Answers to specific questions regarding each area of Indiana personal injury law can be found on each specific page. Below are answers to general questions about DiMartino & Pejic and our qualifications.
There are many great attorneys in Northwest Indiana and each attorney has his or her own gifts or practice emphasis. Personal injury law focuses on injuries to the individual person. Because Guy DiMartino is also a chiropractic physician, we have a deep understanding of injuries. If you hire our firm, you will receive the benefit of trial lawyers with vast knowledge of Indiana law and understanding of injuries to the human body. Remember that many medical conditions are complex and these issues need to be simplified for the insurance adjuster and/or jury to understand the true impact of the injury on the client.
Yes. We would be pleased to discuss your potential case for no obligation. However, this is not uncommon. Most good personal injury lawyers will take the time to discuss a case with a potential client. Even if you think you want to handle your case on your own, you may receive a benefit from consulting a lawyer initially. The lawyer may be able to shed some light on the issues involved in your case. Anything that you say to a lawyer, whether you hire the lawyer or not, is privileged.
We accept personal injury cases on a contingency fee basis. A contingency fee has a number of benefits for the client. First, the client is not charged a fee if there is no recovery in their case. Second, the lawyers in the firm have the incentive to work as hard as possible to increase the amount of potential recovery because the higher the recovery – the higher the fee. The standard contingency fee is 1/3 of the recovery. Medical malpractice cases are a different story because of statutory caps on attorney's fees and need to be discussed with one of the attorneys.
Maybe. We would be more than happy to discuss the matter with you for no obligation. Whether or not we take the case depends on a number of factors including the facts of the accident, how long the case has been pending, and how many mistakes you might have made in the personal injury claims process.
Your case will be handled by a lawyer. We may have an assistant or paralegal help us with the case but all major actions and decisions will be handled by the lawyer.
We primarily handle cases throughout Northwest Indiana including Lake, Porter, LaPorte, Jasper, St. Joseph, Marshall and Elkhart counties. However, depending on the nature of the case, we may consider taking a case in other parts of Indiana.
Auto Accident Litigation
The decision whether to hire a car accident lawyer or not really depends upon the facts of the case. There are some cases in which an auto accident or car accident lawyer will not get you more money than you can get on your own. The hallmarks of these cases are:
- There is little or no property damage to your vehicle;
- Your injuries are somewhat limited. For instance, you may have a strained neck or strained back, causing you to have to see a doctor once or twice and physical therapy for 4 to 6 weeks, and the condition clears up with the treatment.
- There are no issues regarding payment of your medical expenses. If you have medical payments insurance or PIP insurance under your own auto policy and your bills are only a few thousand dollars and will be paid, I think you can go about it your own way.
Those are the three hallmarks; small property damage, limited treatment that gets better, and no dispute over the medical expenses being paid.
On the other hand, if the insurance company starts arguing with you over who is responsible for the accident or whether not your injuries are significant, or they're claiming your injuries predated the accident, or they're putting up hurdles to bringing the claim, then you might want to see a lawyer to help you.
Additionally, you need a lawyer if you have significant, severe injuries, or if you're dealing with multiple insurance companies, in order to protect your rights. You need a lawyer to negotiate with the other insurance company, and to keep you out of trouble so you don't make the typical mistakes that folks make when it comes to car accident claims. The lawyer will protect you through the whole process and make sure that you get fair and just compensation for your injuries.
The moment you experience pain after a car accident, get checked out, for two reasons. First, there may be a severe medical problem going on beneath the surface. I have seen cases in which folks have complained of dull pain in the back of their neck, so they go to the hospital and the X-ray shows a broken neck. I've seen other folks with minor neck pain after an accident, who ended up tearing a blood vessel and developing a Vertebral Artery Dissection, which can cause a stroke.
I've seen other people who had just a dull neck ache at the base of the skull and they went to the hospital for a head CT that revealed blood pooling in the brain. Therefore, if you are experiencing any type of pain, get it checked out, because it could be something very severe. If you want to wait a few days, that's fine, but if the pain gets worse or doesn't get better within a few days, you'd better get it checked out.
