Litigation

If your chronic pain is the result of injury caused by, or through the action(s) of another, then you have every right to pursue litigation to protect yourself and your family.

mypainweb offers my opinion as it relates to my own experience involving a personal injury claim. I am not an attorney, paralegal or other professional within the litigation industry. I have no experience involving medical malpractice claims. I offer my experience as a guide to help you, the chronic pain patient, understand the complicated and frustrating strand litigation has in the painweb.

 

WHY LITIGATION?
We all have observed the great debate over litigation; the right to sue for injuries should be limited, or the right to sue for injuries should not be limited. Litigation, in my opinion, has been dramatized, and fantasized from both fiction, and non-fiction perspectives in books, television, movies and news media.

Litigation from a mypainweb perspective is nothing like that.  If you believe it is, then you will be surely disappointed. Litigation is a way to resolve liability caused by someone else and / or their action(s) whether accidental or intentional resulting in an injury (or injuries) and ultimately chronic pain.

My initial injury was the result of a Cybex Lat Pulldown Machine breaking as I was in the process of using it, while at a local fitness center. This resulted in a severe low back injury.
mypainweb “Timeline” will explain the incident, injuries, and subsequent necessary medical interventions.

Since I was unable to perform my job I quickly found myself on short term disability followed by long term disability.  As a result, my income was drastically reduced.  I had to file for a medical leave of absence from my employer.  My new temporary “career” was to follow doctor’s orders to the “letter”, with the hope they could fix my low back injuries, allowing a return to work, my routine and my quality of life.

Six months after my first lumbar fusion surgery, my orthopedic surgeon released me back to work on a full time basis. While still healing, still in pain, and continuing physical therapy, I was thankful to put this bad episode behind me and finally move on with my life.

Less than 1 year later, attending a meeting for my company when the chair I was sitting in broke which caused me to fall directly onto the still healing lumbar fusion site. The result was further injury along with the inability to perform my job and collect my paycheck. A leave of absence from my employer was once again required, along with being placed on Workers Compensation, in an effort to collect a small percentage of my earnings and to assist in paying my medical bills. After a short period of time it became my financial responsibility to pay 100% of my health premiums in order to keep my health insurance coverage.

My orthopedic surgeon, once again released me back to work on a full time basis, approximately six months after my second lumbar fusion surgery. However, my employer chose not fulfill their obligation to return me to my previous position. Instead, they offered me a “take it, or leave it” position in another state for less salary which would force me to relocate. I chose instead to find new employment elsewhere.

At this point I felt I had a legitimate legal claim as my injuries and continued pain were both the direct result of the first incident involving the Cybex Lat Pull Down Machine breaking while using it at the fitness center and then the subsequent broken chair incident causing me to fall onto my lumbar fusion site.

 

DO I NEED A LAWYER?

Yes. Unless you choose Small Claims Court as an option, which you can do on your own with some guidance, then you will need a lawyer. Even if the other side agrees that they are liable and at fault for causing your injury you must still prove your case. Furthermore, there is no way for you to know the value of your personal injury claim.

Small Claims Court indicates a limit of your claim on awards usually between $1000 and $5000. If you feel your claim is greater than the Small Claims Court limit, then you most likely need to utilize the regular court system.

DrugWatch.com offers assistance to individuals who feel they have been harmed by medications and surgically implanted medical devices.  Though I have not used them personally, the Patient Advocates at DrugWatch.com can help you understand your options given your specific situation.

 

WHERE DO I FIND A LAWYER?

  • Recommendations from family and / or close friends
  • Check with your local Bar Association
  • Find a legal journal publication at a local law library, or through your local Bar Association
  • Advertisements

It is most important that the attorney you hire has proven experience, and is someone you can trust. If necessary, talk to as many attorneys as it takes to insure you find the right one for you.

 

If you feel your chronic pain has been caused as a result from a medical procedure or treatment, you can contact a self-help organization such as The Medical Malpractice Center.  They can help determine the best strategy for your particular situation.

 

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Click on The Medical Malpractice Center link below to learn more:

 

The Medical Malpractice Center

 

 

What Happens After I Hire My Attorney?

Consultation: This is a first time meeting with your attorney where you will need to provide all details of your incident which includes:

  • incident details
  • any journal / notes of yours
  • hospital discharge forms, doctors, medications, medical reports
  • photographs
  • witnesses

You will most likely sign a fee agreement, and medical authorization forms allowing your attorney to obtain your medical records. Be sure you ask questions and understand the fee agreement. Feel free to negotiate what you feel is appropriate.

Be clear on other costs involved like expert witness fees, filing fees, court reporter fees, etc. Your attorney should also explain to you that, in some cases, disability insurers (short term and longterm disability, and worker’s compensation) involved with your claim may have the right to file a claim for reimbursement for benefits paid to you. Such claims may need to be resolved prior to your settlement / award. All costs should be taken out of the award first, before your attorney takes their percentage.

The litigation process is complicated and exhaustive. It includes:

Discovery:

  • Interrogatories & Request for Documents
  • Depositions
  • Independent Medical Examinations

The Trial:

  • Preparation
  • Selecting the Jury
  • Opening Statements
  • Medical Testimony
  • Damages
  • The Burden of Proof
  • Defense Case
  • Causation
  • Objections
  • Closing Argument
  • Jury Deliberation
  • Verdict
  • Appeal

It is seldom a smooth process. It takes time. Expect many bumps in the road along the way. Communication will, at times, be frustrating. Your attorney cannot answer calls from you every time you have a question. They are obligated to communicate in a timely manner and respond to reasonable requests for information. You expect competent representation and courteous treatment while they aggressively pursue your claim.

Ask for copies of every piece of paper that your attorney sends out on your behalf including insurance company letters and medical records. You need to be sure everything is accurate. You also need to keep your attorney current on all your medical intervention(s). Using mypainweb “Forms” is an easy way to accomplish this.

In the event you find yourself dissatisfied with your attorney send a strongly worded letter stating clearly you are unhappy. In most cases, you will get a proper response. If you don’t get a satisfactory response, then it may be time to hire a new attorney. Keep in mind that your previous attorney will have to send your complete “file” to your new attorney.

Most personal injury cases are resolved through settlement rather than going to trial. Most attorneys, insurance companies and Judges prefer settlement. The settlement process usually takes place when medical treatment(s) have been completed. The settlement process is where both sides make offers to settle the claim for a dollar amount. Your attorney will explain the value of your case based upon your damages (physical, psychological, financial, pain and suffering, etc.). Don’t be desperate to settle. This is about negotiating. Every effort will be made by the other side to minimize your damages while putting a bulk of the liability on you in an effort to reduce the settlement. The settlement process can take years.

I personally found the litigation strand in mypainweb to be frustrating and challenging as my chronic pain continued to worsen. Ultimately, the litigation concludes. For me, like most Personal Injury litigants, the only real decision was resolution through settlement. When my settlement was reached there was no fanfare; no parade. The feeling I had was that I just got paid a few bucks for being given a life of chronic pain and loss of quality of life.

My vision of a trial, Judge presiding over my case as my attorney scolds the defense for their negligence resulting in my injuries never came to be. There was no jury reading the verdict. There was no closure. Essentially, I was paid to just go away.

I thought it appropriate to share this with you as a way to help you further control your painweb while giving you more quality of life.

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