Frequently Asked Questions - Personal Injury
Why shouldn’t I just call the insurance company and handle my own case?
Insurance companies are in business to make money. They are big companies with big resources. Their adjusters and lawyers go through extensive training to learn how to defend against claims just like yours. They understand how delays in your case and medical care negatively impact the fair compensation value of your case in the eyes of juries. They may act like they are there to assist you, but their only duty is to represent their best interests, not yours. You need personal injury lawyers on your side with the same knowledge of the legal system, and the resources and skills to fight for your best interests. We fight for people just like you every day at Simmons & Fletcher.
What if I can’t afford the medical care I need?
A claims adjuster will often tell you that you have to pay the bills up front, submit them to us and then we will decide if we agree to reimburse them or not once your treatment is over. When you hear that, it should be a big red flag. They aren’t there to help you get care. They are there to defend their insured.
There are several options you have when you need care. Do you have health insurance, Medicare or Medicaid? Some people ask, “Why should my insurance pay?” The answer is: because you pay for it. In Texas, most health insurance is entitled to seek reimbursement of the bills they pay when they are caused by someone else’s negligence. Another option is PIP on your auto policy. It is required by law to be provided to you unless you reject it in writing. You may have it on your auto policy and not even know it. We will help you find this out. MedPay is another option on your auto policy that is similar to PIP and may be available to you. Lastly, if you need care and have no way to get it, there are doctors who are willing to treat you on credit until your case is resolved and you pay these bills. We can help you consider all options and get the medical care you need without delay.
What is a Letter of Protection?
A Letter of Protection is a tool used to help an injured person pay for medical care they otherwise cannot afford or obtain without substantial financial hardship. This article is to help people understand them and why they are used.
Often, when you go to the doctor you will see a notice that says something like: “payment is expected at the time services are rendered.” But what many people do not realize is that many health insurance plans refuse to pay for medical care incurred as a result of injuries that come from an automobile collision. They expect you to look to the auto insurance carrier for the responsible party to pay the bills.
Automobile liability insurance carriers, however, will not pay for your medical care as you go. They expect you to pay for the care, then submit all of the bills at once and they then may make you an offer to settle the case (or they may low ball you or simply tell you to go jump in a lake). If the medical care lasts for months or longer, the auto liability insurers typically still expect the injured person to front those costs. Many doctors have come to expect this from insurance companies. As a result, many doctors refuse to treat people via their regular health insurance if the injury is the result of an automobile collision.
What do you do if you are injured, cannot work, do not have the funds for the care and your doctor will not accept the health insurance? Similarly, what does a person do if they do not have health insurance at all?
This is where a Letter of Protection comes in. A Letter of Protection is a letter sent by the attorney of an injured party to a medical provider agreeing to pay the medical expenses owed by the patient out of any future recovery whether by settlement or by trial and judgment. It is a contractual agreement that allows the injured person to get the care they need effectively on credit with the creditor (the medical provider) agreeing to wait until the conclusion of the case to demand payment. If the attorney settles the case or obtains a judgment in the case, the attorney then has an obligation to make sure the medical provider’s bill gets settled out of those funds. If there is no recovery (i.e. the injured person goes to trial and loses the case), then the injured person is still responsible for the bill and the medical provider retains the right to pursue them for the full bill just like any other debt.
In addition to the above, Letters of Protection are sometimes used to delay collection on a previously incurred medical bill. For example: Assume you are in a wreck. You go to a medical facility for care. They submit the bill to your health insurance carrier who later refuses to pay the claim because it is for care rendered as the result of an automobile collision. You cannot afford the expensive bill. Your personal injury lawyer may be able to provide the medical facility with a Letter of Protection in exchange for the medical provider not filing the bill against your credit or otherwise pursuing collection efforts. In the same manner as above, the Letter of Protection allows the injured person to wait until the case is resolved in exchange for an agreement to pay the bill out of any proceeds from the claim. If there are no proceeds at the conclusion of the claim, the medical provider then still has the right to pursue collection efforts against the injured person.
Insurance company lawyers often try to use Letters of Protection against the injured party by insinuating that the doctor is biased because his bill is still outstanding. Sadly, Letters of Protection would not even be necessary if the insurance companies paid the bills for the injured person from the git-go. They put many people in a position where they have no choice but to seek help under a Letter of Protection and then they try to use the Letter of Protection to avoid responsibility for paying the bills at trial.
What if I don’t want to sue a person over a car wreck?
