Join us as we sit down with personal injury attorney, Terry Hogan, to discuss the most important steps to be mindful of if you've recently been in a car accident, especially in regard to strengthening a claim to compensation.
If you would like to speak with one of our family law attorneys, please call our office at (503) 227-0200, or visit our website at https://www.landerholmlaw.com.
Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.
Steve Altishin 0:32
Hi, everyone. I'm Steve Altishin, Director of Partnerships here at Pacific Cascade Family Law, and today, I'm here here with Attorney Terry Hogan, to talk about what you should do and not do if you're injured in a car accident. Hey, Terry, can you tell us a little bit about yourself?
Terrance Lee Hogan 0:50
Certainly, Steve. I'm a 30 year injury and family law attorney, I actually spent some years, due to a poor childhood, as a police officer before I became a lawyer. So I've actually had both sides of accidents, not only investigating them, but also defending plaintiffs in personal injury actions, for injuries resulting from motor vehicle accidents and other matters. And maybe most of our audience doesn't know, but Personal Injury encompasses quite different types of causation regarding injuries--physical injuries, and emotional or mental anguish from injuries. And they can be things like pedestrian accidents in a crosswalk, they can be motor vehicle accidents, they can be truck accidents, it can be motorcycle accidents, it can be slip and fall accidents; we have different variations of different injury cases. Could even be an employee, where you're driving a vehicle for your employer and a third party causes you to have an injury, then that person, that employee, has a personal action to them that's not covered by work comp rules, and actually needs a lawyer to prosecute that type of claim forum. And the nice thing about those cases is that the work comp commission administers the medical and what have you on those cases and actually makes it easier to bring them to trial or to settlement on behalf of the client. Sort of a nutshell, I started out with some plaintiffs lawyers, right after I quit as a police officer and before I went to law school, and sort of learned the injury practice from the ground up.
Steve Altishin 2:54
Well then, this is the perfect person to talk to. So let's just kind of start with this. I've been in a car accident-- maybe I'm at an intersection or on the side of the road-- wherever I am, I'm in my car. What do I do?
Terrance Lee Hogan 3:08
Well, Steve, the first thing to do is to take stock. Make sure that you and your passengers are okay, before you do anything. Once you've taken stock of yourself and it's okay to move around inside the vehicle, at that point look out over the horizon and determine if it's safe to get out of the vehicle. Number one, your safety is the number one thing at that point, and quite often with different types of injuries from car accidents, because they're caused by metal monsters as I call them, we're not--regardless of how the boys feel, we're not immortal. And metal monsters cause physical injuries and quite often especially with car accidents, you end up with a whiplash type injury if you've been rear ended from from the back end. And the the motions that are taking place, the physics involved in that type of an accident, snap your neck and cause soft tissue injuries. And we'll get back to that in a minute. But if it's safe to step out of your vehicle, then most everybody has a smartphone these days. And smartphones are excellent because they have cameras in them. When people are in somewhat of a shock from a car accident, especially if it's a good impact, and they just aren't thinking correctly, it's amazing how much information that they miss when they're trading information with the other side. And we're in the same grain-- I will say, it has become very hard sometimes to prove causation. Not with a rear-ender, but with other types of accidents. So, since you have a smartphone, start taking some pictures, don't move the vehicle, as long as it's not a safety issue. Get out before you move the vehicles. Take pictures of everything, both vehicles as you turn from the vehicle, because you need to set up where the vehicles are at in the roadway in case there's a dispute later on. Usually there isn't, but in 30 years, I've seen some crazy excuses from defendants that have caused car accidents for why they are not liable for having caused that accident. So take pictures of everything, put everything into perspective. And since you have a smartphone, there's no cost, you don't have to go and get anything developed. And what you're doing is creating a record so that there's no dispute later on as to what actually happened in the accident. Now, before we move on, I want to just clarify that some of the rules have changed on reporting. You have 72 hours to file a report if there's $2,500 damage to any vehicle, or if a vehicle gets towed, or if there's an injury involved. So there's the rule. But if you get out of the vehicle, and you start to feel discomfort, or if you have any complaints from anybody inside your vehicle as to discomfort caused by the accident, the first thing to do is to call and report it to 911. Now, because of the pandemic and some other issues that have taken place in our society, as everybody's well aware of, they're not sending a lot of police out to investigate these types of matters, as long as there's no complaint of injury. I would suspect that the police are still going to arrive to help if there's an injury, and 911 will call an ambulance if that's necessary, but it's always good to report it, because then there's your record once again, that it happened, and that you reported it. This may help later on in the process. So most important thing, preserve the scene and call the 911 before you move your vehicle.