The second reason it's important to get checked out as soon as possible goes to your personal injury claim, because there is something called a “gap in treatment.” Some insurance companies, like Allstate, use a computer software program that requires information, such as the first date the car accident victim saw a physician, and they use this information to determine how much the claim is worth. One triggering factor in that computer program is whether the person received medical care either the day of the accident or the day after, because the argument is, if you're injured in the accident, you will seek medical care within 24 to 72 hours at the outset.
If you're in a state like Florida – I practice in Indiana and Florida – in order to qualify for no-fault benefits for medical payments, which will pay up to $10,000, you have to make contact with a medical provider within 14 days of the accident. There is no way around the time frame. So, my recommendation to anyone is, if you're experiencing pain, you need to get checked out within the first couple of days. The longer you wait from the time of the accident to get checked out, the harder it will be to make a car accident claim.
That's a question many people have either the first or second time they see a lawyer. Everyone wants to know the value of their car accident claim, but there are a number of factors that go into how an insurance company or jury will value a claim. If you go to court, a jury will answer a series of questions about your injuries or damages having to do with the nature and extent of your injuries, the amount of your past medical expenses and whether there are medical procedures that you're reasonably certain to have to undergo in the future, how often you will have to undergo them and how much they will cost.
Juries and insurance company will also look at past wage loss, how much time you have lost and how much you could lose in the future, in order to place a dollar amount on your wage loss and future earning capacity claims. A wage loss claim looks at the period from the time of the accident forward, while a future earning capacity claim looks at the future. For instance, if you're pianist and you break your hand and you used to make $3,000 a week or $3,000 a month, but now, because of the accident, you can only teach piano lessons and only make $2,000 a week or $2,000 a month, you have a difference of that $1,000 a week or $1,000, which can be awarded for now and for the future.
So, if you were a surgeon who made $400,000 a year, but because of the injuries you sustained in the accident, you have to become a general practitioner and your income drops to $200,000 a year, the measure of damage in that type of case would be $200,000 a year until an expert says you would have been able to earn that as a surgeon.
A jury or an insurance company will also look at your actual losses, such as the cost of having a nurse come in and see you, the cost of changing the structure of your home to accommodate you, such as installing a handicap rail in your bathroom or handicap ramps inside or outside your home, or the cost of needed orthopedic appliances, a special lift on a van, especially if you had to buy a van because you're unable to use your car, the cost of a wheelchair and/or a scooter to get around, or even a whirlpool or a pool for physical therapy. Those are all things an insurance company or a jury will look at, and those types of damages are called “economic damages;” numbers we can actually point to, that you can collect for your claim.
There is another area damages called non-economic or “pain and suffering” damages. Those are the losses to you as a person, such as pain and suffering, both physical and mental, or the loss of quality of enjoyment of life, or scarring or disfigurement or anything that would impact you as a person.
There is no hard and fast rule for non-economic damages. In Indiana, you get non-economic damages from day 1. In a no-fault state like Florida, you have to show one of three things; one is that you have significant scarring; another is that you lost an important part of your ability to function; but in most car accident cases you have to show that your injury is permanent. So, these are the elements or types of damages.
We also have to look at the facts of the accident. You see, if the defendant is a 100 per cent at fault, the defendant is responsible for 100 per cent of the damages. However, if a jury or an insurance company argue that you were partially at fault for the accident, then your damages will be decreased by your percentage of fault. In Indiana, to receive compensation for your injuries, you can't be more than 50 per cent at fault for the accident. In some states like Florida, which is a pure comparative fault state, you can be 90 per cent at fault and the defendant can only be 10 per cent at fault and you can still receive 10 per cent of the recovery.
These are the issues that we have to look at in a car accident. Everything is very fact-specific, so if you initially go into a lawyer's office, most times, the lawyer isn't able to tell you how much your claim is worth because they have to gather all the information, including the facts of the accident, the facts of your treatment, what your doctor says about the future, whether you will be able to work, whether you have lost income, and whether you will continue to work and how much income you will have in the future; all of those facts have to be developed. Once your lawyer gets these facts, they can sit down with you, give you the pros and cons of your case and give you a settlement range and what he thinks the jury will do with your claim.
