Weight Gain After An Injury

Weight Gain After An InjuryAs if suffering an injury as a result of someone else’s negligence wasn’t bad enough, many plaintiffs also find themselves gaining weight due to restrictions on their activities, depression, or both. Statistically, two thirds of the U.S. population is already overweight, so the odds are good that most of them were already struggling with this issue prior to their accidents.

Unfortunately, we receive little to no education about nutrition or exercise growing up, so we feel powerless to deal with the problem. Combine this with conflicting information from various diet programs and books, along with ridiculous claims from manufacturers of exercise equipment and weight loss supplements, and it’s no wonder that most people have no clue as to how to lose weight and keep it off. While the subject of weight loss is “off topic” for this website, as it really can’t be classified as legal information, it is keeping with the spirit of trying to help my readers, and it is of particular interest to me personally (for good reason).

I Used to Be Fat

Yes, I’ll admit it. I used to be fat. I was a fat kid growing up. I lost a lot weight towards the end of high school, then regained some during college, lost it again, then started gaining again during law school and thereafter, until by March of 2008, I weighed over 220 pounds (and it was not muscle). I had no excuses. I wasn’t disabled. I didn’t have a medical condition. I just ate poorly and never exercised.

Finally fed up (see what I did there?) with being fat and out of shape, I turned to the internet for help and I got extremely lucky. I stumbled across the e-book Burn the Fat, Feed the Muscle after reading some glowing reviews and I bought it. The book is huge (over 300 pages), but none of it is filler. What surprised me the most about it was that it primarily focused on nutrition (you’d think from the muscle men on the cover that it was more about weight lifting, but it’s really not). I learned more about what to eat (and how much of it) from this book than I had learned in my entire life.

To this day I haven’t read a more simple but comprehensive explanation of how the amount of calories and proportion of proteins, fats and carbs you eat affects your weight. The best thing about the book is that it allows you to be flexible. You eat normal grocery store food (not pre-packaged meals or shakes), and you don’t stop eating fats or carbs (it turns out that you actually need them). The book teaches you how to make better food choices, how to read food labels, and how to calculate the right amount of food you should eat to lose weight.

I Lost 70 Pounds In 9 Months and Kept It Off

Using this book, I lost 70 pounds in 9 months (which I’ve kept off to this day, 4 years later as of this writing). While the book advocates exercise in addition to eating healthy, I lost the first 40 pounds before I even started exercising. Just following the book’s nutritional information can yield powerful results (of course, it’s even more effective if you exercise as well). This is the main reason that I suggest buying this book to anyone who may have restrictions preventing certain types of exercise, such as someone who’s suffered an injury. You can tailor the plan to your activity level.

The reason I find this program to be successful in keeping the weight off is because it’s not one of those temporary fad diets that you can only tolerate for a short period of time. You make your own menu using the nutritional guidance in the book, so you can find a wide variety of foods you like. Therefore, you’ll never get sick of it. I’m not going to lie and say you can eat whatever you want — some foods are just plain awful from a nutritional standpoint. I will say that this is a nutritional plan that anyone can live with and be happy, because of its flexibility.

A Warning About the Burn the Fat Website

For anyone who takes my advice and heads over to the Burn the Fat, Feed the Muscle website, prepare for way too much sales copy, too many testimonials and just too many shiny objects. I’m saying it would be kind to call the website busy. Just skip to the bottom and buy the basic Burn the Fat system. There’s no need for the “deluxe edition” or any other bells and whistles the author may try to sell you along with the book. The standard Burn the Fat, Feed the Muscle e-book alone has all the information you need.

Why Should You Believe Me?

I’m hoping that, through my legal information articles and my answers to your questions in the comments section, I’ve earned a certain amount of your trust as someone who shoots straight. I would not throw away that goodwill promoting this book if I hadn’t bought it, read it, applied it and benefited from it myself. If you’ve struggled with your weight, either due to injury from an accident, or, like me, through general unhealthy living, following the Burn the Fat program will work for you — yes, women, too. You don’t have to have an iron will to follow this program. I didn’t when I started it. It will take effort and some sacrifice, but the payoff is more than worth it.

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15 Responses to Weight Gain After An Injury

  1. I stumbled across your site testing a long tail key word. Some of what you say here is decent information. What concerns me is that you do not identify yourself. Who are you? why do you hide yourself? I take it you make money on this side by allowing adds .

    • fl_litig8r says:

      I don’t put my name on the site for one simple reason. I currently get several thousand (double-digit) visitors per month to this site and I have a separate site for my law practice which has a toll-free number. I don’t want people seeing me on this website, ignoring its name, and calling me through my firm phone number with their legal questions. I already get calls from people outside my state looking for advice — i.e., not potential clients — from my firm website’s blog, which gets less than 1/50th of the traffic this site gets. I can’t imagine how many calls I’d get from this site. So, there’s no nefarious reason why I don’t give my name out. I’m not disbarred (never even had a complaint) or anything like that.

      From my readers’ feedback, I’d say that the information I provide is better than “decent”. I’m not writing law review articles here. My writing is geared to the target audience, so I try to avoid being overly technical while still giving a thorough discussion of the topic. I just try to my readers the practical information about how lawsuits work that so many firm website blogs lack (considering that most of them are just there for SEO purposes and to give just enough information to get people to call the firm).

