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When You Finally Settle Your Medical Malpractice Case, How Do You Know When the Insurance Company Sends Your Settlement Check?

The answer is simple.

In New York, when the insurance company sends your lawyer the settlement check, they also send you a letter that same day letting you know the check was sent to your lawyer. That’s how you know.

But here’s something you may not know.

Before you can get your settlement check, a number of things have to be done first.

Let’s say you sued your doctor for medical malpractice.

You claim your doctor was careless and caused you harm.

You also claimed that your injuries were permanent.

 

Your doctor disputed all of your claims. He said he did nothing wrong and even if he did, it didn’t cause you injury. Then, to make matters worse, he blames YOU for your own injuries. Then, to rub it in further he says that whatever injuries you do have, are not as bad as you claim.

 

Your lawsuit has been going on now for almost two years. Through discovery and depositions, your doctor has refused to acknowledge what he did was wrong. He’s refused to take responsibility for his actions. Frustrating? You bet.

Your lawyer tells you that your case is going to trial. The defense is not willing to negotiate.

That means that your lawyer starts getting your case prepped for trial. He starts meeting with his medical experts. He starts preparing legal briefs for the judge. He has his investigator prepare subpoenas to get your medical records into evidence and to make sure certain witnesses are compelled to come into court to testify.

 

A few days before jury selection is scheduled to start in your case, the defense reaches out to your lawyer. They want to know if you’re open to the possibility of trying to settle your case. As a result of that phone call both sides enter into settlement negotiations.

 

These negotiations go on for a few more days before you finally agree to accept the defense’s offer. Your lawyer congratulates you. He says you made a wise decision. This way you avoid having to go through a lengthy and aggravating trial. A trial that would cause you to go on an emotional roller coaster.

 

Your lawyer tells you that you need to sign certain documents in order to get your money. Money that represents full and fair compensation for all the harms, losses and damages you suffered because your doctor was careless.

What documents do you need to sign?

You’ll need to sign (1) a General Release, (2) a Hold Harmless and likely (3) an Affidavit of no liens.

Just what are these three documents? Glad you asked. Let me tell you what they are…

 

A general release is a document that say in exchange for the money you’ll be receiving, you agree to end your lawsuit against your doctor. You agree that you can not return back to court and reopen this case. You agree that you give up your right to go to trial to have a jury decide whether you’re more likely right than wrong that what you’re claiming is true.

 

A hold harmless is a document that says that if Medicare or Medicaid or some other agency or health care provider is responsible to pay for medical expenses that you incurred because of your doctors’ carelessness, then you are obligated to pay THEM for the money that they paid on your behalf.

 

A ‘no lien’ letter is a document that says “I’m not aware of any federal, state or government agency or health care provider who has placed a lien against the proceeds of this lawsuit.” A lien is basically a hold on the money you are to receive in your settlement.

If you were a Medicare or Medicaid recipient, you are presumed to HAVE a lien unless and until proven otherwise.

In addition to those documents, the attorneys must sign a “Stipulation of Discontinuance.” That’s a simple document to be submitted to the court signaling them that this case has been settled and there is no need to continue this case or to have a trial in this case anymore.

 

Once these documents have been properly prepared and signed, your attorney will send them to the defense attorney to process. In New York, the defense now has three weeks from the time they receive these documents in which to make payment.

 

However, there are two exceptions here.

The first is if there are errors in the closing papers. If a doctor’s name has been misspelled or there’s a typo somewhere, the defense will send the papers back asking your attorney to re-do them.

 

The second exception is where you brought a case against a municipal, State or Federal agency. In those cases, the law allows them some additional time in which to send your settlement check.

When your check is ready to get sent out, a letter is also prepared and sent to you as well. It tells you that your check is now going out to your attorney. He should have it in a few days. This way, you have peace of mind as to approximately when your money is coming in.

But wait!

Did you know that your check is not made out only to you? It’s true. It’s also made payable to your attorney. Want to know why?

To prevent you from taking your check and running away. Or at least keeping all the money for yourself and not paying your attorney. That’s true.

 

Here’s the procedure…

 

Your settlement check is made out to you and your lawyer. Both of you must sign the check. In many cases, clients give their lawyers permission to sign the check on their behalf since they don’t want to come into the office just to sign the check. The check must then be deposited into the bank. Into a special trust account called an attorney escrow account.

 

From there, depending on how much the check is for and whether it’s drawn on an out-of-state bank, it will take a few days for the check to clear. Once it clears, your attorney will then get repaid all the expenses he paid out to prosecute your case. Then, your attorney will get his fee. Then, you will get the balance. At that point, your lawyer will call you to come into the office to get your settlement check.

To learn more about when the insurance company has to pay, I invite you to watch the quick video below…

 

 

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer