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Roger
Roger, Attorney
Category: Personal Injury Law
Satisfied Customers: 27240
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Question: If you were in an accident, initially damages for

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Question: If you were in an accident, initially damages for car was 1500 after it has gone to collection agency it has jumped to 5000, upon request for documents evidencing the new amount, collection agency has stated that they cannot release hospital documents dew to the hippo law, how does one pursue and issue of this nature if one suspects insurance fraud is it by discovery tools?
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Roger replied 1 year ago.
Hi - Thanks for looking me up!

You would have to obtain a HIPAA release from the person who you are seeking medical records from. However, you are entitled to these records, but they do have to be obtained after first getting a HIPPAA release.

If the party will not give you a HIPAA release, you can file a motion with the court to compel a release to be provided. Once you get the release, you can issue a subpoena to the hospital or medical provider that has the information you're seeking.

Here's a sample HIPAA release: https://www.novitas-solutions.com/partb/forms/pdf/hipaa-auth.pdf

Also, it is possible to request the plaintiff to Ocoee you with any medical records in his/ her possession through discovery.
Customer: replied 1 year ago.

in relation to approximate damage, if the damages started at one thing then they increased, when damages were no more then 500 would you question the amount by the fact of the damages being a finder bender and it is not possible to reach that amount. or, can a person just give their insurance company a copy of an amount paid and they will reimburse them the amount their client paid out, if that is so it not possible of proving that the amount is not true due to the paper trial even if its false

Expert:  Roger replied 1 year ago.

It's probably not good to take the position that there's no way that the damages resulting from the accident could be that much because it really doesn't take much in terms of auto repair OR medical treatment to get into the thousands of dollars.

Also, an insurance company is not going to just take the word of their insured and reimburse the person based on a representation made. Instead, the insurance company will require copies of bills and possibly even medical records. If the insurance company is satisfied that the documentation is complete, then it can pay out.

The claim will have to be established with damages/proof of damages, and if teh party has no documentation to support the claim, then no court is going to allow it to stand.

Customer: replied 1 year ago.

yes that's true but i,m speaking about if a car was bumped and minor damages close to none occurred the amount started at 500 for car then it jumped up to 5000 is there procedure to check that or a person is out of luck when the paper work starts. my question surrounds protections from insurance fraud or crafty individuals using legal process in a false manner as a racket to fleece individuals unjustly.

Expert:  Roger replied 1 year ago.
Ok - - thanks for the information.

No, you're not out of luck to challenge the cost of repairs/the amount of damage. You have the right to have your own auto repairman look at the car and assess the damage. You can challenge the damage claim based on what your guy says.

IF you presemt an estimate and the other party does teh same, you'll just have to argue it out - - or let a judge decide - - which estimate is the most accurate.
Customer: replied 1 year ago.

can you challenge the medical based on the damages that occurred, that any reasonable minded person could see that this could not or would not be the result of any bodily harm to a passenger when there was no head on collision, or is medical bills not based on a person being harmed?

Expert:  Roger replied 1 year ago.
You can challenge the medical bills and injuries, but you would have to get a medical doctor or other medical professional to testify on your behalf and tell the judge/jury that the treatment was NOT reasonable and necessary given the injuries sustained as listed in the medical record.

You can't use the "reasonable person" standard - - a medial professional must testify about the reasonableness and necessity of the treatment.
Customer: replied 1 year ago.

would this occur in a different court because the collection agency is saying this the amount but they have not produced any evidence of hospital bills or picture's the day of the accident, and can the doctor be any doctor?,also the documents they released are not filled in there one point were it states that all the statements are true under penalty of perjury its left blank with no signature

Expert:  Roger replied 1 year ago.
No, it would be the same court - - the collection company would have to produce evidence/proof of the debt, and then you would be able to challenge the bills/expenses with your expert.

You can use any type of doctor who is familiar with the claimed injuries in your case.

The documents with the blank signature could also help you because there's no one who has certified them as being accurate and correct - - you could object to the use of these documents because they have not been properly authenticated, so you can't rely on them.
Expert:  Roger replied 1 year ago.
Hi - please let me know if you have any additional questions. If so, I'll be glad to assist you.
Customer: replied 1 year ago.

yes the other question is if the collection agency has not proceeded in court but has proceeded with presentments that you owe would you file a complaint in a federal court dew to them not being in your state. to challenge the claims of amount or any liens that they would used as a tactic to force payments without giving pictures of damages?

Expert:  Roger replied 1 year ago.
I wouldn't sue to bring the matter to a head. It's really up to the creditor to sue, and if they do, you can then challenge the validity of the cost/expense. Also, this suit would likel have to be filed in your home county/state because that ourt would have jurisdiction over you.
Customer: replied 1 year ago.

i was informed they have not attempted to sue (creditor) but has tried to go after licence without evidencing facts to what the cost or providing pictures so they can be compared with pictures the day of accident.

Expert:  Roger replied 1 year ago.
I suppose that's possible, but the only way to recover monetarily is would be by filing a lawsuit.
Customer: replied 1 year ago.

against collection agency would this bar them from interfering with the licence because there defense would be we received the debt from our client and there not responsible for the claim

Expert:  Roger replied 1 year ago.
The collection agency is responsible for its actions and can't pawn off legal liability to someone else/its client. Thus, it has to verify the debt before proceeding in any capacity.
Customer: replied 1 year ago.

but what if they have contacted bmv of an amount owed to put lien on operator licence without evidencing the amount to the party at fault. also the documents have been insufficient i.e. no signature on estimates for damages of car. the collection agency has said that their client (insurance company) has paid this amount out and that's why their asking for that amount but will not send documents showing why the amount was paid out just a blanket statement of what was paid out

Expert:  Roger replied 1 year ago.