      As for the ads, they’re not there because I like the look of them. 😉

      • Ema says:

        Thank you for your detailed answer. I think your website is very helpful. I recently started a paralegal position for a personal injury attorney, and I have found your website informative, easy to read and follow, but more importantly, consistent with everything I need in my job. Thank you for a job well done!

  2. Dante says:

    I was in a motor vehicle accident. A younger driver rear-ended me. My vehicle was totaled. Their is no question to the whole who is at fault as the police officers involved confirmed my account of the accident. I had my seat belt on and was at a dead stop with my directional on. The policy limits for the driver that caused the accident is 100/250k. I have 250/500 on two vehicles. I live in a no fault state up north. My insurance company compensated me for the car. I was recently down sized from my employer after 15 years. When I got in the accident I was also on unemployment.

    My injuries include my shoulder,neck and knee. Both the shoulder and the knee have pre existing injuries. Injuries that happened decades ago. I had know problems with these body parts prior to the accident. The knee since the accident has undergone a series of cortisone injections. I did have an ACL surgery on this knee a decade ago, but post op and after full recovery have had no medical treatment or issue with it other than normal gestation. My shoulder was dislocated decades ago and is documented as such in medical records prior to the accident. I never had any treatment or issues on the shoulder and was able to get on with my life and lifestyle with some minimal restrictions. Just learned to live with it. Now comes the accident which happened 4 months ago. My routine of working out 4 plus times of week on an elliptical for cardio has stopped.

    The knee swelling and requiring ice which never happened prior to the accident. So my working out has now become an issue. I have gained a few lbs. Just cant burn it at in my current condition. I am seeing a Pt for my shoulder and neck. The tension and weakness in that area according to them is very bad. The orthopedic Dr. recommended surgery on my shoulder. I asked if there was any other route hence the PT therapy.

    The Ortho guy on my knee wants to do an Arthroscopic procedure.
    The Mri is showing a meniscus tear in a place that I did not have before accident. I have seen a chiropractor for some treatment on my neck and am having a new MRi on my shoulder.

    My insurance cost so far with er and MRI fees is almost at 8k.

    My health insurance has a lien on . The PiP on my insurance has been exhausted. Over 2 k in bills. In regard to the Bi policy of the person who hit me(is that the third party) or is my insurance company the third party.

    Do understand this correctly that because I have my own health insurance my pip is only 2k but in reality there is 8k? If so how do I get my insurance company to us that for treatment and or med bills?

    Also I am getting estimates of surgery costs and treatment costs well over 30k. Do I file claims against my insurance company on my UI policy or do I make a claim just against the drivers policy. That company has contacted me and wants to discuss my claim. Which is interesting to me as I have not had any communication regarding filing a claim for damages?

    Also should I ask for all the pip billing detail from my insurance company or does the person company who hit me already have a communication going on with my company. Considering they are both liable for a damage claim?

    What I want is to accomplish financial security related to the health care cost involved the procedural risks and the recovery time needed for a successful outcome. Considering this what is the formula to come up with a number for settlement. Assuming away of course. Also I already signed a medical record release for my insurance company and now the other party wants me to sign one. Do they the insurance company’s not have some reciprocity with each other? Or do I need to sign the med release for them as well?

    I can clearly document that I was asymptomatic prior to the accident with the pre existing conditions. I just want to get back to the level of health I was at prior to this accident.

    Thank you in advance for sharing your knowledge god sir. You are a prince and obviously not the Machiavellian kind!

    • fl_litig8r says:

      I’ll try to answer your questions in the order asked.

      “In regard to the Bi policy of the person who hit me(is that the third party) or is my insurance company the third party.”

      The other driver is the “third party”. His insurance is third party insurance. Your own insurance is considered “first party” coverage, even though your UM covers a third party’s liability (if his own limits are inadequate).

      “Do understand this correctly that because I have my own health insurance my pip is only 2k but in reality there is 8k? If so how do I get my insurance company to us that for treatment and or med bills?”

      I think you left some words out of these sentences. I’m really not sure what you’re asking, so I’ll just take a stab at explaining how PIP & health insurance work. Your PIP is primary coverage, meaning it pays first for the accident-related injuries. Normally, PIP insurance has no right to reimbursement from your settlement, but the other driver gets a set-off as to any damages paid by PIP (he doesn’t have to pay you for the damages PIP paid for). After your PIP coverage is exhausted, you should submit your medical bills to your health insurer, who, in most cases, will be entitled to reimbursement from your settlement (but the defendant gets no set off for these bills). Your health insurer may require proof that you have no PIP coverage left. You can ask your insurer for a “PIP log” (a listing of all payments made) to prove this.

      “Do I file claims against my insurance company on my UI policy or do I make a claim just against the drivers policy. ”

      You submit the bills to your health insurance, because you want them to be paid in a timely manner (and your insurer will likely be able to reduce these bills through contractual adjustments). A BI or UM carrier won’t pay bills as they accrue. They want to settle the claim all at once. Normally it takes so long to determine the value of your case, that your bills will go into collections before you get paid by a liability insurer.

      “That company has contacted me and wants to discuss my claim. Which is interesting to me as I have not had any communication regarding filing a claim for damages?”

