The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.
Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.
Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.
HIPAA also applies to mental health and substance abuse treatment records. If such records are sought by an attorney not representing the patient, the consent must be accompanied by a “subpoena duces tecum” because a consent does not necessarily compel release. To obtain psychotherapy notes, an attorney should obtain both a consent for the release of mental health records as well as one specific to the psychotherapy notes.
Some of the damages that a victim can recover are pain/suffering, medical bills, compensatory, and loss of consortium. Pain and suffering damages include compensation for physical pain as well as emotional distress. Medical bills may include past and future medical care or rehabilitation. Compensatory damages seek to restore the victim financially, physically, and emotionally to his/her status prior to the accident. Loss of consortium are the damages that a spouse may seek when the victim’s injuries prevent the victim from being the companion he/she once was.
Mr. Berniard’s lecture summarized personal injury legislative considerations, subrogation, expert testimony and trial procedure for his fellow attorneys. While the purpose of the lecture was to educate his peers, those that have been injured in an accident can also speak to Mr. Berniard about their options.