Steve Altishin 7:43
That makes total sense, it makes total sense. Do I need to exchange my information? Do I need to exchange my information with the guy at some point?
Terrance Lee Hogan 7:53
Oh, yes. Oh, yes. And that was my next point is that quite often, they'll look for affirmation or consent in a way that they're not responsible for the accident. And lawyers have a word for this, we call it admissions. Anything you say at the scene of an accident is an admission. You don't have to agree with anything that they say and you're better to just not say anything at all, even if they've rear ended, you just say, do you have your information available, do you have your registration, your insurance card, and what have you, and take a picture of it. And you've already taken pictures of their license plate number and those things because you took a picture of the vehicle right where it was, if it was still sitting in the roadway. If it's not, then go over to it and take a picture of the license plate. You're gonna take a picture of their registration andtheir driver's license, but it never hurts to cover all of your bases with respect to information because you're out of sorts from the accidents, not thinking clearly. And even the best people who are very bright can miss all kinds of information. That's why we're taking pictures of everything. Because then you have a record that cannot be disputed as to what they gave you and who to contact for the next step in the process. And usually most people that hit you and know that they hit you and are not trying to dispute liability for having caused the accident. But every once while you get somebody who just doesn't take responsibility for themselves and wants to put it upon you. But if you know that you didn't cause it, and you didn't ,and they rear ended you and there's what we call clear causation, then don't make any admit. Don't get into any discussions whatsoever. There's no need for it. Just get their information And at this point, if you haven't moved your car out of the roadway, then move it out of the roadway. Because if you can't, if it's inoperable, and that does happen when we're in accidents, then leave it where it is and get out of the roadway so that you're not going to be in trouble and be a hazard for the other drivers. But the other thing is, is that you want to be very careful. And in 30 years, I've seen it happen over 80% of the time, that if you have any type of a head strike, in the interior of the vehicle, that quite often it can cause a concussion, with or without a loss of consciousness. And for the people that I've talked to, and I've represented somewhere between 50 to 100 people in 30 years for head injuries caused in car accidents, all they know is that they weren't there for a few moments. And it can last as long as a minute or so where they just lose a slice of time. And because of everything happening, somebody's dropping the ball, because usually those people are transported from the scene to the hospital. And there's always a nurse that admitting and taking a history, that's very important for the injury. And for some reason, almost 80% of the time, they're not documenting that the person had a head strike, and a concussion with a loss or no loss of consciousness. And this is very critical, because the insurance company looks under every rock, and tries to dispute that you actually have the injury. And they look at those letters, they look at everything in those hospital ER reports, to see if you made a complaint of that type of an injury. And when somebody lets that fall through the cracks, it makes the case harder, and it's already hard. When I was a young lawyer, the insurance companies thought you were over serving. Well, when they changed the rules so that they didn't have that little game with with hiding the defendant, as we call it, and now it's very easy to serve. Make one attempt at serving the defendant if you have to file suit. And then if you can't find them, then you just serve the insurance company, and we're off to the races. So now they fight you, not on causation so much, but on damages, on medical treatment, and I'll get into that in a minute. But it's very important. And they love this rule over on the other side, you have a duty to mitigate your damages with respect to your injuries, and what that means in a nutshell is that the bottom line is that if the doctor tells you to do something, you have a duty to comply with