      I suggest you read my articles on settling your own lawsuit. The driver that hit you probably told his insurer about the accident, and they got your information from police reports.

      “Also should I ask for all the pip billing detail from my insurance company or does the person company who hit me already have a communication going on with my company. Considering they are both liable for a damage claim?”

      You should get your own PIP log. I doubt that your insurer has given this information to the other insurer, due to medical privacy issues.

      “Considering this what is the formula to come up with a number for settlement.”

      See this article, as well as my articles on settling your own case.

      “Also I already signed a medical record release for my insurance company and now the other party wants me to sign one. Do they the insurance company’s not have some reciprocity with each other? Or do I need to sign the med release for them as well?”

      No, they don’t share your medical information, due to privacy laws. As to whether you should give the other insurer a medical release, see my articles on settling your own case.

  3. MSA person says:

    I want to apologize upfront for my question being only remotely related to this topic…It was the closest discussion topic I could find! Anyway, my personal injury tort case was recently settled and I have a few MSA questions that my attorney can’t answer(imagine that…now that the case is over). I am on ssdi and was required to set aside money to protect medicare’s interest. The situation is 1/3 of the setaside funds were put in an annuity by wc and the other 2/3’s was put in a savings account by myself because I did a self administer arrangement. I have been slowly losing weight in an attempt to possibly return to work and drop ssdi. If I am able to do so, will I still have to answer to anyone on how I allocate my self administered MSA? What will happen with the MSA set up by wc? Finally, if I am able to spend the money if I please, will I have to report it on my taxes as “taxable income”? Please advise…I have searched for answers everywhere! I also want to thank you once again for answering questions I had during the lawsuit…your site is very comforting to those who are stressing through tough times!

    • fl_litig8r says:

      I’m afraid that I have nothing but bad news. Prior to August 25, 2008, Medicare had an established procedure for revising a Medicare Set Aside (MSA) due to a substantial change in circumstances (one which would have reduced the need for the funds by 25% or more, such as an improvement in health or possibly loss of Medicare entitlement with no expectation that it would be resumed any time in the near future). This procedure was created in a July 11, 2005 memorandum and was revoked without substantial explanation by this August 25, 2008 memorandum (pdf warning). A discussion of the former procedure and its revocation can be found here. A comprehensive MSA FAQ can be found here, which includes a specific question about whether you can spend MSA money if you lose Medicare entitlement and don’t expect to regain it in the near future (apparently you can’t — See Q57 on that page).

      It appears that now, once you create an MSA, you’re stuck with spending it only on comp-injury-related medical expenses until it is exhausted, regardless of any change in circumstances which reduce your medical needs or change your Medicare entitlement. If you spend the money on anything else, Medicare will refuse to pay for any comp-injury-related medical bills in the future.

      As far as taxes go, that is really outside my area of expertise. While generally, only the interest on a MSA is taxable, I don’t know the potential tax consequences of using MSA money for anything other than comp-injury-related medical treatment. This isn’t something I feel comfortable guessing about, and I wasn’t able to find a definitive answer doing my own research, due to the topic of using MSA money for other than intended purposes not being well covered in general, much less from a tax standpoint.

      • MSA person says:

        Thank you for that…but the most important question that I have is what is the worst that can happen to me if I spend the money that I am self directing? I understand that losing benefits altogether is possible, but if I did go back to work that would be a moot point anyway! To put it another way, let’s take medicare and ssdi benefits out of the equation…Can anyone come after me for spending the money that I am self directing?

        • fl_litig8r says:

          The only penalty of which I am aware is Medicare’s refusal to pay any comp-injury-related expenses in the future. This wouldn’t necessarily be a moot point if you go back to work. Say your WC claim was for a back injury. You return to work and get new health insurance, which pays all your medical bills until you retire, including any back treatments. At age 67, you are on Medicare and need treatment for your back. Is it related to that old WC injury? What if Medicare assumes that it is? Because you didn’t exhaust your MSA on medical treatment for your back (and account for it annually), Medicare has flagged your file for all back-related treatments. Do you want to do battle with Medicare every time you need treatment for your back after you retire?

          If you had a more discrete injury (hand, arm, or leg) this would be less risky. But if you have an injury to an area of the body for which most older people ultimately need treatment (like your back or neck), you run the risk of having to pay for all of that out of pocket due to Medicare denying your claims.

          So, as far as I know (again, I’m no MSA expert), no one will “come after you” for misusing MSA funds. Medicare will just refuse to pay for future related care.

  4. Andibeth says:

    Thanks for this great website! I apologize in advance for the length of this. I am in such a quandary; I don’t know whom to turn to! In 2009, my husband and I were hit from behind while waiting to make a left turn onto a side road. The 21 year-old did not contest hitting us, so his insurance company paid for my car repair ($2000).

    Went to the ER; no broken bones, so even though I was in pain, I went to work two days after (which requires sitting in front of a computer all day). I lasted about 4 hours, and my manager told me to go home. I called a chiropractor I had last seen in 2004 after a head-on collision in 1997. He sent me for cervical, thoracic & lumbar MRI’s, and said this accident exacerbated the herniated discs in my lumbar and cervical spine from the 1997 MVA, and caused new bulging discs in my thoracic spine. I went on disability for 6 months. After going back part-time, and then full-time for 10 months, I was still in so much pain, my work suffered, and I got ‘laid off’ w/ a small severance package, including COBRA. (I think they thought I’d sue them if they ‘fired’ me for being disabled).

