Your rights after an auto accident

If you have been injured in a car accident, it is important to know what your rights are in terms of recovering financial compensation. Bedford-Concord personal injury attorney Peter G. DeGelleke can help walk you through the claims process and answer any questions you may have. To schedule a free initial consultation, complete an online contact form or call 781-275-0800.

What Are My Rights If I Am Injured In An Auto Accident?

This simple question does not have a simple answer, but some general information may be helpful.

  1. The law says that, if you are injured as the result of the negligence (carelessness) of some other person or company, you have a right to be compensated for your injuries, including medical costs, lost wages, and noneconomic damages such as inconvenience, pain and suffering, and loss of enjoyment of life.
  2. If you were 50% or more at fault in the accident, you cannot recover money from the other person (or his or her insurance company), although you may be entitled to have some or all of your medical bills and lost wages paid by your own insurance or a policy that covers the car you were driving. For instance, even if you caused an automobile accident, the Personal Injury Protection coverage on the vehicle is obligated to pay your medical bills and 75% of lost wages (up to $8,000), unless you were driving under the influence of drugs or alcohol [this assumes that a Massachusetts policy is in effect]. Even if you are injured as a pedestrian, or as a passenger in an uninsured car, you may still be covered if a family member of your household has an insured vehicle.
  3. In auto accident cases where the other driver is more than 50% at fault, you can collect for what are called noneconomic damages [such as pain and suffering] if your medical bills exceed $2,000, or if you sustain a fracture or serious disfigurement. While you should never seek unnecessary medical treatment [this would be insurance fraud, which is a serious criminal offense] if pain or other problems persist you should return to the doctor or hospital and pursue all appropriate medical and diagnostic options. When an insurance company evaluates a claim, they will not accept your word that you were in pain, unless that fact is documented by medical records. Remember that your Personal Injury Protection will pay up to $8,000 of medical bills ($2,000 if you have other medical insurance which covers your treatment). If you have medical insurance, after the auto insurer pays $2,000, the payment responsibility reverts to your medical insurer. If you collect a settlement, generally your medical insurance company has a legal right to be reimbursed for what it pays.
  4. You have the right to choose your own doctor and to select the type of medical service you receive (i.e. chiropractor, physical therapist, osteopath, etc.) as long as the treatment is "reasonable and necessary". An insurance company cannot require that you utilize any particular medical specialty or doctor but, once the insurer pays the first $2,000 of bills, you must use any medical insurance that you have, i.e. you cannot go "out of network" in an HMO and expect the auto insurance to pay. Of course, if your medical insurance does not cover the type of treatment you are getting (such as chiropractic), or places an arbitrary limit on the number of visits, the auto insurer should still be responsible for paying up to a total $8,000. In cases of long-term treatment, the auto insurer will often have you seen by a doctor of their choosing (called an "independent medical examination" or IME) to evaluate your need for further treatment. By the terms of the insurance policy, you are required to attend this examination.
  5. After an auto accident, you should contact your own auto insurance company promptly to report the accident and, if you were injured, to request a Personal Injury Protection (PIP) form, which must be completed and returned before they will pay any bills. If you plan to consult an attorney, do not give a recorded statement or fill out an insurance company accident report until you discuss this issue with your lawyer - just tell the insurer the date, time and place of the accident and say you will provide more details when you feel better. If you fill out your own PIP form before you talk to a lawyer, be certain to keep a copy of the form, which will contain your claim number and name of the adjuster; usually, your doctor can bill the insurance company directly as long as you provide this information. If you were a passenger in someone else's car, the form would come from this person's insurance company.
  6. If you are seriously injured in an accident where it is likely that you were less than 50% at fault, do not speak to any insurance company representative without first discussing your situation with a competent attorney who is experienced in the law of personal injury. This consultation will cost you nothing. Insurance companies will attempt to take statements (taped or written) with only one goal in mind -- to minimize the amount of money they eventually may have to pay you. In the case of a serious injury, do not fill out any forms or sign anything before you speak with the attorney.
  7. The lawyer will interview you, give you guidance as to your rights and advise you what (if any) dealings you should personally have with insurance companies. It is helpful if you can supply copies of accident reports (you should speak with the attorney before completing yours), medical reports, medical bills and names and addresses of witnesses.
  8. If the lawyer accepts your case, it will generally be on a contingent fee basis, which means that legal fees (based on a percentage of recovery, usually 1/3) are only collected if there is a successful settlement or verdict. Massachusetts Supreme Judicial Court requires that the fee agreement is in writing, and you should read it carefully before signing. The lawyer may agree to advance the out-of-pocket costs of bringing the case (filing fees, costs of depositions, obtaining medical records, etc.) but these costs are ultimately your responsibility, even if the case is lost.
  9. You should expect to be kept informed of the progress of your case and to have your phone calls to the attorney returned with reasonable promptness. You should understand, however, that little will be happening until you either finish medical treatment or your doctors can express an opinion as to the future effect of your injuries.
  10. You must keep your lawyer advised as to the status of your condition, and you should arrange to have your doctor(s) send copies of bills to the lawyer.
  11. Keep a diary of how your injury affects your daily life, including time in bed, lost sleep, activities you were forced to miss or cancel, time lost from work, time attending medical appointments, etc. In the event that the case cannot be settled short of trial, without a diary you will not remember these important specifics and it will be harder to convey all parts of your damage claim to the judge or jury. The diary is a very important tool that will increase the possibility of resolving the case without litigation.
  12. Once you have substantially recovered, or your doctor knows the extent of your future disability, the lawyer will begin negotiations with the insurance company. If a settlement offer is made, you should discuss it fully with your lawyer. You will need to weigh the possibility of a greater award in Court against the possibility of losing the case altogether, as well as evaluating your own willingness to be subjected to the inconvenience and delays of litigation. Once you settle the case by signing a release, you cannot come back and seek more money later, even if your medical condition gets worse. There are some cases that cannot be reasonably settled short of litigation, unfortunately.
  13. If you are dissatisfied with your lawyer, you have the absolute right to discharge him or her, receive your file and seek other representation. Before taking this drastic step, you should probably try talking over the problems to see if they can be worked out. A new lawyer will probably need to see a copy of your file before giving you an opinion on the case, but your present lawyer is ethically obligated to give you your file.
  14. If you are injured in the course of your employment, the rules and procedures are very different, and quite complicated. Generally, you should contact an attorney if the insurer refuses to pay, seeks to discontinue compensation payments, if you have scarring or permanent disability, or if there is any doubt of your physical ability to return to your old job. You should speak with the attorney before you go back to work.

Do Not Negotiate With Insurance Companies On Your Own. Contact a Lawyer.

If you have been hurt in an auto accident, it is important to protect your rights when it comes pursuing full and fair compensation. Complete an online contact form or call 781-275-0800 to schedule a free initial consultation with personal injury attorney Peter G. DeGelleke.