that. You have a right to choose who treats you, but you have to follow their orders. And we hear orders quite a bit as lawyers, but doctors also give orders to their patients to comply with a treatment plan. And it's very critical that the injured person follows that. And sometimes we have a situation where the injured party says Well, I just lost my job, and my cash in my wallet is a little thin, and I couldn't afford the doctor. Well, that's not true for a car accident because it's mandatory in Oregon that everybody has what is called Personal Injury Protection, which is $15,000 to pay for your reasonable unnecessary medical expenses caused by the car accident. I'm getting ahead of myself a little bit. But the bottom line is that duty to mitigate your damages. Always follow the doctor's orders, and that you do have insurance to cover it because it's mandatory in Oregon and you can't waive it. In Washington, they can waive it and if you do, for the small amount of money that it costs you for that PIP coverage, it's a very poor choice to waive it when you purchase that premium for your car insurance. Anyway Steve, to get us back and in line with respect to, I think we're at the scene and we took care of the scene at that point. If they haven't been transported to the emergency room because of complaints of injury, and it can happen, even with soft tissue injuries, because they're complaining of having some kind of pain in their back or discomfort and what have you, and that's when you see people being transported on a body board. Because any complaints of cervical neck pain or radiation, they'll move to protect you as a patient in transport. And that's when they lock you down to that board and put a collar on your neck and do all of those things to protect you. Because we only have one spine, as everybody knows. And what they don't understand is that your spine has a curvature, and that when you injure your soft tissue, it flattens out the curvature of your spine. And the other thing to remember is that soft tissue is not rubber bands, and that they take some time to heal, and to come back. And the problem is, especially with injury cases, is that the only way that we have compensation is money. And quite often, and I've heard it hundreds of times, when we get done with this case, you may still have some lingering effects from those spinal injuries. And money--everybody, when we were little and we fell down and we scraped our knees, we would yell mama, mama and Mama would come running and she rubbed some Savin in your owlie to make it feel better. Well, if you take that money and rub it as sav into your owies, that's not going to make it feel any better. So money is a great compensation, but it doesn't provide you relief from any type of spinal injuries. And that's what we need. People who are injured in car accidents and other mechanisms need to understand that that's why it's so critically important that they follow the orders of the doctor in order to rehab. And the other thing is that--and I'm getting ahead of myself again-- but rehab hurts when you have spinal and soft tissue injuries. You go in and they want to wrench you around, and they want to track your range of motion because that's what it affects. That's how you turn your head up and down and do all kinds of things, and it actually hurts because the soft tissue has been injured. So the key here, you guys, is always do what the doctor tells you to do, even if it hurts, because they're trying to get you back to the point where you're going to be a term that we use throughout medical cases, "medically stable". Meaning at that point, I can move forward with your case and either file a lawsuit or enter into settlement negotiations, because we've got all the components that are necessary to drive your case to the finish line.
Steve Altishin 18:10
So Terry, this makes complete sense. And I like what you're saying and that you're really giving advice, not just for, you know, making your case better, but for making yourself better. It's a two fold reason to do these things, to go to the doctor, you don't know if you're hurt, and to be proactive because you're not only mitigating, but you're making yourself healthier. And so, like you said, we got to this place, and you and I when we first talked said, Who should I call first? I walked in your office, I said let's talk about this. Who should I talk to first after I had an accident? Insurance company, or an attorney?
