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Alexia Esq.
Alexia Esq., Managing Attorney
Category: Legal
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Experience:  19 Years of Legal Practice Experience in this precise field.
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I was injured in a slip and Fall almost 4 yrs.ago and suffered

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I was injured in a slip and Fall almost 4 yrs.ago and suffered a broken patella...my lawyer now says that due to the slip and fall case law in NC, we should accept a $2,000. settlement...they are not going to reimburse $7,294.95 which w/be repaid to to medicare, etc.....my Attny sez $1000. w/be paid to me and $1000. to medicare....pls explain the slip & fall case law...and why should I have to give half of the settlement to medicare when the insurance people are NOT reimbursing me for the medical expenses? Pls explain...Many thanks!! Helen Colvin (XXX) XXX-XXXX
Submitted: 4 years ago.
Category: Legal
Expert:  Alexia Esq. replied 4 years ago.

Dear Jag,

 

First, there is no NC law that says you have to accept $2000 for your slip and fall case. What he is probably meaning is that you have a case where most of the liability for the slip and fall rests on you, that the evidence is not available to prove that the owner of the premises was negligent. In NC, the plaintiff has the burden of proof of showing that the defendant was more at fault then the plaintiff. In slip and falls, the plaintiff always has a duty to look where he is stepping/going, etc., and to avoid any dangerous areas that are visible to a reasonably prudent person. Thus, it would appear that there is little admissible evidence that the defendant was negligent here. Your damages are clearly evident, as to existence, although the value of course would depend on a jury. Remember, slipping and falling is considered our own fault UNLESS we can show someone else was at fault. The other party is not liable until proven negligent. Did you provide proof that the defendant failed to keep the floor dry, such that you slipped on excessive water that you could not have seen? YOu need to point to something they did wrong.

 

That all being said, only YOU can decide if you will settle. They can't force you.

 

Now, Medicare reimbursement: This is a nightmare.

 

The rules and regulations governing Medicare's priority right to be reimbursed from personal injury settlements and judgments are confusing. It is often inequitable, and almost always frustrate the parties' legitimate interest in expeditiously resolving claims or settling the case, as you are experiencing here. Medicare's right to reimbursement is governed by hundreds of different statutory and regulatory provisions, all designed to ensure Medicare gets repaid from personal injury proceeds whenever possible and before anyone else, including the Medicare beneficiary. First, I would determine from your lawyer his basis for saying that Medicare will only take $1000 of a $2000 settlement - he may have received written confirmation from Medicare that they would be willing to accept only $1000, so learn if that is true. Also, learn if that $1000 obligation would only apply to a $2k settlement. WHat is you got $5k? Would medicare then take $4k, leaving you $1k? Also, what will the attorney take? Will he take 30% of your $1000 or of the $2000, even though it will all be coming from you $1k? If so, make sure he puts in writing the full proposed settlement statement showing the exact amount of net proceeds you wil be getting.

 

I hope this helps explain the difficulties here. Personally, if it were me, I would probably refuse to settle if it meant only $300 in my pocket. I'd rather let Medicare starve and try the case, hoping for better. Your attorney may not be willing to try the case, however, if it is very weak, so you may have to try it yourself or find another lawyer willing to do so.

 

 

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My Standard and Required Legal Disclaimer. The information given by me here is not legal advice. You should not and may not rely on anything on this website as legal advice and you agree that the nominal price you may voluntarily pay for information here clearly does not pay for any legal advice. I am neither establishing nor accepting an attorney-client relationship with you. You must hire an attorney in your state as a matter of law, in order to receive legal advice and attorney/client relationship and rights. I do not claim to be licensed to practice in the state where this information is being provided or whose law would apply, if any. My licensing credentials are noted in my profile, which you have full access to. As law is always changing, you are recommended to consult with the appropriate legal counsel in your jurisdiction for accurate and complete information. Thank you, XXXXX XXXXX a great day.

 

Alexia Esq., Managing Attorney
Category: Legal
Satisfied Customers: 11782
Experience: 19 Years of Legal Practice Experience in this precise field.
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