the hospital parking lot, that's negligence.
Order a free copy of one of our books, consumer guides and/or reports for more information on this and a number of other topics.
I’m on workers’ comp: can the insurance company just stop my benefits?
Unfortunately, yes. In Washington DC, the insurance adjuster can (and often does) stop your benefits for no reason.
In D.C. workers compensation, insurance companies can stop your benefits for any reason - or no reason at all. All they have to do is file a notice of controversion, a simple forming stating a reason.
What are some of the reasons for an insurance company to stop your benefits?
They can have you examined by one of their doctors (an IME - insurance medical exam), say they are still investigating the claim, or that they don't have evidence of any current disability, or you didn't "cooperate" with a vocational counselor. They could also claim you're not cooperating by giving them all of the medical records they ask for (basically they want all the records from the day you were born). They can even make up a reason.
Then its up to you to win your case and get the benefits reinstated - but that could take many, many months by the time you go to a hearing and an Administrative Law Judge issues a decision.
That's why we take steps so our clients don't benefits cut off in the first place and act immediately when they do. We cover a lot of this in the book Protect Your Rights: The Ultimate Guide to D.C. Workers Compensation or you can call us at (202) 393 - 3320 and speak to a live person who will help you and can tell you what we do in this situation.
How do I find a lawyer for a patient who died because of hospital mistakes?
You'll need a lawyer with a lot of experience in medical malpractice cases, representing families who have lost a loved one because of hospital mistakes or errors. But there is a lot more than experience (and we have tons of it) to consider.
You may hear these tragic cases called wrongful death cases - and they are, but they are based on medical malpractice. And that is a much different, more specialized, and usually more difficult area of the law than a wrongful death case when someone dies in a car or truck accident.
In fact, the District of Columbia has two types of cases when someone is killed by medical mistakes or another person's negligence - wrongful death and survival actions. There are similar differences in death cases in Maryland and Virginia as well - and we know because we've represented families in D.C., Maryland and Virginia when HMOs, hospitals, doctors or nurses have caused a patient's death.
What else do you need to look for in a lawyer you are thinking about hiring for a serious case?
There are a number of factors but here are a few:
- Board Certification by the National Board of Trial Advocacy
- Resources - these cases are expensive to investigate and litigate. They require multiple expert witnesses in different specialties, so make sure your case can be reviewed by some of the best experts from around the country.
- Specific experience with the hospital or HMO that caused the death, for example
- Results - trials, verdicts, settlements
- Reviews - what former clients have to say about their experience
There is a lot of misinformation and slick advertising out there - so how can you make sure you don't wind up with the wrong lawyer for your case?
Download our free Medical Malpractice Lawyer Evaluation Guide and start calling some lawyers and see how they stack up, before you even meet with them. Want us to send more info that will help? Just call us at (202) 393 - 3320 and we'll send it to you, free of charge, with no obligation.
My child had a serious injury in the hospital. How much will a lawyer cost?
First, children's medical malpractice is a specialized area of law and you've come to the right place.
Medical malpractice cases against hospitals require the lawyers to investigate the cause of the injury, your child's medical condition, the medical records, review medical literature and studies and review the information with experts in different fields - doctors who specialize in pediatrics, pediatric neurology, hospitalists, neuro-radiologists, and other specialists depending on the child's condition.
Once we agree to investigate a medical malpractice case, we'll do that for free and share the results of the investigation with you. If our investigation tells us that we can prove a case and help your child, our fees are contingent - meaning you pay only if we win, there is no fee if the case is lost.
If you're thinking about talking to a lawyer about any serious medical mistake, order a copy of our Medical Malpractice Lawyer Evaluation - there are a lot of lawyers who advertise for these cases but don't be fooled by slick ads. This form is designed to help you find the right lawyer for your medical malpractice case, someone with the right experience, training and resources and its also FREE.
Just call us at (202) 393 - 3320 or order it through the website and you'll get it today.
What's Really in My Long Term Disability Insurance Policy?
Most people don't think about what's in their disability policy until they need to make a claim on it. Especially if you're young, you may be thinking "it's not going to happen to me."
Here's some startling reality: “According to the U.S. Census Bureau, you have a one in five chance of becoming disabled. A 1997 study released by the Census Bureau reveals that more than 152 million people between the ages of 21 and 64 — the prime working ages for most Americans — have some form of disability. According to the American Council of Life Insurers (ACLI), a person age 35 is six times more likely to become disabled than die before he or she reaches age 65.”
It stands to reason that if you become disabled, you will need to make a claim against your long term disability insurance policy. You should be entitled to those benefits if the premiums have been paid. However, it's not always that simple. Over the years, many people have questioned whether ERISA (the law that governs long term disability claims) cases are "fair" for the employees when they take on the insurance company.
Supreme Court Justice Ginsberg Calls ERISA “Unfair.”
Here's an interesting case to review: Two people had sued their HMOs for failing to use ordinary care in making coverage decisions. The lower court had allowed the case to proceed.
In Aetna Healthcare v. Davila, the Supreme Court struck down a Texas law that was designed to compensate people who had been injured by healthcare decisions made by their insurance companies.
The Supreme Court held that state consumer protection laws were completely overturned by the federal law of ERISA. This means that ERISA trumps state consumer protection laws that apply to other types of insurance coverage. Since, the Court said, the only remedy allowed under ERISA for a wrong overage decision is to force the insurance company to pay the benefit it should have paid anyway, a patient cannot sue the insurance company for a worsening of his condition, or for pain, suffering or death caused by the insurance company’s decision. And there is no incentive for insurance companies to deal fairly with their claimants.
Justice Ruth Bader Ginsburg, in a concurring opinion, said that she joined “the rising judicial chorus urging Congress and the Supreme Court to revisit what is an unjust and increasingly tangled ERISA regime.” The problem, she says, is that through its decisions, the Court has made it so that virtually all state law remedies which would provide just relief are preempted, but very few federal substitutes are provided. She pointed out that a “series of the Court’s decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain ... relief” and that the current situation needs to be remedied “quickly” because it is “untenable.”
What does this mean for long term disability insurance claimants? It’s just more bad news. This decision reaffirms that the insurance companies who make decisions for employer- sponsored long-term disability plans are immune from suit for anything other than the benefits they already owe and should have paid. Workers who have been wrongfully denied long- term disability benefits often suffer enormous emotional harm in their fight to have benefits reinstated, particularly if they are sick and without income replacement.
The HMO case, however, gives insurance companies the “green light” to keep denying benefits, knowing that, on their worst day, all they have to do is pay what they owed anyway.
We join with Justice Ginsburg in urging Congress to repair this damaged scheme and to restore ERISA to its originally designed purpose of protecting, not hurting, employees.
The next step in your case is to give us a call and see if you need an attorney. Don't let the insurance company bully you around with this. We've seen all of their tricks and are eager to reveal them to you: 202-393-3320.