Terrance Lee Hogan 18:55
Your insurance company? Well, I would tell you to talk to a lawyer before you talk to anybody, that never hurts, and because most everybody does free console on injury cases. And this goes back many, many years, because there always was a certain persona that was given to plaintiffs lawyers who represented people that were injured in car accidents and other types of accidents. They were called ambulance chasers when I was a small boy, and Soviet. But the bottom line is, talk to a lawyer first. You have an opportunity. We represent, on these cases, what is called a contingency fee agreement, meaning that in most situations with an attorney, and because our firm does family law--in a Family Law matter, we take a retainer, and then we work off the retainer, in order to complete the work that's necessary to get the client to the finish line. In an injury case, we do it on a contingency fee basis, where we take a percentage based upon the scope of the injury. And there are only two figures that we use for contingency fees. We take 1/3 up until the time that we file, in some cases, when we file a complaint, and then it goes up to 40%. And then in other types of of injury cases, it's 1/3, up until the time that we prepare for arbitration or trial, and then at that point, it kicks in to 40%. Then, in Oregon, we're required to also do an explanation to the contingency fee agreement. And that just puts it into simple English, as we call it. And when I use that term, I just want everybody to understand that when I was a young lawyer, they still put things in legalese to protect the lawyers in the profession. But we've been speaking English for at least the last 30 years. So the contingency fee agreement from the Oregon State Bar just describes, in very simple terms, what's in the actual agreement. And there's a requirement that you advise the client, whether the firm will require the client to pay their costs upfront, whether the firm will carry the costs, or whether the firm will absorb the cost as part of the action. And costs are things like filing fees with the court, costs for depositions, expert witnesses, all kinds of things. And in most firms, doing entry work will carry those costs until the end of the case. And then the cost, because the firm has provided those for the clients benefit, we'll take the costs with the clients permission off the top of whatever settlement award or judgment that we received for the injuries, and the percentage will come out of that. There are also some things that can happen. The PIP account that I talked about earlier, it's administered by that person's own insurance company. And sometimes they make poor choices. And when it comes to paying the medical bills, they're an insurance company, they don't like to pay bills if they don't have to. They want to put that money into their shareholders pocket, instead of putting it in the person who's injured. And so if we have to do a PIP dispute-- and those are very simple, you do a an arbitration, usually a three member arbitration, where we pick one, they pick an arbiter, and then two other arbiters pick the third one--and all's we have to show is that the insurance company had the document for six months and didn't pay the bill. And if that's correct, then we get attorneys fees for that, and in that situation, the firm gets the attorneys fees, because that was extra work to have to put on that hearing, above and beyond the percentage that's due for the bodily injury. And I should have explained that when I started my explanation of the contingency fee agreement, it's for the bodily injury that those percentages come out. And there's another situation with certain types of fee agreement with certain types of injuries, because they're not catastrophic injuries, more in the line of soft tissue injuries that I was talking about earlier, then the compensation for those can run somewhere between eight to $20,000. And if they're within a certain area, we have a statute in Oregon, a 20-080, is the correct statute that allows us to file a complaint. Before we file a complaint, we serve once our client is medically stable, there's that term again. And we know what the total is on the reasonable and unnecessary medical expenses. We serve the carrier, the adverse carrier, for the person who caused the accident with a copy of their complete medical treatment notes, reports, etc. And then a copy of their billing for that. And then the carrier has 30 days to either deny it or pay the demand, and the demand under that statute is $10,000. And if they don't, and we file a complaint, then we get statutory attorneys fees, something we don't normally get in an injury case. And we keep track of our time so that when we get to the end of the case, whether it's an arbitration or trial, then we get attorneys fees to go with the bodily injury. And what we do, because we don't want to be taking too many bites off the apple, we pour--and no client is going to complain about this--whatever we get for the bodily injury, we pour that attorneys fees under the 20080 into the bodily injury, and then we take our percentage out of it. So everybody's got a grin on their face, that means the lawyers get paid more, and the client gets paid more. But let me slow down again, because we got sidetracked, there's so many side issues here, that to really give the client a good discussion on everything to be aware of, we sort of go off on these little side tangents. But let me bring a realist back into the main path. After you talk to a lawyer, call your insurance company. You have a duty to report that immediately. And your insurance company's job is to help you, and they do--they actually help you, okay? Do the things that are necessary to confirm that there was an accident, open a claim, get you set up with a PIP application. And we call that a proof of loss with any insurance company. And this is a term that all insurance, that all lawyers know, but most clients don't. You have to prove to your insurance company that something happened so that they have liability, and they have to do something. And the proof of loss in an injury case is a PIP application. So because everybody does email these days and has home Wi Fi and office Wi Fi and what have you, your insurance company will send you a PIP application, if you've