Slip & Fall/Negligence
Increasingly, Michigan courts are holding that “snow & ice happen” during Michigan’s winters. As a result, they have held that such conditions are open and obvious to the point, where there is no liability for an accident caused by snow and ice.
This is particularly true of snow-covered ice. However, there have been some cases holding that “black ice”, i.e., ice that cannot be seen, can give rise to liability in certain situations.
Should you rely on your personal injury lawyer to refer you to the doctors you need to present a winning case? Yes and no; no and yes. Let me explain.
In most cases, by the time of our initial attorney-client meeting, my clients have at least been examined by an emergency room doctor, or they have seen their own doctor, for follow up, in the immediate post-accident period. Usually, it is best for personal injury clients to obtain treatment from their own providers, and to get referrals to specialists, from their own doctors.
Lawyers vary in their opinions as to whether it is helpful, or hurtful to a client, to be the one to direct a client’s medical treatment.
How can it hurt to have a lawyer refer you to “one of their doctors”? First of all, lawyers are not medical doctors, and nobody but a medical doctor, should direct a client’s medical treatment.
Next, once a case starts, and the insurance company hires a defense attorney, that attorney will have the right to subpoena your doctors’ medical records. In plain English, the insurance companies and their lawyers get to see the records. All of them. 100%. Everything from soup to nuts.
When you file a claim for personal injury, you make your current and past medical history a valid issue in your case, and you cannot obstruct the insurance company’s efforts to get your medical records. Your lawsuit, and your claim for personal injury benefits entitled them to see these records. When they do see these records, if the case was referred by a lawyer, there will usually be some note in the file to that effect.
Why does that matter? Because it opens up that doctor’s findings to a charge that they were trumped-up, and phonied-up, to make you look injured worse than you really were. Insurance companies argue, with some success, that the doctor relies on attorney referrals, to keep his/her (i.e., the doctor’s) business afloat. As a result, the doctor knows that if the attorney sends a client over, and the doctor does not support the client’s injury claims in the medical records, then that stream of referrals will come to an end.
(This situation is actually much more common, in the reverse situation, where the insurance company and its lawyers send an injury claimant to a doctor whom they refer in, to provide an evaluation, in support of the insurance company’s position. However, that is a topic for another article.)
In some situations, the doctor sees the patient/injury claimant “on a lien basis”, meaning that the doctor is willing to see the patient, without demanding payment/proof of health coverage, at the time of examination or treatment. The doctor is paid when there is a financial recovery.
Where the evidence shows that the doctor saw the client “on a lien basis”, insurance companies often successfully argue that the doctor has a financial interest in the outcome of the client’s personal injury lawsuit, and therefore, his/her opinions cannot be trusted. The financial interest the doctors have, is that they will not be paid, unless and until the client wins their lawsuit, or gets a financial recovery.
As well, some doctors have become so identified with certain attorneys, that just knowing which lawyer had the case, would tell you which doctor saw the client. Some lawyers will tell you that if they can put a cooperative doctor, or medical service provider on a client’s case, they will always get a better financial recovery for the client. 28 years of experience tells me that there is no such correlation.
Sure, sometimes the recoveries are great, when the lawyer sets up the medical treatment, but sometimes not. In fact, you will not hear any of the big TV advertisers admit that when they do refer clients to doctors, that their client recoveries on average, are no better, when the client seeks his/her own medical treatment. The most well-known of the TV advertisers will also not admit that like any other lawyer, they get their cases thrown out of court – including those where they have referred in the doctors.
Personal injury clients are routinely sent to insurance company doctors (called “independent medical examiners”, or IME’s; sometimes they are referred to as “defense medical examiners” or DME’s). Whatever their name, these are doctors who are often nothing more than “opinion writers for hire” who prostitute out their medical degrees and credentials. When this happens in your case, I need to be able to call out the insurance companies for “gaming the system”, and for trying to mislead juries and courts, without exposing my clients to the same accusation.
In short, it is usually best for the client to get their own medical treatment, and to arrange referrals to specialists, by their own doctors, or by sources that have nothing to do with me.
