Who Handles the Med Pay Coverage after an Auto Accident?

If don’t understand the question, first, let’s talk about what Med Pay is, really briefly: In North Carolina, you can buy extra coverage on your automobile insurance policy that’s called “Medical Payments” coverage, or “Med Pay” for short. It’s no-fault, very limited, coverage that will repay your for medical expenses incurred as the result of an automobile accident regardless of fault. It doesn’t raise your rates, so if you have it, use it! I’ve written tons of articles on that, so hearken back to those.

Once you understand what it is, and that it should be used, THIS question arises: Who handles it? Should you handle it? Should your attorney? Should you let some health care provider access it directly? The answer, as usual in the legal field, is, “it depends.”

Generally speaking, the safest play is to let your competent, experienced personal injury attorney obtain the med pay and hold onto it until it’s time to disburse ALL of the funds (liability settlement, too). That way, your attorney can tell what bills MUST be satisfied with those funds, and to what extent. You see, just because there’s a balance owed on the bill doesn’t mean that the settlement funds HAVE to be used to satisfy it. The providers have to have a validly perfected lien to have a right of recovery as to these funds. And even then, under certain circumstances, the providers might not have a right to have ALL of their bill paid, to your detriment. This is why it’s important to have your attorney handle this, because your attorney can determine who HAS to get paid AND HOW MUCH, to make sure your recovery is protected by your rights.

Of course, you can collect the Med Pay on your own if you want. Sometimes this is critical for a victim to use as a little account to fund co-pays which they otherwise couldn’t do. So if this is necessary, fine, but do be warned of the above issue; ignoring liens and paying that money to yourself or non-lien holders can have consequences you would be better to avoid. This is why having an attorney handle the Med Pay makes the most sense.

Sometimes health care providers want to access your Med Pay directly to pay their bill. First, if you have health insurance, my question would be why are you using that? Often times providers don’t want to use health insurance because, frankly, they get paid less when they do. But also, it can be a problem for you because you have a co-pay to pay EVERY time you go, which can add up quickly. Still, if you can use health insurance, you should, and that would get rid of this problem. If you don’t have it, or can’t use it for whatever reason, then having the provider access the Med Pay directly is a good way to make sure they are paid. Still, same problem as above, if you pay some lien holders or non-lien holders, and don’t pay lien holders, then you could find yourself in trouble.

It shouldn’t be this complicated. But it is. So until it’s simpler, call an attorney like me to get help ASAP. 919-929-2992.

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How can you help someone who’s been in an auto accident?

Maybe you know someone who’s been in an automobile accident, or fell at a store, or was bitten by a dog – whatever; there’s a chance that you do know someone who’s going through that RIGHT NOW.

What can you do to help them? Here’s the best advice you can give them:

TELL THEM TO CALL A LAWYER!

Why? I thought you’d never ask! This is what you should tell them:

First, the number one thing I worry about for people who have accident claims is not that they’re going to call another lawyer, but that they’re not going to seek counsel at all. Where claims begin to fall apart is right at the beginning, so the earlier you seek help, the less damage you’ll accidentally do to your claim.

Second…yep, you’re hurting your claim. Chances are you’re talking to the insurance company’s adjuster and in so doing you’re giving them information that can and will be used against you in the valuation of your claim! Adjusters are trained to ask questions in such a way as to elicit responses that will harm your claim. If you’re talking, you’re losing, so watch it!

Third, this isn’t your job! What I mean by that is that you probably just don’t know what you’re supposed to do and more importantly what you’re NOT supposed to do to make your claim work out as best it can. Whatever your job is, were you fantastic at it the first hour you attempted it? Probably not. You probably made lots of mistakes that someone else had to fix. The problem with this is that you don’t get take-backsies in this situation! There are no do-overs! No Mulligans! When you screw up your claim, your claim is screwed.

Finally, you have more important things to do. Why would you worry about learning how to do my job when you should be focused on getting better? It’s just silly. Hire a professional to do a professional job.

It seems so obvious now, right? If you’re hurt, call a lawyer. Period. Acting to help shore up your claim early can make a huge difference in your outcome, so the best thing you can do is call a lawyer asap if you’re hurt in an accident and are worried about your claim. I would prefer it if you would call me. So do that! 919-929-2992.

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Auto Accident Injury Care: Chiropractic or Physical Therapy?

People often think that part of the job of a personal injury attorney is to dictate treatment. That is, definitively, not what we should be doing. Yes, to practice law in NC you have to have a doctorate, but I tell people all the time I ain’t that kind of doctor. I have no business telling you what treatment you need!

What IS my business though is telling you how your treatment decisions might affect your claim value. So let’s talk about why people might choose one type of care over another.