    I already had a lawyer through Hyatt Legal (a company benefit), who we previously utilized to draw up our wills, so I had retained his services (stupid me) for my PI lawsuit right after the accident happened. My chiropractor also volunteered his services as an expert witness in my suit (he would charge $2k), and also suggested I apply for SSDI, since I could no longer work. Then he sent me to a Neurologist, who did an EMG, and said I had Thoracic Outlet Syndrome and Fibromyalgia, but I didn’t believe there was such a thing as FM. He gave me trigger point injections for a few visits and prescriptions for Oxycontin. (After 3 months of taking that, I weaned myself off – it made me loopy!) I continued going to the Chiropractor, but the pains returned as soon as I got into the parking lot….

    A year after the accident, I tried to do a little gardening. Big mistake! My legs gave way in the shower and I smashed my shoulder on the side of the tub. My husband took me to an orthopedic surgeon, who said I sprained my rotator cuff, and gave me a script for Physical Therapy. He also noticed some abnormalities in my neck and back, so he sent me to see spine specialist. The new doctor examined me and gave me Rx’s for Cymbalta and Neurontin, and also sent me for PT. So I started going to PT five days a week. After experiencing the difference between therapeutic massage and chiropractic, I never went back to my chiropractor again.

    Even though the PT helped, I still had these terrible pains all over my body and bad headaches, so my GP suggested I go to a Rheumatologist, where they confirmed the FM (I believed it this time), gave me different meds, and filled out the RFC form for SSDI (none of the other docs could spare the time). I got approved 6 months later.

    Four years later, the pains are worse, and I have severe anxiety and depression for which I take Xanax (it also helps me fall asleep). We rarely go out socially, we never go on vacations anymore, and I haven’t been to a NY Giants game in 4 years (we have season tickets). I use to have hobbies like gardening, cooking, photography… I was an avid reader, but since the accident, I’d read one chapter, and the next time I pick up the book, I can’t remember what I read previously! So now I stick to magazines. I use to power walk and work out. Now I’ve gained 95 lbs. in 4 years. I can’t cook or clean…I feel so guilty that my poor husband works full time, cleans the house, does the laundry, etc. He is a saint! And we haven’t made love since the accident – my pain is so bad. Most days, I wake up with half a brain. I’m told that is called ‘Fibro-fog’. I can’t find simple words – I use to be able to multi-task – I could do 4 things at once! Now I’m lucky if I can complete one task in a day…. (i.e. I’ve been writing this email for 4 weeks already!)

    So, that’s most of the background. Here’s the problem – I think I have a good case, but my lawyer is in way over his head! 1.) The Defendant has a top law firm working for him. I got the shlumpy guy in a wrinkled suit whose paralegal knows more about my case than he does! (We thought he might be like Paul Newman’s character in “The Verdict”, but we’ve given him 4 years and no such luck!) 2.) He never prepped me for my deposition – not even: “Don’t answer if you don’t understand the question” or “keep your answers short” or “remain calm’, etc. Nada! (My husband researched that stuff online the night before, after we called the lawyer about coming in early for prep, and he said no!!) 3.) During the 4-hour deposition, my lawyer wasn’t listening while the defense attorney asked me irrelevant questions, berated me (in a nice way) or tried to confuse me and twist my words. Nor did he check to see that I was in a great deal of pain from sitting, and maybe I needed to take a break (I didn’t know I was allowed to ask for one myself…). No, during my deposition, my lawyer was reading case files for his other clients (I glanced over and saw the names on the files – my file was on the floor behind him). 4.) When asked about the extent of my injuries, I talked about my cervical, lumbar, and thoracic pain. The defense lawyer said, “The only body part in the complaint is your lumbar spine.” My lawyer looked clueless, so he excused us, and once out of the conference room, I asked him why he didn’t include the other injuries in my complaint. He mumbled something, and I said, “I don’t understand! You have all the MRI results and doctor’s notes – including cervical and thoracic!” (This was 18 mos. after the accident!) 5.) There was a 3rd car involved – we think #2 backed into #3 after he hit us, but during his deposition, Driver #2 said he hit us twice – a light tap the first time, and then he lied and said he was slammed into us by Driver #3. So now that #2 involved #3, my lawyer said we have to sue #3, even though I testified under oath that we were only hit once. So am I going to have to commit perjury when we go to trial?
    6.) I had been getting all the doctors’ notes and tests all along and giving them to my lawyer so he could update my file. The FM is a big deal, but we never talked about it with my lawyer. We went to see him last week and my husband brought a DVD he purchased online from the Mayo clinic about FM because he thought it might help with the case. Good thing – not only did my lawyer not know what FM was, HE COULDN’T EVEN PRONOUNCE IT! He said this is the first he heard about it. I said it’s a diagnosis in the notes of two of my doctors! (Lawyers don’t read doctor’s notes?) So he brings in 4 accordion files and tells me to look through all the files to find where FM is mentioned. I showed him. He asked if it was mentioned in the deposition from 2010, and I said it hadn’t been diagnosed yet. (Well, the Neurologist diagnosed it in 2009, but he only put the Thoracic Outlet Syndrome & EMG results in his notes because, I didn’t believe in FM – I sure do now).