The insurance industry has done a fantastic job of using the media to paint car accident lawyers and their clients as evil for filing lawsuits against people. But what they don’t tell you is that the law prohibits you from suing insurance companies directly when their insured causes injuries to you. By Texas law, you must sue the individual and you cannot tell the jury that he has insurance.
In reality, it is the insurance company who pays for the defense and ultimately pays the judgment against their insured. But even mentioning that an insurance policy exists can cause a mistrial. Now that you know how the deck is stacked against you, shouldn’t you have a lawyer on your side that will fight to level the playing field? At Simmons & Fletcher, we work to do this every day.
Do I have to pay my health insurance carrier back out of my settlement?
The answer to this question is usually “yes.” Most health insurance plans contain a subrogation clause. “Subrogation” is the right to be reimbursed for expenses paid on behalf of another. There are three types of subrogation: statutory, contractual and equitable.
Statutory subrogation is where there is a specific statute or Federal law that creates a lien of the payor against any right of recovery that the beneficiary has. Medicare and Medicaid are examples of government-funded programs that are entitled to subrogation against a personal injury claim by law. Additionally, hospitals providing emergency service in Texas and some emergency service providers have a statutory subrogation right to recover for services rendered to an injured party if that party recovers damages from someone else for the injury.
Contractual subrogation is where a written contract obligates someone to repay benefits if recovered in a personal injury action against another. Most healthcare insurance carriers include a provision in the contract that entitles them to this type of subrogation. Thus, you should always check your health insurance policy to be sure of your contractual obligations.
The third type of subrogation – equitable subrogation – is where there may be no contract but the law determines a party should be allowed subrogation as a matter of fairness. This clause can also be used in some circumstances to require reimbursement. You should always double-check your health insurance policy and consult your attorney about the legal effects of any subrogation clause it may contain if you are bringing a personal injury claim against another for medical expenses that were paid, all or part, by a health insurance carrier.
Does Making a Claim for Mental Anguish Mean That The Insurance Company Gets to See All of My Prior Medical Records Regarding Psychological and/or Psychiatric Counselling?
The Answer is “No.” The Texas Supreme Court has held that a routine allegation of mental anguish or emotional distress does not place the party’s mental condition in controversy. In the case of Coates v. Whittington, Mrs. Coates claimed mental anguish in a personal injury action, and the defendant moved for a mental examination. The trial court granted the motion and ordered Mrs. Coates to undergo the examination. Mrs. Coates appealed the court of appeals denial of her motion for leave to file petition for writ of mandamus.
The Texas Supreme Court found abuse of discretion holding that Mrs. Coates’ assertion of mental anguish did not place her mental condition in controversy. In construing Tex. R. Civ. Proc. Rule for 167a (now Rule 204(c)), compulsory mental examination, the court stated that a Movant must show that the mental condition of the party is in controversy, and that good cause exists for compelling an examination. The court next looked at the application of the federal rule for compulsory mental examination, and found that federal courts have consistently distinguished “mental injury” that warrants a psychiatric evaluation from emotional distress that accompanies personal injury. The court reasoned that Mrs. Coates’ testimony of feelings of embarrassment and self-consciousness of injury are not allegations of permanent mental injury nor any deep-seated emotional disturbance or psychiatric problem; rather, they fit within the definition of mental anguish as emotional pain, torment, and suffering that a person who has been injured would experience in all reasonable probability.
The court concluded that to grant defendant’s motion for mental examination because Mrs. Coates has asserted mental anguish damages would open the door to involuntary mental examinations in virtually every personal injury suit, which such sweeping probes would be contrary to the intention of Rule 167a. The court further reasoned that plaintiffs should not be subjected to public revelations of the most personal aspects of their private lives just because they seek compensation for mental anguish associated with an injury. The court concluded then that Mrs. Coates prior family problems and complaints of depression are clearly peripheral to her personal injury, and distinct from her assertion for mental anguish.
The same logic applies to medical records. The Defendants will have to show that the claim is for more than a routine allegation of mental anguish (i.e. a mental injury requiring medical care or having long term psychological effects) before they are entitled to peruse an injured party’s past medical records for psychological and/or psychiatric counselling.
Does Automobile Liability Insurance Cover Intentional Acts?
Answer: No. Under the typical Texas automobile insurance policy, you lose the right to make a claim against a driver who intentionally hits you. There is a specific exclusion that says the insurance company is not obligated to pay a single dime if the insured intentionally causes the collision. It does not matter how much damage he does or who he hurts.