already talked to a lawyer and decided that you're going to go with a lawyer, then you send the PIP application to the lawyer's office, and they'll draft it up and then review it with you and sign it, because it's very important that you get a very accurate description in that document as to what actually happened at the accident scene for causation and your complaints and whether you've already treated it with any medical providers. So all of that information goes into the PIP application, and your lawyers there to help you get that all taken care of in a way that's going to be satisfactory for the client. And that's the key. So you've given a statement to your insurance company. Never always want your insurance company to lay to know exactly what happened at the accident and the lay of the land. And, and because they're there to help you and to help protect you, but they won't hire a lawyer to protect you. Okay, so at that point, your phone might start rolling off the hook, so to speak, if we still had landlines like that, but so your cell phone is beeping and going crazy and and it's the adverse character. Never, ever, ever, ever give a statement to the adverse carrier without talking to your insurance company, or getting your approval from your lawyer. The bottom line is is that without like getting myself into trouble, the insurance companies invented the word called bad faith. They will do anything to minimize your injury and your damages. And they play games and we've all got horror stories of them and I know of one where involving a brain injury. When I before I finished my undergrad after having been a policeman before I went to law school. And I worked in this lawyer's office as a as a clerk doing research and And State Farm and actually gone into a hospital room and had a clot offered nothing to the person in bed with a head injury and to try to settle the case. This used to happen a lot not as much as it once did. And this was and don't get me wrong and not to discharge State Farm But bottom line was is that was that kind of question? conduct happened a lot, 30 years ago or more, this is probably 35 years ago. And all of the insurance companies to some degree would, could have been capable of doing that sort of thing. With respect to injure people take advantage of them in the conditions that they were in, in an attempt to get them to settle the case. And as a side note, the lawyer who tried that case got $300,000, from a jury as a result of that head injury, and they had settled it for like 3000.
And it got set aside, but quite often, you never want it. Especially if you're sitting in a, in a hotel, in a hospital bed, you never want to sign anything until you know that you're medically stable, that is the key to all of this. So no statements to the adverse carrier, unless your lawyer tells you it's okay and a sitting at your elbow when you're going to give that statement. And and then at that point, depending upon what your physical condition is, then we get to this, their lawyers filled out and filed the personal injury protection, which was your proof of loss with your insurance company. But even if they haven't, you still have a duty. If you're complaining, like right after leave the scene of the accident, then, you know, everywhere in today's society, setting the pandemic aside, you've got urgent cares, you've got all kinds of if you if you can't get in to see your personal physician, you can go to urgent care, you can go to er, there's all kinds of places that will give you some immediate relief from whatever your complaints are with respect to the accident injuries. So it's very important that that as soon as you recognize the symptoms, that you do something about it in order to prove because that's what you are doing. The sad thing is in our system is is that you have the duty as the plaintiff, to protect yourself with respect to your complaints of physical injury, can't wait six months, can't wait two weeks, if you've got immediate complaints of discomfort in your neck or your lower spine. There's two places usually in motor vehicle accidents us with whiplash that people have complaints and one is right where your back starts to move, which is called L four l five is right at your beltline. And depending upon what you do for a living and how much bending you done, that's where your back blows out in a car accident, is it l four l five, and it can be anywhere from C four, to C C six. And when I'm talking about cervical vertebra in your neck, where you can have problems and because most of us have done some type of work, physical work in their lifetimes, or they've been bent over a desk and staring at the screen of their computer for too many hours at a time, then they've created weaknesses in their, in their spine. And and when you're hit in a car accident, then your body can't protect those points of weakness. And that's where you get injuries involved. So the key is to go see your doctor. These days, you're free to seek a sort of a myriad of treatments and having been injured in a couple of car accidents. Not real badly in my 30 years as a lawyer, but I'm also an athlete. So I've learned that certain types of passive rehabilitation for soft tissue injuries are very important. And they used to disparage the chiropractors and what have you but people like to go to see their chiropractors because they spend more time with them and they give them different types of treatment. But the thing to remember, especially with chiropractors is that you can't manipulate soft tissue continually without causing a chronic pain problem. The soft tissue is not rubber bands and asked to recover. So certain types of passive rehab can go hand in hand. And because you have a right to seek different types of treatment, you can go see your medical doctor and go see a chiropractor. You can go see an accurate puncture is and, and I've discovered in my career as an athlete, that the greatest medicine in the world sacks like ice, that if you ice a soft tissue injury, the quicker you get the inflammation out of the cell, the quicker you're going to begin to recover. And, and along with that, there's other student forums of pastors, rehab can be massage, therapeutic massage, which is very short term in effect for certain short term for soft tissue injuries, but it feels great.