In most car accident cases, attorneys work on a contingency fee basis, which is usually better for the client.
Typically, there are three types of fee structures for lawyers. The hourly billing lawyer asks the client to pay a retainer and then bills you hourly against the retainer and sends you a bill every month or every six weeks and you are expected to pay as the case goes on. In some cases, a lawyer charges a flat amount to handle your case. For example, in a personal injury case, the lawyer may ask you to pay $10,000 up front.
As you can see, an hourly fee arrangement and flat fee arrangement usually won't work in personal injury cases because there are a lot of unknowns, and a lot of people don't have a lot of money to put up front. That's why personal injury cases, such as an auto accident case, is usually handled on a contingency fee basis, in which the lawyer is paid a percentage of any recovery, and if there is no recovery in the case, the lawyer gets nothing. A contingency case is something of a partnership, in that both the client and the lawyer take risks.
The other thing that's good for clients with regard to contingency fee-based contracts is that the client does not have to pay the costs upfront. Everything that you do in prosecuting a personal injury case costs money, including taking accident scene and other photos, obtaining medical records, filing the lawsuit itself, taking depositions of doctors, experts and witnesses and much more. In some cases, the lawyer may put $5,000 or $10,000 of his own money into the case and of the client wins the case, he or she is responsible for that, but if there is no recovery, the client owes nothing.
That's why it is so important in a personal injury matter, especially car accident cases, that the client is upfront and honest about everything; the lawyer is taking on as much risk as the client is.
Some folks would like to believe that insurance companies are malicious or evil. There are a couple of insurance companies out there that are not my favorite insurance companies, and I think they have an evil or malicious stripe, but the truth is, insurance companies are only in the business of making money. Personal injury claims are personal to the injured person, but to an insurance company, it is just business. Insurance companies gather data and run it through complicated computer programs, and all they do is evaluate risk of loss versus benefit. If the risk to the insurance company or their insured is greater than the benefit then they pay the claim quickly.
On the other hand, if the insurance company has determined that this case is a risk that they want to take, then they're going play hardball with the injured person, because it's all about risk-benefit for insurance companies. Sometimes, there may be individuals inside insurance companies who are malicious or evil, but otherwise it's just a business. Sometimes it's difficult for folks who are injured in accidents to understand that because it's personal to them, but when I sit down with my clients to talk about money, that is something I always try to explain; you have to look at this as a business decision.
You have to determine whether you're risk-tolerant or risk-adverse. When there's money on the table, we crunch the numbers and the client has to decide whether to resolve the case or go forward and risk going to trial because no trial lawyer will tell you they know what the jury will do in any given situation. The benefit of settlement is that the client makes the decision, while the detriment of going to trial is that 6 people who usually have no more qualification than having a driver's license or owning a piece of property in the county where the accident happened will make a decision that will affect the injured person's life.
The wrong person in an accident case is someone who is under or uninsured, because the whole purpose for bringing an accident claim is to get fair and just compensation for your injuries. That's the only purpose of bringing the claim; you're not going to take away their license, or stop them from driving, or take their home or their car; the whole purpose is to get fair and just compensation.
If someone is uninsured or underinsured, there may be a limited path in which you can receive money. Everyone who owns a car should purchase uninsured and underinsured motorist coverage. Insurance only has one purpose; to protect each of us as individuals, which means getting enough insurance to protect ourselves should we go out and hurt someone because we were texting or answering the phone or we were tired and not paying attention; we all have brain farts and sometimes we injure someone or damage their property.
But we also want to protect ourselves if some knucklehead hurts us and we can't work for a long time or we need extensive medical care, and to do that, we should carry a high level of uninsured and underinsured motorist coverage because odds are that many people around you on the road don't have enough insurance to pay for your car and your injuries if there is an accident.