    So I think I have a lot of reasons why I should fire my lawyer – the only problem is, I’m not sure if another lawyer will pick up the case this far in. And will I have to pay the incompetent lawyer, also, and if so, how much? I was referred to another law firm, but the lawyer I spoke to didn’t seem too interested (maybe he thought it wouldn’t be worth his firm’s time – even though all the leg work was already done). He also mentioned something about subrogation and Erisa? My lawyer never mentioned either of these words to me ever. I do remember receiving questionnaires from companies representing my health insurance provider, asking if certain visits were due to workmen’s comp or a previous accident currently being litigated. The paralegal said to just send them all to her, and she’ll take care of it. My fibro-fogged brain doesn’t comprehend any of this….I’m going for my 5th hospital pain-block injection on Monday, and my meds are being changed to Savella (which is what the Neurologist prescribed for my FM in 2009, but I refused to take it because I didn’t believe FM was a real diagnosis. What a jerk I was!

    So what do you think I should do? I know you’re in FL and I’m in NY, so the laws may be different, but any advice would be greatly appreciated! Thank you!

    • fl_litig8r says:

      There’s no way to sugar-coat this. Your case is a mess and your best option — finding another lawyer — may not be possible at this point. Any personal injury lawyer who has never heard of fibromyalgia is not experienced enough to take your case (or most other PI cases, for that matter, because FM is a pretty common condition in the the PI world). The fact that your lawyer didn’t meet with you before your deposition to prepare you is inexcusable in my mind — as is his reading other case files during your deposition.

      Your case was fairly complicated to begin with due to the prior accident, preexisting conditions and FM diagnosis (which many doctors don’t even believe in). Getting a fair settlement in such a case, given liability insurers’ universal skepticism of all FM claims, would really require a seasoned personal injury lawyer — not some guy who does wills and dabbles in PI on the side. Many lawyers would reject such a case due to the fact that there are many other easier cases out there which would make them the same money for far less work. Now that an inexperienced lawyer has already likely botched the early part of the case (including the Complaint, apparently), finding another lawyer willing to clean up this mess may not be possible. That’s not to say you shouldn’t try. Before firing your current lawyer, you should really find another lawyer willing to take the case, as having a bad lawyer is usually better than having none at all.

      You are right to be concerned about whether you would have to pay your current lawyer a fee for the work he’s done so far. While I believe that the things you mentioned would constitute sufficient good cause to fire him without having to pay him, I can’t say with 100% certainty that a court would agree if he decided to fight the issue. If you do find another lawyer willing to take the case, it would be best if you could convince your current lawyer to voluntarily withdraw (when a lawyer withdraws on his own — and not due to bad conduct by the client — he can’t claim a fee). I would suggest trying an amicable approach to this first, saying that it’s nothing personal but you think he’s over his head with your case due to him never having heard of fibromyalgia. If that doesn’t work, suggesting a possible malpractice claim may be prudent, though legal malpractice claims are nearly impossible to win in most cases.

      If you can’t find another lawyer to take your case, I wouldn’t suggest firing your current one. You don’t want to be stuck in active litigation with no lawyer at all. The court will give you a certain amount of time to find a new lawyer in most cases, but if your efforts failed before you fired him, you’ll probably wind up having to represent yourself. In that case, expect to be beaten soundly by the other side’s lawyer who will likely hit you with a flood of discovery and procedural motions until you screw up enough to justify the court dismissing your case.

      For that reason, if you’re stuck with your current lawyer for the long haul, the best you can hope for is a not-too-awful settlement. With respect to subrogation issues, I suggest you read this article about health insurance subrogation (which also applies to the private disability insurance you received while temporarily off work), Medicare subrogation (I couldn’t tell if you’re receiving that yet) and medical liens from letters of protection (I’m not sure whether you have received any treatment pursuant to one, but I include this to be thorough). SSDI has no right of subrogation. You need to take this information into account when considering a settlement amount — if you settle for an amount which gets you less than the liens you owe, after attorney’s fees and costs are deducted, you could wind up with nothing (in which case you might as well just drop the suit to see that your lawyer doesn’t get paid, either).

      Another thing to look at before settling is your attorney’s costs: for most lawyers, this is handled professionally and is usually not a problem. With the one you describe, I’d scrutinize it thoroughly. Note that costs, like your liens are deducted from your share of the settlement, after attorney’s fees are deducted. To give you an example of how this works, for a $30,000.00 settlement with a 40% fee, $2,000.00 in costs, and $8,000.00 in medical/health insurance liens here’s how it would work:

      $30,0000.00 (gross settlement) – $12,000.00 (40% fee) – $2,000.00 (costs) – $8,000.00 (medical liens) = $8,000.00 (net to client).

      I’m sorry that I don’t sound more optimistic about your case or your chances of finding another lawyer. I really hope that I’m wrong about the latter, for your sake. With the way you describe your current lawyer and how your case has been handled thusfar, I think the best you can hope for is a bad settlement that gets you some money — this is why you need to have the lawyer explicitly spell out his fees, costs and your liens before you agree to a settlement amount. Also, make sure your lawyer takes care of those liens. Inexperienced lawyers sometimes don’t know that they have to pay them (or don’t care), resulting in their clients being pursued by collection agents of their health insurers (and sometimes sued) down the road.