Is There Any Time an Attorney Referral to a Doctor is Appropriate?
Yes. And yes, I have referred clients to doctors, though I do try to avoid doing so.
The purpose of medical treatment, is to help provide healing from sickness or injury. The purpose of medical treatment is not to cynically support shaking down insurance companies, just because that can be done.
Insurance companies are often guilty of some of the worst, most cynical, even fraudulent behavior; however, that does not excuse getting into the muddy excrement with them, “because everyone does it”. In fact, many insurance companies conduct themselves professionally, and appropriately.
Even when they do not, and even when they do stoop to low behavior, my clients do better when they and I conduct ourselves honorably, and above board. Juries and judges appreciate this, and they reward us accordingly.
I refer clients to doctors, when the client needs medical care, but has no health insurance, and no access to any other type of coverage. I try to get doctors to take these cases on the lien basis, that I referred to above, in the hope that a recovery will pay the doctor; I make no apology for doing whatever I can to help my clients get medical care in these situations.
While I still have the same qualms about my name showing up in a doctor’s file, as a referral source, those qualms have to take a back seat to my clients’ urgent needs for medical care.
This is consistent with my mission statement at The Frank Law Firm, PC: to leave my clients in a better position than I found them. Give me at call today at 877-FRANK-LAW. I will do whatever I can to help.
Under Michigan law we must be able to prove that the municipality responsible for the sidewalk had actual knowledge for at least 30 days, of the defect causing your injury.
Another way to establish liability against the local municipality is to show that had they been reasonably diligent in maintaining the sidewalk, they would have discovered the defect. If the defect is a “vertical discontinuity”, or a raised sidewalk, that height difference must be at least two inches.
You can make a claim against a government agency for an injury in a building maintained by that agency, if all of the following conditions can be established:
- The building is associated with a got agency, and is open for use by members of the public;
- A dangerous or defective condition exists in the building;
- The government agency responsible for the building had actual/constructive knowledge of the alleged defect; AND
- The government agency responsible for the building failed to do anything to remedy the defect.
NOTE: Suits against the government are subject to strict “notice of claim”, within 60-120 days; to protect my clients, I try to get those “notices of claim” in, within 60 days of an accident. Failure to submit the “notice of claim” may result in a good case, with serious injuries, being dismissed.
Frequently Asked Questions. Honest Answers.
Absolutely. The law has become so complex, that many experienced attorneys no longer handle these cases in Michigan.
You need someone to help you navigate the insurance claims stage, the civil litigation system, and all of the complexities of the ‘Open & Obvious’ Rule, and the exceptions, and applications of this rule. Call Jon Frank today
Yes, and make a point of requesting a copy.
Even if you do not get a copy of the report, it will help to establish that you were not ‘making all of this up,’ and that the accident really happened.
Once I get involved, I should be able to get a copy, not just of the accident report in your case, but in connection with similar previous accidents
Immediately. The first and most important reason, is to make sure that any injuries you did suffer are treated before something worse develops. As well, Defendant property owners will often argue that if your injuries were that serious, that you would have obtained medical attention, sooner rather than later. There is no reason to postpone getting checked out.
Moreover, medical records sometimes help establish the fact of the accident, when there are no immediate witnesses.
Typically not, because under Michigan’s Workers’ Compensation laws, an injured worker’s “exclusive remedy” against his employer, is through the Workers’ Compensation system. Indeed, if you were to attempt to sue your employer for an on-the-job injury, he/she would be entitled to have your case dismissed, due to this “exclusive remedy” rule.
You can, however, sue other non-employer Defendants who might be responsible for your injuries.
It is always helpful to take photos of the accident scene, and to gather whatever good evidence of your accident, you can give me to help get your case going. It is also helpful to get photos of your injuries; if the injuries are to private areas, normally covered by clothing, try to take photos that are modest, and can readily be shown to a jury.
Be careful not to endanger yourself in doing so. The property owner may not much appreciate you taking pictures, or behaving as though you were investigating your own accident. Leave the investigation to me, and do not endanger yourself.