The simple answer is yes, but it depends on the facts. If you are partially at fault for an accident in Indiana, as long as you are not more at fault than the other driver, you can receive compensation for your injuries. The kicker is, the full amount of compensation will be reduced by your percentage of fault. So, if you are 50 per cent at fault and your full measure of damages is $100,000, then you will get $50,000. However, if a judge or jury determines that you are 51 per cent at fault, you get nothing. That is the comparative fault statute in Indiana.
The other thing you should understand is that, if you are involved in an accident with some vehicles, such as a police car, fire truck or a vehicle that is owned by a state or municipality, say a Parks and Recreation Department or Indiana Department of Transportation Vehicle or a Gary Sanitary District vehicle, if you are even 1 per cent at fault, you get nothing.
There are many things you shouldn't do when you are involved in an accident. The first thing that you should never do is to lie or hold back the truth regarding prior injuries, prior accidents and prior medical conditions. The next thing you should not do is give a sworn statement to the other driver's insurance company.
The next thing you should not do is to delay getting medical treatment if you feel pain and you are injured. Gaps in treatment really impact the ability to receive compensation. The next thing that you should not do is give the insurance company a blanket medical authorization to get all of your medical records. There is a lot in your medical records they are not entitled to, and that's your private information. Some doctors keep records for 20 years; does the insurance company really have to know that 20 years ago, you had an abortion? What does anything that far back have to do with the facts of the accident?
The same is true of work record authorizations! If you decide to handle the case on your own and you want to give the insurance company authorization to get some of your work records, limit the authorization to information regarding your time off since the time of the accident, and some information regarding your wages for 6 months or a year before the accident. However, they don't need to see your work application, any medical exams that were done, any professional write-ups or other things that are part of your employment record.
Should you have to file a lawsuit later, they may be entitled to that information, but early on in the process, they are not. So, those are the main things; tell the truth, get medical treatment, don't give a sworn statement to the other insurance company, and don't sign a blanket medical or employment authorization.
Often, folks do not pursue medical malpractice cases because they don't know medical malpractice occurred. Sometimes, there's a bad result and either the family or the injured patient, do not get the proper information and the hospital or doctors or nurses don't admit the problem. Medical malpractice is a problem in the United States; some research shows that about 98,000 people die in hospitals every year due to medical malpractice of some sort, including medication errors, communications gaps and things along those lines.
There are a number of reasons why people do not pursue medical malpractice cases, and one is that the laws in all states, and Indiana, in particular, is very hard on the patient, which means it's very difficult to take on a medical malpractice claim and win. The Medical Malpractice Act, for example, requires that the patient go through an administrative process, which most patients lose. That means, when you go into court, you're starting the process with three or four doctors who are against you.
Another problem is that the expense of pursuing a medical malpractice claim is extraordinary. The least it will cost to bring a claim is probably $30-40,000, and I have been involved in some medical malpractice claims over the years that have cost well into six figures to pursue. Because of the way the law is structured and because of the cost, only certain victims of medical malpractice can even find a lawyer to take their case; for a lawyer to take a medical malpractice case, the potential damages have to be in the high six figures or low seven figures, or the risk-benefit is just not there. So, you have to have either severe injury or death.
Another reason why people don't bring medical malpractice claims is because they like their doctor. If the condition resolves and their doctor is honest with them, they will often say, “Well, you tried your best. You made a mistake and I understand that.” Those are the dynamics that go on, and the reasons why a lot of folks do not bring medical malpractice claims.
I don't think there is a wrong attorney for a medical malpractice case because very few attorneys handle these cases. The one thing that I would recommend is that, because there are whole bunch of types of medical malpractice, you want to make sure the lawyer who's handling your case has handled those issues before.
I'm very strong, based on my experience, in dealing with abdominal surgery cases, whether it's Bariatric Surgery or gallbladder medical malpractice, and I feel very comfortable handling cardiology issues, delayed diagnosis of pulmonary embolism or heart attacks or problems with open heart surgery, but aside from orthopedic injuries at birth, which is like a shoulder dystocia case, I don't have a lot of experience dealing with babies who develop cerebral palsy, which can happen due to a lack of oxygen which could have been a problem with the nurses in the hospital during the labor and delivery actually identifying problems with the fetal monitoring strips.