      I really wish you luck.

  5. Andibeth says:

    Thanks for your prompt reply. I really appreciate you taking the time to answer. Through Hyatt Legal, my lawyer’s fee is only 25% – maybe that’s why he’s not working so hard on this, but, 25% of nothing is zero… It looks like we’re going to have to stay with him – I won’t be able to find anyone willing to take this on. Sigh!

    As far as the settlement information, I guess I forgot to mention that the case is already on the trial calender for November (?) and they’ll be picking a jury soon. Although, if he adds the Fibromyalgia information to the Complaint – that should buy me more time, shouldn’t it? I know the other Parties just received the new notes because my husband’s lawyer keeps him apprised of everything. The Second Party defendant is suing my husband (he was driving my car) because my lawyer added him to the suit when Dexter the Texter, as we affectionately call him, lied during his deposition about being “hit into us”. My insurance company is defending my husband – I wish his lawyer was my lawyer, but they can’t even speak top me because I’m the Plaintiff! (The only time I get a note from my lawyer is when he wants me to reimburse him for a filing fee or pay for the copies of the deposition notes, or other expenses.)

    So my lawyer keeps insisting I persuade one of my doctors to be my Expert Witness; really though, if you were an MD, would you want to take time out of your day (and money) for a trial? If we lose, I would have to pay him out of pocket and we’re barely holding on here as it is. Someone I met at PT, who is going through the same thing as me, said that his lawyer has his own list of Expert Witnesses – why doesn’t mine? This is such a mess! What a waste of 4 years!

    One more question, if you don’t mind – the Defense’s Expert Witness is the same “orthopedic surgeon” who did the IME a few months after the accident, to dismiss my no-fault claim for orthopedic (I wasn’t even seeing an orthopedist at that time). Do you think they contacted him after they received his IME report in Discovery? Is that even kosher? To use the same doctor from no-fault? My lawyer never even brought it up. He probably doesn’t even read the reports they send him.

    When Dr.IME examined me both times, it was a sham. He did 2-3 tests, but his report claimed he performed about 8. I know what the the tests are (Wright’s, Spurling’s, etc.) and he did not do them. Also: my orthopedist has different (opposite) findings in his notes (and he isn’t being paid to lie), but he won’t testify – too busy. Their “expert” has no practice – he does this “dog and pony show” for a living, utilizes different locations, gyms, PT practices or other medical offices after hours. His name magically appears on the letterhead of a medical practice with about 10 other doctors, but he doesn’t practice there. I called and asked if I could make an app’t….

    How would I go about finding an Expert Witness? If he/she compared the diagnostic tests and medical reports from my prior accidents to the ones from this accident…I think we might have a shot. But how do I find one? Or is my lawyer suppose to find one?

    Sorry for taking up so much of your time. I really do appreciate all your help. You are outstanding! I’ve been reading your site for months – sorry I didn’t find it 3 years ago. Maybe then this case would have had a chance. You are one in a million! Thanks again!

    • fl_litig8r says:

      Your lawyer sounds like a real treat. Even though he’s a “discount” lawyer (as far as his fee), he’s making you pay the expenses as you go? While I can’t say I know how all lawyers around the country operate, every PI lawyer I know pays the expenses up front out-of-pocket and eats those costs if he doesn’t make a recovery (making the costs contingent on a recovery as well).

      With respect to your trial date, your lawyer needs to get on the stick as far as adding your FM claim. Many courts issue pre-trial orders which set cut-off dates for amending the Complaint at the time they set the matter for trial. Make sure your lawyer hasn’t already missed this window. I would imagine that the court would delay the trial if the FM claim is added, but there’s no guarantee — if the other side already has all the information it needs about the claim, it may not ask for a continuance. If it thinks your own lawyer is unprepared to go to trial, it may want to push the matter as quickly as it can.

      As far as your own expert witness is concerned, it is fairly common for plaintiffs to use their treating doctors as experts — so I can’t disagree with your lawyer on trying them first. They come across as more credible to the jury because they’ve had far more contact with you than a non-treating expert, and they don’t seem like they’re just hired guns. Even if you were to get a third-party expert, I’d really expect your doctors to testify at trial, anyway. Due to how busy doctors are, most courts will allow them to testify via deposition (you either videotape it and play it at trial, or you have someone sit in for the doctor and he and your lawyer read directly from the deposition transcript). Ask your lawyer if the court will allow the expert to testify at trial via deposition — god help you if he doesn’t know the answer to this off the top of his head. If he says no, have your husband ask his own lawyer the same question.

      I’m kind of shocked that your lawyer has put the burden on you to find your own expert. While I can see him asking you to approach your doctors first (to try to convince them to represent you before your lawyer contacts them), if it comes down to hiring a third party expert, he should do the footwork. He’s the lawyer. He has the resources and (ostensibly) the knowledge to do this. You may want to send him a letter (not hostile, just factual) expressing your concerns about him putting the burden on you to find an expert. This, of course, assumes that your treating doctors refuse.