First, let’s establish that, for this article, we’re talking about the usual soft tissue injuries that you experience after an auto accident: Sprain/Strains of the neck/back. Those are the VAST majority of injuries from auto accidents. We are NOT talking about broken bones, damaged organs, etc. Just so we’re clear.

Back to the point…if you’ve got neck and back pain, my personal position on it is if it hasn’t gone away in a day or so, it’s maybe bad enough to warrant treatment. I mean, why suffer when you might be able to do something to get better? As for claim value, here’s the first lesson: Claims without treatment are worth LESS THAN claims with treatment. Duh. But you needed to hear that.

So, now that we’ve established that you need treatment, what are you looking for? Most victims go to one or the other…PT or Chiropractic. Why they choose what they choose more often has to do with their own opinions, not mine, which is for the best.

If you’re afraid of the “poppin and lockin” done by chiropractors, well, then you’ll probably do PT. If you’re not, then maybe you do chiropractic. Chiropractic’s upsides are that it’s passive and (this is the big one) most chiropractors won’t bill you up front and will await payment from your settlement proceeds. That’s a big deal in that it keeps you from dipping into your pocket during your recovery. PT, on the other hand, is more active (you have to do as opposed to have done to you) and for the most part they will ask you to pay up front, either in full or use your health insurance, in which case you have to pay your co-pay. Maybe that’s cool to you, maybe it’s not, but you have to factor in your comfort with that sort of payment schedule when making this decision.

In terms of value, PT, being the more conservative and less mysterious of the two modalities, is generally less frowned-upon by insurance carriers, so you’re more likely to get fully reimbursed for that. But depending on the chiropractor’s bills and your case facts, there’s still a great chance you should get that covered, too.

Health care choice is a personal thing, and shouldn’t be dictated by outside factors like claim value. But I do think it’s important that you have as much information as you can get prior to making important decisions. All the more reason to talk to a lawyer. Call me at 919-929-2992.

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Emotional Distress Claims from Motor Vehicle Accidents

Can you make a claim against an at-fault driver for emotional distress related to a motor vehicle accident?

As with most things in the law, the answer isn’t as simple as you would like.

The short answer is “yes.” But there is more to it. In North Carolina, this is what’s known as a Negligent Infliction of Emotional Distress claim. It is a valid cause of action in NC, so you can bring such a claim. However, the law is clear that you have to have a diagnosis from a health care professional in order to meet your burden of proof.

What does all of that mean?

Let’s say you’re scared to drive for a month after the accident. That sucks and would certainly disrupt your life. But let’s say you don’t seek any psychological health care as a result, and you don’t have a diagnosis (anxiety, PTSD, etc.) from a qualified health care professional. In that situation, you can’t meet your burden of proof, you can’t therefore prove your case, so you can’t recover anything from the at-fault party for that aspect of your claim.

Assuming similar facts but let’s say you DO go to a licensed counselor of some sort and you DO get a diagnosis of an emotional injury, then you CAN potentially meet your burden of proof, so the claim might pass muster.

But then again, there’s the work of proving what that claim is worth!

Don’t try to do this alone. As always, your health (mental and physical) are of primary importance, so seek the care you need first. THEN talk to an attorney about your situation. This is why professionals do what they do, so seek them out! Call me at 919-929-2992.

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First thing to do when you have an auto accident

BOOM! You’ve just been hit. Everything is confusing and you’re not sure what to do, or what even happened.

You may be surprised to hear this, but the first thing you do is NOT to call me. The first thing you should do after an accident is call 911. Hands down, this is the smartest play to protect you, your rights, and your claim.

Why is that? First, if there are really severe injuries, you can get an ambulance there. Peoples’ health is the most important thing, so calling 911 helps to safe-guard that. But there’s also the administrative aspect of this whole process. You want and need an accident report. Here’s the thing: Like pretty much everything else in life, your claim rests on a foundation. The foundation in the case of your claim is the accident. If the accident is documented by a (hopefully) unbiased, disinterested 3rd party, then you have a better chance of getting the facts of how the accident occurred established early and accurately. I know, maybe you don’t want to “make a big deal out of it.” But having law enforcement document an accident isn’t making a big deal. This is just part of living in an organized and responsible society.

I can’t tell you how many times I’ve heard a defendant’s story change after the accident. Sure, at first they feel guilty and want to be nice. But then they talk to this person, they talk to that person, they start to feel less guilty and more like a victim themselves (albeit of their own negligence, but that’s beside the point). And sometimes their insurance company gets in their ear…”Are you sure it happened like that? Is it possible it happened this other way…?” The next thing you know, this really nice ding dong who hit you isn’t so nice anymore, and you have a disputed claim.

But if you have an accident report, and the officer documents that the defendant accepted responsibility for causing the accident, it’s harder for them to go back on that after the fact.