There are probably a number of lawyers out there that have handled 10, 20, 30 of those cases, so that type of case is better handled by that lawyer, because they have already gone through the process and refined their technique for getting results. That is my only caveat when looking for a medical malpractice lawyer because the truth is, often you'll call 15 or 20 lawyers just to find one who will even sit down with you for a medical malpractice case in the state of Indiana.
Based on my experience, of the three most common types of medical malpractice, number one is the delay in diagnosis of a medical condition, especially when it comes to heart attack, pulmonary embolism, or even cancer. It's usually an issue in which the doctor at a hospital did not timely diagnose the medical condition and because of that the person was severely injured or lost their chance to receive effective treatment that may have cured them or allowed them to live a longer life.
The second most common type of medical negligence that I see are surgical errors, which can include orthopedic errors or even nurse surgical errors. It can be someone going in for spine surgery and the surgeon transects or hits the spinal cord causing a spinal cord injury, or it could be an abdominal injury, in which the surgeon tears a blood vessel or injures the common bile duct or a doctor performs a gastric bypass surgery incorrectly and the person starts leaking and become septic, or something along those lines.
Another common surgical error is improper monitoring. For instance, if someone is starting to leak from a gastric bypass surgery or starting develop an infection and the nursing staff fails to recognize the first signs and symptoms of infection – usually an increased heart rate and change in temperature.
Another situation in which we see improper monitoring has to do with drugs. Many folks are on a drug called Coumadin or Warfarin for a condition called “Atrial Fibrillation;” that drug is used to thin the blood so people don't grow clots that can either go to their brain or their lungs. Now, the problem with Coumadin is that a lot of things that could potentially make the Coumadin stronger, so these folks need to go into a lab relatively frequently to make sure their blood is within the proper range.
I've been involved in a number of medical malpractice cases where the patient's INR of their blood vessels was so high that they ended up bleeding in the brain or bleeding internally and either dying or suffering severe injury, so, we see improper monitoring post-surgically and improper monitoring of drugs or medications.
Those are the three biggest issues that I see medical malpractice; a delay in diagnosis, surgical errors and improper monitoring.
Motorcycle Accident Litigation
Hate is a strong word, but will the courts be biased against you? Well, the court or judge probably will not be biased against you, but a typical person in the community may have a bias against motorcyclists, and that's one of the hurdles you have to overcome when you've been injured in a motorcycle accident; many people, when they think of motorcyclists, think of the kid on the crotch rocket going down the middle lanes of a highway doing a wheelie, or the motorcyclist speeding by them at 110 miles an hour on a country road. So, when they think motorcyclists, they think they're the devil.
If you're injured in a motorcycle accident, to overcome that bias, you'll have to show that you were not a daredevil, that you took motorcycle safety courses that you wore your leathers that you wore a helmet that you weren't driving erratically, that you have a good driving record, and that you have a good job. You have to demonstrate the things that make someone say, “Oh, this person is not like that kid who is shooting down the road doing wheelies.” That's the biggest thing you have to overcome in a motorcycle accident case, no matter how severely you're injured.
Under the law, wearing a helmet or not does not make a difference in your motorcycle case, but then again, we have to talk about a juror's perception. Jurors often hold the helmet versus no helmet dichotomy against you, so we will often use expert testimony to show that that the motorcyclist would have received the same or similar injuries, with or without a helmet. I have seen many cases in which people receive significant head injuries while wearing a helmet and others in which people wore no helmet and received no head injury.
The helmet distinction really only comes into play when you claim a head injury. If you broke your leg, or your arm, or an ankle in the accident, the helmet should not come into play, except possibly for the juror with a generalized bias.
Most folks injured in motorcycle accidents, who hire an attorney will do so on a contingency fee basis, which means the attorney will pay out the cost of prosecuting the case, and if there is a recovery, the attorney will be reimbursed for costs and also get a percentage of the recovery. Contingency fee cases usually work best for people who are injured because they don't have thousands of dollars to put into a lawyer, plus they often have significant medical bills and they're out of work.