      I don’t really see a conflict as far as your IME doctor also acting as the defendant’s expert. Although he was hired by your insurer for the IME, that was really in an adversarial capacity. He was never a treating doctor, so there’s no doctor-patient privilege issues that arise from them working with him.

  6. Andibeth says:

    Dear Yoda Lawyer,

    I’m back. Not sure if you remember me – I’m the one who was hoping my “discount” PI lawyer would turn into Paul Newman in “The Verdict”. (Or at least know how to pronounce “fibromyalgia”). Now you remember me, right?

    After several calls, I actually found another lawyer to take over my PI case. My husband’s friend referred him, and gave me his phone number. (He said Bill was his ‘friend’, but we later found out that they were just acquaintances – they ‘played golf a couple of times’).

    I called the phone number, and was surprised that Bill answered directly – no receptionist or professional greeting, just “hello”. I hesitantly introduced myself; he realized why I was taken aback, and said that this was his cellphone. I apologized and he said no problem, he was ‘just making a cup of tea’ and had plenty of time to talk to me. He listened to my tale of woe, sounded shocked and offered sympathy in all the right places. He intimated that he would take the case. I felt as if this heavy burden I had carried for so long was finally lifted off my shoulders – I actually cried. He told me not to speak to my current lawyer, John, again (which wasn’t a big deal – John never contacted me – his paralegal would call when they needed more release forms signed….). Bill said he had to be in my county the following week, and he would stop by and give me some papers to sign (i.e. change of lawyer form, form to retain him as my new lawyer, etc.) He never showed up and never called. I called him the next day, and he said one of his clients got arrested, so he had to go to the arraignment. He said he was going to look at my case file at the courthouse, and also that he knew a lawyer who worked at the law firm retained by one of the defendants, and he would speak to her (?). In the meantime, he asked me to email him a list of any prior accidents and/or lawsuits I was involved in, including two previous MVAs and a slip and fall. I did that, and then we met with him the following Saturday at an empty law office he utilized on the weekends. I had made him copies of all the diagnostic tests, as he requested, and I brought my entire file, as well, thinking he would want to make copies – he didn’t. I thought he would have the paperwork for me to sign, but he said the secretary hadn’t drawn it up yet.

    A couple of weeks later, I called him because my husband received a letter from his lawyer (my insurance co.) that there was a hearing scheduled (just for the lawyers) the following week. He said he was going to show up at the courthouse. The day after the hearing, I don’t hear from him (or John, but then again, John never notified us about anything…). I finally hear from Bill a few days later – he said John never even showed up; he sent someone in his place, so Bill gave the guy his card and asked him to have John call him ASAP. (I wonder just how many of these court proceedings John didn’t show up for.) John is a one-man law firm, except for his female paralegal, but Bill said he probably pays some other lawyer $100 to show up and ask for a continuance. He told me the case was adjourned for another two months.

    I STILL haven’t signed any paperwork for Bill, who has not returned my calls for days or weeks at a time. When he finally did get back to me, he apologized – he took his family on a two-week vacation. Then, the Nanny got deported, so he has to take care of his three kids, while his (attorney) wife worked (apparently SHE is the bread-winner). So we have to meet at his house to bring him copies of all my medicals, notes from the previous MVAs, etc. You can probably imagine how difficult it was to have a discussion – one minute he’s scolding one of the kids, the next minute one of the kids skinned a knee, etc. And still no papers drawn up for me to sign…

    Two weeks go by – no word from him. I just want to know that “legally on paper” he’s my lawyer. Finally, he emails me that his father-in-law had a heart attack and died in the hospital a week later. I feel bad that I kept leaving him voice mails. We send a condolence card. I wait a few weeks before calling him again – no call back. I leave him a voice mail – no reply. I text him, and he texts me back that now HE had a heart attack and had to have a pace-maker put in, but he should be back home next week! Wow!
    Now we’re into the New Year, and John’s paralegal has called me several times, but I did not return her calls (as per Bill). After a few weeks, they start sending me letters, asking if our phone number has changed. I notified Bill, and said, half-kidding, “His office is five minutes away, and he knows where I live!” The next day, my doorbell rings. I look out the side window, and it’s John, himself, at my door! Needless to say, I don’t answer. He came back again a few days later, on Sunday. This was the week before the next court appearance. I called Bill again, but he reassured me that he would ‘handle everything’. (John still hasn’t been legally notified that he was off the case, and I was worried that there would be negative legal ramifications for waiting so long).
    I didn’t hear anything from Bill during the next week – I was worried he might forget about the court appearance or change his mind about representing me. On the morning of the court date, my phone rings at 9am – it’s John’s paralegal, and she left a voice mail: “You need to call us immediately!” I call Bill and leave a message. Then I get an email from John’s office: “You need to contact us immediately. John is at the hearing, and your case is about to be thrown out of court”. I didn’t know what to do! I forwarded that email to Bill. He answered, “No it isn’t! John didn’t even show up! I spoke to the lawyer representing your husband, and he asked for an adjournment.”

