Answers to Medical Malpractice, Workers Comp, Long Term Disability Insurance, and Car Accident Questions
Get The Help You Need Now
Contact us directly 202-393-3320
At Donahoe Kearney, we believe it's important to empower through education. 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.
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.
- Page 4
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.
Why Does R.B. Ginsberg Call Long Term Disability Insurance Law Unjust?
Long Term Disability Policy Law is Unfair and You May Not Find Out Until Your Claim is Denied
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 Claimants?
This is 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.
Contact Our Experienced Long Term Disability Lawyers Today
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.
Is My Voc Program Counselor Trusthworthy?
How Will You Know if Your Vocational Rehabilitation Counselor is Working for You
Some vocational counselors hired by workers compensation insurance companies are just plain dishonest (and there are qualified, ethical counselors as well) who will do anything for their client - and their client is always the insurance company, never you.
Sometimes its not enough that their report casts everything you do in a negative light - while leaving out all of the times the vocational counselor canceled meetings at the last minute, showed up late, or didn't have any job leads available. But some will just straight out make stuff up - saying you told them you wouldn't apply for a job when you just asked a question about job requirements, even little things like saying you agreed to meet at a certain time or place. They want to show a pattern of someone who is not trying to find suitable light duty work after an injury so the insurance company can stop your benefits.
How Do You Know and What Can You Do About It?
Your success in vocational rehab means getting as much of your correspondence with your voc counselor in writing as you can. Use email whenever possible to confirm what was said. Get copies of all of the reports and emails or other documentation the counselor sends to the adjuster (you are entitled to this). Keep your own records of everything - job applications, job descriptions, job leads, etc. - make a copy of everything.
Remember, their goal isn't really to get you back to work - it's to get you off of workers comp. That's a big difference and they accomplish that goal if they can show you weren't cooperating with them - at least to stop or suspend your benefits.
Unfortunately, a lot of the time you don't find out until its too late. Take these steps from the get go to protect yourself.
Need more information? Order one of our free consumer guides today to get a leg up on the insurance company if you are on a workers' compensation claim
How do I know the truth about ERISA long term disability claims in DC?
You would think that insurance would pay when you need it - that your long term disability insurance from your employer would be there for you if you were sick or seriously injured and couldn't work. That doesn't usually happen in ERISA long term disability cases, and here's why:
- Insurance companies exist to make money for their shareholders. They are private companies with a duty to those shareholders, not to you. They are not moved by your illness or financial hardship, so just writing a letter or asking for something you think is fair and reasonable won't get your benefits paid.
- Insurance company forms are not to help you win your appeal or get your benefits reinstated, instead many times they are asking for information they later use to deny or terminate disability benefits. So be careful how you fill out those forms.
- Even though most long term disability policies say you have to apply for social security disability, the insurance company can ignore the social security decision that says you are disabled.
- When they ask you for a list of activities, things you can and can't do, how you spend your typical days and send you a form to write all of that out, they often do that because they have had you under surveillance, secretly videotaping you and that form is then compared to the video
- When you write a detailed, lengthy statement yourself, the disability insurance company can use that as evidence you can work, especially if you had a desk job before your injury or illness.
- Very few lawyers have the training or experience to handle ERISA disability cases. Insurance companies take advantage of "pro se" (do it yourself) claimants and lawyers who don't understand this practice area.
- Put all of your evidence into your appeal - you only get one shot at this, because you will not get a trial under ERISA.
- It's not enough for your doctor to indicate just that you are disabled for you to get benefits - the doctor needs to know how that is defined by your policy, and back it up with support and medical evidence. Working with your doctors to get this right is critical.
- The appeal process after your claim is denied is biased in favor of the disability insurance company - you have to know this, understand it and deal with it in your appeal.
- Many federal judges have written that you are not on a level playing field with the insurance company in ERISA disability cases.
- Your employer really can't help (and they usually don't understand the policy either, or why the insurance company won't just pay you (because they know you have a legitimate injury or illness and can't work). But it's really up to the insurance company.
If your ERISA long term disability insurance claim has been denied, you only have 180 days to gather the evidence, medical opinions, records, statements, draft and file your appeal, and most policies only allow one appeal. Don't go it alone - your income is at stake. The insurance company has lawyers working for them around the clock, so don't try to handle this, as your first case ever, on your own. Call us at 202-393-3320 and you'll speak with someone who can get you started getting the information and help you need to make the best decision for you and your family.
If I'm in an accident that was the other driver's fault, should I use my health insurance to pay for the medical treatment and bills I have from the accident?
If you are injured in a car accident in Maryland, Virginia or D.C. you can use your health insurance to pay for medical treatment from the accident. Its really a question of whether your health insurance company has a lien or right to be paid back from a settlement with the other driver's insurance company.
In D.C. and Maryland, most health plans require repayment of what they have paid for medical treatment if someone gets a settlement or verdict from the other driver's insurance company.
In Virginia, most health plans cannot recover their payments from a settlement (this is also called subrogation) because of Virginia's anti-subrogation statute.
Typically, most health insurance plans pay less than the actual charges, so it is usually better for someone injured in an automobile accident to use their health insurance rather than agree with the doctor or hospital to pay the medical bills out of any settlement because the health care providers will be entitled to the full amount from the settlement and if the case doesn't settle, is lost or not pursued, you are still on the hook for the medical bills.
The analysis also depends on whether you were injured in an accident in D.C. Maryland and Virginia, where you live, where you work (if that's where you get your health insurance), other car insurance you may have, etc.
If you have questions about what to do after a D.C., Maryland or Virginia accident, just call us at (202) 393-3320 and we'll talk it through.
As the parent of a disabled child, do you feel overwhelmed?
If you're caring for a child with special needs, developmental or physical disabilities, you know that there is a lot of information to go through about resources, benefits, activities, education, treatment - you name it. Many of the parents we have helped have told us how stressful and draining this can be.
So we developed a guide based on our experience and research, to at least get you started. A list of resources in the Washington, D.C. area designed to help you find the right activities, enrichment and opportunities for your child.
As you know, one size does not fit all when it comes to kids. But this is a starting point - to get people thinking and talking about what is available to help their child with disabilities and their family.
Getting Everything Your Special Needs Child Deserves: A Parent's Guide to Resources is a free gift to parents. You can order it through our website or by calling (202) 393 - 3320. But don't wait. If you know a family or child who can use resources, get it to them today.