But it goes very quickly. The acupuncturist, if you get a good acupuncturist, anything that helps in that way that doesn't keep adjusting the soft tissue is going to allow you to recover quicker. And that's the key is that, what, when we're injured, especially if there's any form of a spinal injury, there's a lot of discomfort that goes with it. And when I'm talking about it, because it's your back and your neck, it could be you can't sit for too long, you can't lay for too long, you can't sleep. And one of the critical components and every medical doctor will tell you is this that your body needs rest to recover. And if you're in pain, you're not sleeping, and you're not recovering. And so all of these things go together and and your body, which is a real miracle device will help heal itself, if you help him. And so the key is, is that keep your mind open, you can use your medical doctor, even medical doctors now or refer you to a chiropractor. Keep in mind, you can't manipulate your soft tissue three times a week that you can balance that chiropractor with passive forms for prehab. Acupuncture, therapeutic massage, ice, heat, all kinds of things, because the key is to get you to the point where you're medically stable. And if, if your injury is serious enough, your medical doctor or even a chiropractor can refer you on to that awful thing I was talking about at the beginning. Rehab and physical therapy and physical therapy, especially when you have more serious injury, serious soft tissue injuries and spiraling interest hurts. Yeah,
Steve Altishin 37:36
I imagine it does it. You know what? I have to say this, we have run out of time. We're gonna talk again, we're gonna do some more of these Facebook Lives because there's a ton of issues we can talk about the rehab, just the the way the lawsuits work, all these kinds of things. And so I really thank you for being here today. Appreciate it very much, Terry, you made this stuff easy to understand. And like you said, you spoke in English, you didn't speak it and say Nunc pro Tunc once, and you didn't have all the legalese. Thank you, Terry, for being here today so much.
Terrance Lee Hogan 38:16
Certainly. And I really enjoy helping my injury clients, I enjoy helping all my clients, whether they're family law or injury, but the bottom line is, is that we need to do certain things in order to get us to the finish line and and most importantly, is money. It's not a sap, you can't rub it in your injury and make yourself feel better. So if you've done everything that the doctor told you to do, and you mitigated your damages, then chances are you will have recovered and you won't have these lingering effects with soft tissue injuries. And, and that's the most important part is to talk to your lawyer. Don't talk to people you shouldn't talk to, and and always let your note lawyer know exactly who's requesting what sort of a who, what, when, where, how
Steve Altishin 39:08
I like it. And I we're gonna do a whole other thing on just who to talk to and who not to talk to. So everyone else. Thank you for joining us today. If anyone has further questions on today's topic, you can post it here we can get you connected with Terry, we can get you in with that consultation he was talking about for you and everyone stay safe. Stay happy and good day.
Terrance Lee Hogan 39:33
Please, everybody stay stay safe and healthy. Yeah, thank you. Thank you, everybody.
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