    A few weeks go by, and finally, we were going to meet Bill at the office to sign the paperwork. He said he asked his friend, Mike (whose name IS on the office door), to be the attorney of record, so Bill would work with us, and Mike would handle the legalities and court proceedings. We were almost at the office (a 45 minute drive from our house), when I get a text from Bill: “I hope you guys didn’t leave your house yet…” So I called him, and he said the school called; he had to go pick up his daughter from the nurse’s office. I said that we could meet him at his house – a little further, but I was not going to miss a chance to sign the papers. So we went, and I signed the papers – forget about me asking him to take John’s fee of 25% – he wants 40% plus expenses. I asked him for a copy of what I signed, but he said he’d be going to ‘the office’ over the weekend and he’d have them make a copy and mail it to me. That was 2 months ago. I still don’t have a copy!
    What transpired since then: Mike had the case taken off the docket. Bill gave us the name and phone number of a Neurologist (expert witness), and told me to make an appointment, saying Mike referred me. This doctor (basically an 80 year-old retired Workman’s Comp doctor) was rude, and said he doesn’t believe in FM, and with my previous injuries, he doesn’t think I’ll win. He took 30 seconds to examine me, glanced at the MRI and EMG results I gave him, and said he’d send a letter to Mike. We let Bill know what the doctor said, and he told us to wait until Mike gets the doctor’s findings. That was at the end of February. We never spoke to Bill again. After trying to contact him for 3-4 weeks with no reply, I called Mike’s office, and told the receptionist who I was. She said Mike was in a meeting and would call me back before the end of the day. I never heard from him. A week went by – I emailed Bill one last time, asking if he had my file in his possession yet, if Mike spoke to him about the letter from the doctor, etc. I ended the email asking him if he wanted me to call Mike’s office directly. I was frantic! The next day, I get a reply, “I will be taking my wife home from the hospital tomorrow. Yes, you can call, Mike.” I’m flabbergasted! What now?!

    Mike called me back the next day. I asked him about Bill’s wife, and he told me she has lung cancer! (How much can one family take?!) So now Mike has taken over the case completely, and I don’t think he’s very happy about that. We got off on the wrong foot the first time I spoke to him. He (rudely) asked me questions I couldn’t answer, either because my Swiss-cheese brain couldn’t remember or I didn’t have the 100 pages of notes in front of me, and it made him angry because he is stuck with me now. (I doubt that he would have taken this case on from the start.) Bill still has all the medical notes and diagnostic results, so instead of Mike asking Bill for them, he wants me to make copies AGAIN and mail them to him. He contacted John about my files, but John told him that I needed to pay him first before he’ll relinquish them. (I knew this would come back to bite me in the end!) The way I look at it, I don’t owe John any more money. I gave him a $210 retainer at the beginning, paid a $95 filing fee, as well as $275 for both of our copies of my transcript. Mike told me to send a certified letter to John, stating that ‘I fired him for good cause and I am entitled to my files. I already paid the disbursements. If he doesn’t release them, I will report him to the Bar Association.’ (Or he may have said Grievance Committee – does that sound right?) I have half a brain with this “fibro-fog”, so I’m not really sure how to word the letter. Should I list the reasons why I fired him for just cause: no deposition prep, didn’t listen during my depo – was looking at other client files right at the conference table, the two most important injuries were omitted from the Complaint – even though he had all the medical test results and we discussed the injuries prior to him writing the Complaint, he refused to add Fibromyalgia to the Complaint, saying: “No, that will lead to more Discovery and add months to this case!” I also found out that the defense upped their settlement offer from $5k to $10k, and John never even approached me with the new number! Isn’t that illegal? (Mike got that info from my husband’s lawyer.) Even though we wouldn’t have settled for that low amount, it’s his legal duty to inform me of that, isn’t it? And the only reason they offered such a low settlement amount was because they saw that John was not invested in this case at the first deposition. (They saw that I was not prepared and he wasn’t even listening.)

    I’m sorry this is so long. I think the reason I am having so much trouble wording this letter to John is because Bill didn’t give me the change of attorney form to sign back in November 2013. As a result, John was still the Attorney of Record until 3-4 weeks ago (even though I was instructed not to speak to him again.) This was handled poorly by Bill, and I regret that.

    Your advice on how to word this letter would be greatly appreciated. Mike doesn’t have the time to help me, and he is my lawyer, unfortunately. I wish you were in NY, Yoda Lawyer!
    Thank you!

    • fl_litig8r says:

      Assuming your old lawyer isn’t asserting a valid retaining lien against your file — something which depends on your contract and your state ethics rules, which I will leave for your new lawyer to determine — you should make your letter short and to the point. Do not make a laundry list of everything you think he did wrong during the case, as it really isn’t necessary and would likely be counterproductive.

      I would say something along the lines of:

      Dear [ex-attorney]:

      As you know, after terminating your representation I requested that my case file be forwarded to my new attorney, [new attorney]. To date, you have failed to do this. If [new attorney] does not receive your file by [set a specific date that allows time for him to receive the letter, copy your file and deliver it to the new lawyer], I will be forced to involve the grievance committee of the state bar — not only for your failure to properly turn over my file, but for the overall lack of diligence and inadequate client communication you exhibited during your representation of me. I would rather not take such a drastic step, but seeing that my entire case is jeopardized by your refusal to forward my file to my new attorney, you are leaving me no choice.

      Sincerely,
      [Client]

      That should be enough to get your file forwarded, as it’s cheaper and less bother for him to forward the file than to face a bar complaint (even one he may dispute).

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