Yes, call me (or any competent personal injury attorney) after you’ve had an accident. But don’t call me first! Call 911 first, get the accident documented, and then let’s worry about everything else.

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Slip and Fall Claims in NC and why they aren’t easy

I probably have this conversation once a month, and while I have documented it in my super sweet Video Library (https://www.jeffreyhowardlaw.com/video-library-nc-attorney/), it’s worth writing about again. And again.

Injury claims in NC can be tricky. After all, we have Contributory Negligence (https://www.jeffreyhowardlaw.com/contributory-negligence/), one of 4 states that still has that nonsense on the books (Yay for backwards NC!). So any time of injury claim based on negligence can be subject to this defense, even when it’s seemingly inappropriate. Slip and fall claims, or Premises Liability claims as we refer to them generally, can be extra tricky because of how the law has been shaped over time in this field.

For maybe the millionth time in my career, I’ll tell you that just because you’re hurt on someone’s property doesn’t mean that the owner of that property is responsible for your injury. That’s just not how it works here. you have to show that their negligence lead to your injury. Specifically, you have to show that by the exercise of reasonable care, they should have discovered the dangerous condition that caused your injury AND should have (at the minimum) warned you about it or taken action to address it. “Reasonable care” can vary depending on the situation. What’s reasonable for a 75 employee mega-store might not be reasonable for a picture framing shop.

Let’s step back to contributory negligence, what it means, and how it interacts with what I’ve described above. Contributory negligence (“contrib” in the business) is the doctrine that if you’re even 1% at fault in causing your accident/injury, you can’t recover anything from the person that’s 99% at fault. The idea is that you have a duty to exercise “reasonable care” (there’s that phrase again) to look out for your own safety.

Here’s where contrib and premises liability theory clash to the great detriment of plaintiffs in NC. If you can successfully show that there was a dangerous condition that caused your injury, and it was so bloody obvious and dangerous that the owners should have seen it and done something about it, you’re probably helping them to prove that it was so bloody obvious that YOU should have seen it and exercised “reasonable care” to keep yourself away from it. It is a kind of Catch-22.

Don’t get me wrong. It is possible to have a very viable slip and fall or premises liability claim in North Carolina. You just have to have the right facts. It helps if you have an attorney to guide you through this, so call me at 919-929-2992.

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Who Should Handle Your Med Pay Coverage?

Paramedics and a fireman strapping a wounded woman with a neck brace on a stretcher

Let’s start with what Med Pay is first. Med Pay is short for Medical Payments coverage. This is EXTRA, no-fault coverage you are paying extra dollars for on your auto policy. It covers you when you’re hurt in an auto accident, regardless of fault and has NO NEGATIVE CONSEQUENCES FOR ITS USE. So if you’re in an accident that is not your fault and you have Med Pay, this extra coverage can help supplement your recovery and help mitigate the costs of treatment.

Sometimes health care providers want to bill your med pay directly (especially when you don’t have health insurance). I get it. They want some sort of guarantee of payment. I totally understand that and it’s not necessarily a bad thing; sometimes I even prefer it! But in situations where you have more than one health care provider that’s going to want to get paid from your settlement, then you should be careful about this.

The safest strategy, with a few exceptions, is to let your attorney handle the Med Pay. We know whom to pay, when, and how much, so we’re protecting your recovery while following the law. Health care providers – bless them, for sure – will be more concerned about paying their bill than making sure all of your validly perfected liens are addressed.

So, in short, if you have Med Pay, use it! But make sure you use it wisely and have someone who knows what they’re doing help you out with it. Call me at 919-929-2992.

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Getting Your Lost Wages Reimbursed in an Injury Claim

Most people who are in an accident lose time from work, and if that happens, you probably lost money. But if you can’t document it correctly for the insurance carrier, you’re not likely to get them to voluntarily pay you back. So how do you best document it?

First, document the justification of your absence from work.  If you have a doctor’s note for the time period?  That’s best.  The law doesn’t require one exactly but if you’re arguing to a jury, it would be helpful to show that you missing work was due to more than you just not feeling like going.  Of course, not feeling like going to work can be a legitimate reason; who would feel like going to work after breaking a leg? Why would you need a note?  But in these situations, more is better, so if you can get a doctor’s note, that’s best.

Second, you have to show precisely what the loss was.  The gold standard for doing this is to have your employer provide a note indicating BOTH a) how much time was lost, AND b) what that time was worth. 

**It is absolutely critical that we have BOTH of those parts of the equation…the amount of time and the value of that time. Having one without the other is absolutely #$%^&*&^%$%^ useless.**

For example, if you missed 5 hours and make $20/hour, you’ll want the letter to state BOTH of those two things. Anyone can do the math once those variables are provided, so it doesn’t have to complete the equation.  But you HAVE TO HAVE BOTH OF THOSE VARIABLES!

