Answers to Medical Malpractice, Workers Comp, Long Term Disability Insurance, and Car Accident Questions
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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.
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I Hurt My Shoulder at Work and My Doctor Thinks It's a Torn Rotator Cuff. What Do I Do?
3 Ways to Avoid Messing Up Your Case After Rotator Cuff Tear
A torn rotator cuff (tears of the the tendons in one or more of the major muscles of the shoulder) is a painful, often disabling injury. Many times it requires surgery, especially if an MRI confirms a tear and physical therapy or injections haven't helped. If you are a heavy duty worker, you might be dealing with a permanent injury that will keep you from going back to work.
How do you protect yourself if this serious injury happens at work?
There are three essential things that you need to do when you're hurt at work in order to protect your legal case, your income, and your livelihood. First, tell your employer it happened on the job. We call this giving notice, and it should be done as soon as possible after the injury.
Second, be wary of doctors referred by the insurance company. The insurance company will be watching their bottom line, not advocating for your care. If the insurance company referred you a doctor ask yourself: is he going to order expensive tests, like an MRI, that the insurance company will have to pay for? Is he going to believe you when you say how much it hurts? Is he thorough and does he seem objective? You should not let the insurance companies' doctor manage your treatment.
Next, get to a specialist. This is not an injury that can be managed or treated by a family physician and maybe not even by a general orthopedic surgeon. Make sure you choose the best doctor to be your long term provider to deal with this injury. You could be looking at months or even years of rehabilitation and/or rotator cuff repair surgery, so you want to make sure you choose the best physician from the outset. If you don't, it can be very difficult to get the physician approved later on.
Finally, file your workers' compensation claim in the right jurisdiction.
If You Have a Serious Injury That Requires Surgery, You May Need Ongoing Legal Help to Protect Yourself and Your Family
These are the things you should do, but remember, there is a lot more to it. Making a mistake can cost you a lot of money in lost wages and a lot of time and treatment when it comes to your injury. In most cases, you should not go it alone. You may need an advocate to fight for your rights.
Before you make any serious and difficult decisions, read the free book offered by our offices and written just for workers hurt on the job in the D.C. area: Protect Your Rights: The Ultimate Guide to D.C. Workers Compensation. It's free to injured workers and their families in D.C., Maryland and Virginia. So order your free copy today - call us at 202-393-3320. And if you need help now, contact our experienced staff at 202-393-3320 and we will help you take the next right steps today.
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?
What is Work Hardening and How Do I Know If I Need It After a Serious Injury at Work
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.
Contact Us If You're Looking For a Place to Do Work Hardening
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.
Should I Use My Health Insurance To Pay Medical Bills ?
You Have To Use Your Personal Insurance To Get Medical Treatment After An 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.
What is substandard medical care?
Substandard Medical Care is another term for medical malpractice - and that can include hospital or office systems that fail, a doctor not following up on test results or ordering a consultation with a specialist, not working up a potential diagnosis, giving the wrong medication or wrong dosage - almost any medical problem that is preventable.
Some people call this medical negligence, or a violation of the standard of care or standards of practice - and these terms usually refer to the same thing - a situation where a doctor, nurse or hospital doesn't follow established safety rules for their patient.
Sometimes, there is no harm from this, like when another doctor or nurse catches a mistake and re-writes an order, so the patient never gets the wrong medication. But patients can be seriously injured or killed due to mistakes that can be avoided.
Want to learn more? Take a few minutes to order one of our free, no obligation guides - they are full of common examples of medical mistakes that we see over and over again. Or just call our office and we'll send it to you.
At the point where you're looking for a D.C. medical malpractice lawyer because you suspect a medical mistake?
Download our FREE Medical Malpractice Lawyer Evaluation Form. Make sure anyone you hire for such an important case can past the test. And remember, hospitals, doctors' insurance companies know the lawyers who specialize in medical malpractice and those who don't.