Q. I was involved in an auto collision where I was not at fault. The driver who was at fault had minimal liability coverage, but my medical bills alone are more than that amount. What do I do?

You should report the injury immediately !! This is perhaps the most important thing that you need to remember. Report it to a supervisor or manager so that you will be protected. Try to get it documented. Sometimes people will think "oh, it doesn’t hurt much"....or..."well, it’s almost weekend, so I’ll wait until Monday", etc. Don’t wait!! – if you get better quickly and don’t need treatment, that’s great. However, it won’t hurt anything to report the injury when it happens "just in case".

Keep in mind that your work injury claim needs to be filed with an insurance company - not just with your employer. If your employer doesn’t file the necessary paperwork with the insurance company, you should do it yourself. Don’t assume that it’s being handled; follow up with the right people within the company.

Know that you will probably be drug tested if you are injured on the job and that if you fail the test, you will jeopardize your ability to receive treatment or wages through workers’ compensation.

Although the insurance company will have to pay for your treatment, keep in mind that they get to control that treatment in terms of which doctor and medical facilities are used. If you decide to go to the doctor or hospital of your choice, you run the risk that it might not be covered.

You can only receive lost wages if the doctor specifically takes you off work. The law doesn’t allow you do decide if you can go back to work. Rather, it’s up to the doctor. Also, if the doctor sends you back to work with restrictions (sometimes called "light duty"), it will be your responsibility to return to work. Even if you think you can’t do anything and even if you think that there is no "light duty" where you work, you still need to return to work.

In most circumstances, you cannot sue your employer. The only recovery you can get must come through workers’ compensation benefits. However - if your injury was caused by someone else that is not your employer or an agent of your employer, you may have a separate claim against that person or company. You should speak with an attorney about that possibility.

Each year hundreds of families suffer a birth injury at the hands of a medical provider. Many of these injuries are caused by a lack of oxygen to the child’s vital organs during what would otherwise be a routine  birthing process. A physician must exercise particular care to transcend the infant from total reliance upon the mother for life’s sustenance, oxygen, food and blood, to reliance upon the child’s own heart, lungs and brain to sustain life. Minutes, and even seconds, count during this very critical time. Every moment that an infant is denied oxygen, irreversible damage occurs to the child’s brain and his or her ability to grow, learn and enjoy a normal life independently of others. 

If your child suffers a birth injury, chances are your life as you know it will  change forever. He or she could require special medical needs, special housing, education and transportation for the remainder of his or her life. You may even need a full time medical care provider to assist you. Even your family members will require specialized training to care for a child with a debilitating birth injury. We will hire a Life Care Planner who will work with your doctors to formulate a Life Care Plan for you child. These persons will meet with you to understand the particular needs of your family. In the end, you will have a written plan that explains and provides the costs and special needs that your child will need for the remainder of his or her life.

Birth injuries can be particularly taxing upon a family because in most cases, the infant requires special medical needs and care for the rest of his natural life. Most families are simply not equipped financially or emotionally to care for a child with a birth injury. Many of these "special needs" are neither covered by Medicaid nor private medical insurances. You and your family members may need counseling and specialized training that allow you to integrate your child into the family setting. Families in these cases need the assistance of our firm to help them recover sufficient funds with which to provide even the basic necessities of these children and their families.

Starting the Birth Injury Case- If you even suspect that the hospital or your physician was the cause of a birth injury, start by giving our medical negligence department a call. We start these, as all medical negligence cases, with the mother’s prenatal medical records, the actual birthing records and follow with the infant’s medical records. These records can be voluminous and difficult to understand. Our team of medical and legal professionals are trained to read and find the truth from these medical records. Often times, its not what is in the records, but rather, what is missing that is important.

Failure to Recognize High Risk Pregnancies- We carefully analyze the prenatal records for clinical signs and symptoms that the infant or mother may have displayed well before your due date. A few examples include high blood pressure, abnormal blood values, abnormal fetal heart strips and breech position of the child. If these tell tale signs or symptoms are apparent in the prenatal records, your OBGYN may have been fairly placed on notice that special care and attention should have been provided to your baby. In such cases, specialized physicians should have been present at the actual birth of your child. If your pregnancy was deemed "high risk" or problematic by your physician, a pediatrician should have been present at the birth of your child.