If you were to come into my office and wanted me to represent you on an hourly basis, depending upon the issues in the case, my hourly rate will be $300 to $400 an hour, although in some personal injury cases, I charge $500 and in others, I may have to charge $1,000; do the math.
Therefore, for most folks who are involved in motorcycle accident cases, the best bet is to go with the contingency fee contract and the lawyer is assuming the risk; there's no fee if there's no recovery. But the choice is always yours; if you want to negotiate an hourly rate or a flat fee, you might find a lawyer who will agree to that type of arrangement.
Of course, the worst thing that can happen in a motorcycle accident is that someone is killed, but if you're talking about injuries, the most severe injuries are a bleed in the brain or a stroke due to a head injury, internal injuries causing bleeding internally or damage to your heart, lungs or even the bowel, because many times after those are repaired they can become infected, especially due to foreign material.
The third-worst injuries are orthopedic injuries which we see a lot in motorcycle accident cases. Orthopedic injuries can be sometimes even more severe than a brain injury; I've seen multiple cases in which folks have lost legs or arms after a motorcycle accident. From worst to least, as a general rule, I would say death or head injury, internal organ injuries and then orthopedic injuries, but it always depends on the facts of the case.
The role of the insurance company for the driver who hit you, if you're a motorcyclist, is to pay the claim to protect their insured for as little as possible. There are 10 ways insurance companies do this.
In a motorcycle accident, they try to make the motorcyclist look like a daredevil or someone who is irresponsible. They will also try to show that the motorcyclist lied or hid something, to impact their credibility as a witness, because they know you have to overcome the bias most jurors have.
The insurance company will work really hard to paint you as the daredevil, and your job is to do everything in your power to show that you are responsible and not a daredevil. You do that by showing that you took motorcycle safety courses, you were wearing the proper gear, and that you've been riding a motorcycle for a number of years with no issues. You can even show that you've taught motorcycle safety courses and that you're following your doctor's advice. Anything that will show you to be a good and responsible person could overcome that insurance company's tactic of leaning on a juror's bias.
Nursing Home Abuse
Nursing home abuse is more common than you think; most of the time the resident is too scared to report it, for a number of reasons, including the possibility of retaliation, the possibility that they may end up in an even-worse nursing home or no home at all. Also, many of the folks in a nursing home are frail, infirm, or they may suffer from dementia, so they might not be able to articulate to their family that a problem is going on.
That is why it is so important, if you have a loved one in a nursing home, you have to be there; you have to let the staff know that you're involved and you have to look after your loved one. I know that they don't want you to but you have to pull up their gown, and make sure there's no significant bruising, or that their skin has not been broken. You also have to make sure they're getting food and getting and taking medicine. You have to be an advocate for your loved one in a nursing home.
The top 3 signs of abuse that you should look out for when you have a loved one in a nursing home are these:
First, look for a change in their personality. If they start to become dejected, or become withdrawn, you be concerned and speak to their doctor; it could just be the dementia, but it may be something else. But that's the first thing; a change in their personality and a change in their behavior.
The second thing to look for is a change in their weight, especially if they've lost a lot and they look frailer. At those times, you should start inquiring of the staff whether or not they're eating; often, nursing homes try to put as many people as possible in the nursing home and keep the staff small because they put profits ahead of people. So, if your loved one is not really good at feeding themselves and a CNA or nursing assistant does not make sure they eat, they may be putting the tray out and coming by 20 minutes later to pick up the tray, whether your loved one ate or not.
The third thing that to do is to really talk to your loved one and ask them, “How are things going?” You need to look at their skin, because the skin will inform you if they're not eating properly, there may be a skin breakdown and the beginning of bedsores, which can be deadly, and the skin will show if they're dehydrated. Really take a good look at their skin; feel it, touch it, pull it up and see if it bounces back. Those are the things that you need to do to protect your loved one in a nursing home.