If you can’t provide all of that documentation, you still might be able to get some or all of your lost income reimbursed.  If you provide tax info, pay stubs, and a doctor’s note (or maybe no note in the case of short time periods) then we still might be able to extrapolate the value of the loss.  But the more documentation, and from the more independent sources, the better, so don’t count on this method if you don’t have to.

I’m often asked about situations where you didn’t lose money, but you lost vacation/sick time. That’s still a loss in my book, so you should still be able to recover the value. However, you’ll still obviously need to document it, and the best way is that employer letter mentioned above.

If you’re self-employed this whole process is more difficult because there is no independent third party to provide documentation.  You might be able to do the tax/pay stub method, but sometimes this doesn’t work quite as well for the self-employed.  Impossible?  No.  But this complicates things a bit and may need some expert assistance.

And even if you do all of that, nothing is guaranteed in this business. Generally, though, the more thorough your documentation, the better your chances. As always, ask me questions about this and I’ll do my best to help. 919-929-2992.

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Record-Setting $8.235 Million Verdict by Local Firm

I’ll be the first to say that law enforcement officers have one of the toughest jobs out there. Having said that, there’s protecting yourself and then there’s crossing a line.

In this sad set of circumstances, the victim was on his own property doing donuts in his truck. For no other reason than the deputy was offended by this, the victim was shot and permanently injured. The superb attorneys at https://zaytounlaw.com/ obtained a massive verdict to help compensate this man for his injuries. Kudos to them!

Look, no one really “wins” when this sort of thing happens. Would you trade permanent physical disability for money? If you really think about it, you probably wouldn’t want to make that trade. But in the end, as many of my clients have often said, this isn’t about the money, it’s about what’s right.

I hope you’re never injured due to the actions of another. I really do. But if you are, the only thing you can do to make things right is to talk to an attorney. Call me at 919-929-2992.

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Delivery Dude Dog Bite Cases

With so many people out there making deliveries in the gig-economy, dog bites are becoming more and more common. What can you do?

North Carolina is purportedly a “strict liability” state, meaning that if your animal causes harm, you’re responsible for it. Period. However, in practice this has not proven to be absolutely true. The way the law has developed dog owners essentially get one free pass, which is referred to as the “one free bite rule.” The way this is interpreted now is that once an owner is on notice of their dog’s “dangerous propensities” then they will be strictly liable. But if they have no reason to believe their dog is dangerous, then until then, they may not be on the hook.

However, this isn’t altogether clear. What does “dangerous propensities” mean anyway? It essentially means that the animal exhibits behavior that a reasonable person would see might result in injury. Let’s say you have the sweetest dog in the world, but he weighs 100 lbs and loves to stand up and paw and visitors. Doesn’t bite or mouth or do anything with his teeth. But then grandma comes over to visit. Big Sweetums hops up on her and she falls. Well, a reasonable person would see that this sort of behavior might result in injury, so they’re on the hook. But you still have to prove that the owner new beforehand of this.

This is less of an issue when you have a dog that has a history. In many jurisdictions, once a dog has been reported to bite someone, there may be a judicial process that begins to move to label the dog as dangerous. If this happens, then you have very powerful evidence that the dog’s owners were aware of the dog’s dangerous propensities, so if anything happens again, they’ll be in trouble.

So let’s say you’re working for Door Dash or whatever, you go to a home to make a delivery, and a dog gets out and bites you. What can you do?

Well, the first thing you might think of is a worker’s comp claim. It happened while you were working, right?! But in NC, if you aren’t an employee then you aren’t covered by worker’s comp; most gig-economy positions are considered independent contractors, but there is some interesting litigation going on in California which may change things…we’ll see. For now, though, if you’re doing an app gig, you’re probably not an employee and therefore probably not eligible for worker’s compensation.

However, you may have a good old normal civil claim against the dog owner. This is when we get back to the whole “one free bite” thing. Were they aware of their dog’s dangerous propensities? If so, can you prove it?

Even if you can’t prove that, you’re not out of it altogether. What if you went away from the whole “strict liability” argument and just went for straight negligence? Should they have secured the dog before they opened the door? You betcha! So in that case, it was their negligence that caused the injury, not the mere ownership of the dog. Or what if it wasn’t a friendly old Fido, but a breed that is known for its aggression? Would they then be “constructively” aware of its potential dangerous propensities? There are cases out there that support that.

Dog bite claims might seem simple, but they’re far from it. If you get bitten by a dog in NC, call me. 919-929-2992. I hope I can help.

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Jeffrey Allen Howard, Attorney at Law, PLLC
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