In some cases, prenatal records indicate that a scheduled C-section is warranted. In other cases, specialized physicians should be in the delivery room waiting for the arrival of your child such that immediate, specialized care can be provided. Again, every moment counts for a child. If your physician failed to take the necessary precautions, you may have a case for medical negligence.

Failure to Recognize that Your Baby Developed Late Stage Problems-  We next analyze the birthing records for signs and symptoms that the child should be assisted by your physician. When you arrive at the labor and delivery department, you should be hooked up to at least an external fetal heart monitor. This device, when effectively used, allows the medical providers to track your baby’s heart rate relative to your contractions. In many cases, the fetal heart strips can be "non-reassuring" thereby suggesting that the physician abandon a vaginal delivery and immediately take the child by C-section. One of the most common occurrences we see is when the labor and delivery nurses fail to promptly communicate the mother and the infant’s physical condition with the physician. If your child suffered a brain injury and you did not see your physician during the labor process, or saw your physician very little during this critical time, you may have a cause of action for a birth injury.

Failure to Provide Prompt and Adequate Care After Birth- Once your child is delivered, the hospital must have adequately trained personnel to care for your child. Special attention must be given that your child at once begins to breathe and otherwise show signs of successful separation from the mother. Nurses and other physicians present should be certified in Pediatric Advanced Life Support and in other critical areas as well. Failure to adequately staff and train these medical care providers can equate to a birth injury if your child develops problems out of the womb. Likewise, there should be adequate staff on call to care for your child in the event of an emergency.

It May Not Be Too Late- If you have a child that is a slow learner, blind, deaf, crippled, unable to walk, deformed, or otherwise mentally or physically deficient and you were never provided an explanation that satisfied you, it may not be too late to pursue your birth injury case. Many states allow a minor to file an action for birth injury up to even his or her 21^st birthday. For example, in Arkansas, an action for birth injury may be filed by a child up to his 11^th birthday. In some other states, the action does not expire until even later. If you think your child suffered a birth injury, don’t hesitate to give us a call. Someone has to be an advocate for your child.

Well, the answer is "it depends". Not on how much you paid for the car, or how much you still owe on the car, but on the value of the car immediately before the wreck as compared to its value immediately following the wreck. The amount left on your car note is irrelevant.

Example: You drive a 2004 Nissan Maxima. You bought (financed) the car in 2007 for $15,000. Over the last 2 years you have made $6,000 worth of monthly payments. This leaves you owing $9,000. Yesterday, you were t-boned and the damage to the car makes it a total loss. This means it would cost more to repair the car than it’s worth. Why then, if you still owe $9,000 on the car, is the other driver’s insurance only willing to give you $7,500 for the total loss? The short answer is that although YOU may still owe $9,000 for the car, at the time of the wreck a five year old Maxima (same make and model, same mileage, same features) had a market value of only $7,500. They are not obligated to pay off the car for you, so that means you will still owe $1,500 on the note. They should, however, also pay you for the sales tax you would incur to buy another vehicle of equal fair market value and the cost of license and registration. You must still make your payments, or make one lump sum payment to the finance company to satisfy your obligation.

All this means is "YES", you can be an innocent victim of someone else’s negligence, and still be responsible for paying off your car note. The lesson here is to make sure you negotiate a fair price for your vehicle (according to make, model, mileage and features), and to carry adequate collision coverage on your own policy.

We all care deeply for our family members and hate to see them suffer from any acute illness or injury that is caused, or apparently caused, by a medical provider. This emotional suffrage is heightened when our family members seek medical treatment and their condition is either exacerbated or a totally new illness or injury is created during the medical treatment regimen. In short, when we go to the hospital or doctor seeking treatment for one illness and we come away with a new illness or injury in the process, redress may be in order.

I speak with hundreds of persons each month who suspect that they or a loved one has been the victim of medical negligence. If you suspect medical negligence, it is better to call and inquire than to sit on your rights. However, every case that involves negligence by a medical provider may or many not justify litigation for a variety of reasons. When you call, you can rest assured that we will analyze your case from several different angles and that we will fairly report our findings to you. Each of those facets are discussed below.

Case Intake Process- If you suspect that you or a loved on is the victim of medical negligence, you can begin the process by giving our medical negligence department a call. It is important that you act quickly as an applicable statute of limitations applies to your case. Only in limited situations can you file litigation for medical negligence after the applicable statute of limitations has expired. For example, in Arkansas, the statute is two years from the date of injury; in Tennessee, one year; in Texas, two years; and in Missouri, two years. Although this sounds like a long time, it is not as the proper analysis of a medical negligence case is very time consuming.

When you call, be prepared with information on the victim, including their full name, address, telephone number, date you believe the injury occurred and the factual circumstances behind the event. If you can, find out the names of the persons, e.g, names of physicians, nurses and other medical providers who provided any treatment to the victim. If you are not prepared to call us yet, keep good notes of your conversations with the medical providers, including the names of the persons you spoke to and the information they relayed to you. Take discreet photographs of the injuries and the victim if possible as and when treatment occurs.

Initial Case Analysis- Our trained professionals may be able to discern immediately if you have a viable medical negligence case. Remember, sometimes, bad things happen to good people and even though you or your loved one received a bad result in their medical treatment regimen, it may not justify legal action. Our staff may, based upon the information you provide, may elect to take the next step and obtain proper releases such that we can obtain your medical records.

Medical Record Analysis- Medical records can be burdensome in many ways. First, it can take up to three months or more to obtain all of the records depending upon the extent of the treatment you received and the number of medical providers involved in your treatment. Second, they can be confusing and difficult to read. Our professionals are trained to interpret the records and find the truth about your treatment. This too, can be time consuming depending again, upon the extent of the records. It is not uncommon that the total medical record for a serious illness can be over 2000 pages long. Third, if the medical negligence case involves the death of a loved one, we may have to set up an estate before we can even request the medical records. Unfortunately, the medical records are required in every medical negligence case. There may be some cases where we ask you to obtain the medical records for reasons beyond the scope of this blog.

Additional Information- Our staff will probably call you for additional information as the case progresses. It is important that you timely provide the information as and when it becomes available to you. It is also important that you document your treatment with written notes, photographs and other things that will help you recall what occurred.

Final Analysis- Once all the records are received, we began our "in house" review by our staff of medical and legal professionals. There are many angles and areas from which a putative medical negligence case must be analyzed. Each and every case must contain proof of negligence, or a violation of the standard of care, causation and damages. Each of these areas are discussed below.               

Violation of the Standard of Care. We must ascertain, and be prepared to prove in a court of law, that the medical provider has violated the standard of care. A violation of the standard of care is often used interchangeably with "negligence." The negligence may involve action, or a failure to act that was wrong. Sometimes, the negligence may be  apparent. For example, if a surgeon leaves a foreign object in your body during a surgery, such as a sponge, the negligence is apparent. In most cases, however, your case must be referred to a medical provider of the same specialty for analysis to determine if the medical provider violated the standard of care. This "medical expert" must be willing to review the records and then testify that the medical provider "violated the standard of care".  In so doing, he or she must describe the mistakes made by the medical provider, describe the better course of action and how the outcome would have been different.

It is often said that medicine is last great frontier. Truer words are never spoke with reference to medical negligence. The truth is, although modern medicine has extended the life of many over the past 20 years, we still don’t know everything about the human body. There are many diseases and conditions for which there simply is no cure. Furthermore, medical providers, much like attorneys,  often must make judgment calls as to the best course of action in your treatment regimen. He or she makes those judgment calls based upon the medicines and facilities that are available to them at the time of your treatment. The fact that your medical provider made the wrong call, or a call that caused a bad result may not automatically be a violation of the standard of care. It may simply be a good faith judgment, albeit errant, call for which there is no remedy.

Hence, finding a qualified expert is not as easy as it sounds. In most cases, we must go out of state to locate such persons as local physicians are hesitant to testify against their peers.  Further, because medical providers are often placed in a position where they must make judgement calls about your care and treatment, it is not axiomatic that an errant call is a violation of the standard of care.

Additionally, the quality, size and location of the hospital may impact the applicable standard of care. For example, what might be negligence at the Mayo Clinic may not be medical negligence at a hospital located in rural Arkansas. Stated simply, as the size of the locality and hospital increases, so does the expectation as to the quality of treatment received. Likewise, the "standard of care" rises in large facilities and cities. Therefore, depending upon the state where you live, we might also have to find a medical provider that is familiar with standard of care in the location where you received treatment. In such cases then, we may not be to retain a physician who practices medicine in New York City to testify in a case that occurred in a city of 5000 people.

Causation- We next examine the case to ascertain whether the violation of the standard of care "caused" the bad result. Again, a qualified expert must be willing to testify that but for the violation of the standard of care, your outcome would have been different. For example, if a physician failed to diagnose liver cancer resulting in death, he may have fact been negligent. However, it may be difficult to find a physician who would testify that the outcome would have been different, i.e., the negligence caused the death,  as liver cancer is 99% fatal. In a case such as this, it was not the physician’s failure to diagnose the cancer that resulted in the death; rather, it was the cancer itself. In short, there can be no intervening or "other" cause that resulted in the bad result. We will gather information about your entire medical history to assist us in elimination of "other causes."

Damages-Finally, we examine the extent to which you have been damaged and whether these damages were actually caused by the negligence. Typical examples of damages are death, amputation, brain damage, lost wages, the costs of past and future medical expenses, pain and suffering, and scarring and disfigurement. Any damages that we assert on your behalf must be directly caused by the negligence. For example, if you were retired when the negligence occurred, you could not recover "lost wages" as you were not a wage earner when the negligence occurred. In other words, it was your retirement that caused you to lose your wages, not the medical negligence. We will ask you to provide us with photographs of the victim, tax returns and other similar items to establish your damages.

If you have been rendered disabled or in need of vast future medical costs or care, we may hire a life care planner to calculate your damages. The life care planner will ultimately prepare a life care plan for you. The LCP will outline the costs of future medical expenses and needs, transportation, housing and other special needs that are required due to your disability. We may also hire an economist to calculate your future lost wages. Finally, we may also hire a vocational rehabilitation expert to assist you finding new employment or in determining even if you are employable with your injuries.

Subjective Factors- Finally, we analyze your case based upon subjective factors. These items are too voluminous to list. Examples are where the case would have to be filed (venue), the stress that litigation places upon the family, the willingness of family members to participate in the case, the costs to prepare the case relative to the total damages, recent jury verdicts in your county, availability of insurance and the collectability of any verdict and a host of other factors.

Approximately 1.4 million people in the United States suffer a Traumatic Brain Injury (TBI) every year. TBI can result anytime that a blow to the head is sustained. Recently the news of Tony-winning actress Natasha Richardson’s unfortunate skiing accident has drawn attention to TBI. So, for those who are wondering whether they or someone close to them has suffered a TBI as a result of a recent motor vehicle collision, fall or other injury, I have compiled some information on TBI’s, including how to recognize the symptoms.

The definition of TBI can vary according to the situation and which doctor one asks. In a report to Congress, the Centers for Disease Control and Prevention, National Center for Injury Prevention and Control defined TBI as an injury to the head with one or more of the following conditions attributed to the head injury: decreased level of consciousness (were you knocked out due to the blow to the head?), amnesia (this can be short or long-term loss of memory), skull fracture, objective neurological or neuropsychological abnormality (for example, decreased reaction time, loss of motor skills, increased headaches or seizures) , or diagnosed intracranial lesion (which are usually identified by CT or MRI scans) .¹ What does all of that mean? For someone worried about whether they have suffered a TBI, the rule of thumb should be better safe than sorry. If you or someone you know has suffered an injury and is not "acting like themselves," then there is a possibility of TBI, and a medical professional should be consulted.

The two most common causes of TBI are falls (28%) and motor vehicle collisions (20%).² Any of the symptoms listed above can result from any blow to the head, and the severity of the injury may range from "mild" to "severe."

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 1.  Guidelines for Surveillance of Central Nervous System Injury, CDC, 1995.

2.  www.biausa.org/aboutbi.htm, last checked 3/30/2009.

As a corporate sponsor, Law Offices of Gary Green not only financially supports Mothers Against Drunk Driving (MADD), but it also physically supports the organization as well. On May 2, 2009, staff members in our Austin, Texas, office will participate in the Walk Like MADD 5K walk to help save lives on the road.

MADD’s signature event raises funds to provide free support to survivors of drunk driving collisions, as well as promote awareness of the importance of safety on our roadways. Walk Like MADD will be held in 32 cities across the country. The event’s goal for Austin, Texas, is to raise at least $57,000 this year. Law Offices of Gary Green is helping to make that goal a reality.

For over 25 years, MADD has saved countless lives and grown to be the largest victim-services organization in the world. Law Offices of Gary Green joined the cause over fifteen years ago and has donated over $66,450.00 to the organization to date. For every victim of a drunk driving collision that we represent, we make a financial donation to MADD. Law Offices of Gary Green also closely follows the criminal case of the drunk driver, helping insure that justice is followed.

If you would like to join our team on May 2 or make a gift on our behalf, please click here.

If you would like to join our team on May 2 or make a gift on our behalf, please use the following link:

The Legal Effect of Writing "Paid in Full" on a Check

Writing "paid in full"on a check will not necessarily discharge one from the debt. It is sometimes shown on national news media and television judge shows that if one writes "paid in full" on a check that person has established accord and satisfaction that binds the endorser and prevents the collection of any remaining amount owed upon the original agreement. If that was always true no one would owe money and no one would lend it!

One can settle debts for a lower amount than the full amount due, but that is only through mutual agreement between the two parties. The debtor cannot unilaterally make the decision to decrease the amount owed to the creditor. If you feel overwhelmed with debt you should call your creditors, immediately. A creditor may be willing to work out a payment plan or agree to accept a lower amount. A creditor is sometimes eager to get back some of the money rather than get nothing at all.

There is a point of law in the Uniform Commercial Code, section 3-311 that states that a debt can be discharged with a check that states "paid in full" if there is a dispute about the debt, the debtor (the person that owes money) is in good faith (honesty and fair commercial standards) and the creditor accepts payment. If the creditor accepts and deposits the check, the creditor and debtor entered into a transaction known as "accord and satisfaction." In order for the debtor to prove that there was accord and satisfaction, the debtor must show that the parties were in the process of offer and acceptance ("accord"), that this accord had been carried out ("a satisfaction") which is supported by legal consideration (something of value). This means that one cannot get out of a debt by trying to trick a creditor into taking a smaller payment.

Motor Vehicle Collision - More than You Ever wanted To Know About Insurance

If you have ever been in a motor vehicle collision you know that sorting through the various insurance coverages and understanding which insurer is responsible for what bills can be confusing. The coverage on your vehicle and that of the other vehicle involved in the wreck is broken down into as many as five different components and there may be a different adjuster assigned by the insurance company for each of these components coverages.

The available components of a motor vehicle policy are as follows:

Liability - if it is determined that you are at fault this pays the injured party for their medical bills, lost wages and pain and suffering, and damage to their property caused by you.

Collision - this component of your policy will reimburse you for any property damage to your vehicle from the motor vehicle collision less whatever deductible the policy contains.

Personal Injury Protection - Also known as PIP or med pay, this provides medical and hospital benefits, income disability, and accidental death benefits regardless of fault to you, your family living in your household and any passengers in your vehicle. This coverage is valuable because even if the other party is clearly at fault it may be some time before their insurer begins to pay for the bills you incur. This coverage will begin to pay very quickly.

Uninsured Motorist Coverage - (UM) This coverage is much as it sounds. If the other party is at fault in the wreck but they do not have the required liability insurance to reimburse you for your injuries, this coverage will do so.

Underinsured Motorist Coverage - (UIM) Again this coverage mirrors its name. If the other party is at fault and your injuries exceed the amount of their liability insurance this coverage from your policy then kicks in to pick up the slack.

I have given you simple definitions of the basic types of coverage under motor vehicle insurance policy. There are myriad of interactions between these policies, the policies the other driver has in effect and your health insurance policy. For example although your PIP policy may pay some or all of your bills immediately, it may seek repayment (known as subrogation) from the liability insurance of the other party if they are at fault. The same goes for your health insurer.

If you are a passenger in a friend’s vehicle and are injured in a wreck you may be covered under their PIP, but you may also be covered under your own - who pays? I will explain some of these interactions in future posts.

How do you stand yourself after representing someone in a criminal trial you know is guilty?