You would have to contact the dept. of motor vehicles and ask for instructions/information on how to challenge a lien through the administrative procedures that are in place.

You should be able to file a challenge to any lien based on the lack of documentation.

Customer: replied 1 year ago.

you know what i realize, correct me if im wrong, there a private side and public side of law private law pertains to contracts that individuals may draft between themselves how ever if there is a controversy and all of the points are there to create a binding assumpsit then it can be heard in a court of law which becomes public,


In another
sense, a law or statute that applies to the
people generally of the nation or state adopting
or enacting it, is denominated a public law, as
contradistinguished from a private law, affecting
only an individual or a small number of persons.
Morgan v. Cree, 46 Vt. 773, 14 Am.Rep. 640.


so with agency that come into play by statutes or other acts of law they fall under administration of law i.e. public law. for one to gain remedy he would have to follow the procedures of that branch of administration, correct?

Expert:  Roger replied 1 year ago.
All laws are public, but it's possible to privately apply those laws between parties outside of court. That would be a matter for the parties to address.

The same law would apply the same in both situations.
Customer: replied 1 year ago.

but isn't the difference that when your dealing with public law i.e. administrative law the remedy is an administrative remedy which is law but not necessarily judicial in nature, like you said for example to deal with a suspension or lien on your licence you would have to contact the bmv that is administrative law right, and follow there procedure to obtain remedy, it wouldn't be the same procedural wise as far as steps, however; laws pertaining substantive due process or procedural would remain the same in any tribunal, unless the court feels that the issue is not a fundamental right to be protected. correct?

Expert:  Roger replied 1 year ago.
Yes, what you're saying is correct, but it's jusy no characerized by public and private law. Instead, the legislature gives exclusive jurisdiction to state agencies to handle certain matters - - and that's what this is. If the dept of motor vehicles has allowed a lien to be laced against your license, that would be the agency you'd have to address to remedy the issue. There are also still rights to appeal, which would be heard by a traditional civil court.
Customer: replied 1 year ago.

explain that if you would? for you to appeal wouldn't there be a need of a administrative hearing for you to appeal from? or is the decision that was granted alone by the agency enough for you to appeal to a civil court and is a civil court higher than then the agency?


 

Expert:  Roger replied 1 year ago.
Sure.

There would be an administrative hearing, then if you weren' happy with the result of the hearing, you could appeal to the trial court, which would be a higher court. The decsion by the trial court level would also be appellable to the state court of appeals.
Customer: replied 1 year ago.

no i mean for example a person licence got suspended he or she feels that it not correct there was no hearing just like a lean, from there were does the party take it to contested it, due to the fact a state agency is limited by the grant of a states organic act and cannot deprive some one of a privileges or right without due process, im familiar with privileges be construed in some cases as not substantive rights and the only thing required to satisfy due process is a hearing or notification?

Expert:  Roger replied 1 year ago.
Generally, you would start with an appeal of the action within the agency; if the agency appeal doesn't render a favorable decision, then you could appeal that decision to the local trial court.
Customer: replied 1 year ago.

am i accurate in my understanding? another thing in case the collection agency is not suing but has put a lien on your licence the procedure to correct it if possible i.e. the licence would be the administrative approach, if the courts find that there was error then it bars the agency's decision, would it be needed to file a complaint against the collection agency that they have refused to release actual documents of proof damages and went forward to lien without providing proof.

Expert:  Roger replied 1 year ago.
Yes, I think your understanding is correct.

Also, there wouldn't be a need to file a complaint to obtain the documentation you need, but you would be able to ask the administative agency/court to allow you to demand this documentation from the agency during the administrative procedure.
Customer: replied 1 year ago.

you mean after you seek to appeal the lien on licence once it goes to the court then file a complaint that suits the case and file for discovery for documents from there mount your defenses on the facts

Expert:  Roger replied 1 year ago.
You would have to contact the dept of motor vehicles about the appeal process and what discovery/document swapping you can do. But, you should have an opportunity to conduct some discovery; if you appeal to the trial court, additional discovery can be granted.
Customer: replied 1 year ago.

just for understanding this procedure of contacting a state agency would be considered administrative law? Are these procedures common by contacting the agency and going from what they allow or is these methods used based on the usual judicial proceedings that you have to apply to them ?

Expert:  Roger replied 1 year ago.

Yes, this would begin as an administrative proceeding through the dept of motor vehicles. The dept. will have its own rules regarding procedure, discovery, hearing proceedings, etc.

Customer: replied 1 year ago.

but are those procedures commonly used meaning these procedures are in place but the common citizen is not aware of it?

Expert:  Roger replied 1 year ago.
Well, the procedures are likely available to the public, but there may not be a lot of public knowledge of the administrative rules.
Customer: replied 1 year ago.

ok can you explain the term administration of justice, was this term coined after the reconstruction act of the states, or is the word just took for its literal meaning, ive read in a case law were some matters are not judicial in nature, one case stated that "`Proceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence.'" Id., 53 Ohio St.2d at 176, 7 O.O.3d at 358, 373 N.E.2d at 1241. would these type of law be administrative. also is a judicial hearing distinguished from a administrative hearing being that it is not ministerial but rather deals with the facts of law pertaining to personal rights and not discretion?

Expert:  Roger replied 1 year ago.
I don't know that "administration of justice" has a legal definition, but it's what courts and administrative agencies do - administer justice. I don't think that's exclusive to an administrative agency.

Also, administrative agency rules as well as statutory law contain ministerial (no discretion) and discretionary duties. A duty is ministerial if there is a specific mandate/requirement under the law. However, if a rule/law provides discretion in administering a rule/provision, then it is a discretionary duty.



Customer: replied 1 year ago.

can you explain this to me you stated that if a rule provides discretion in administering a rule what do you mean by discretion i found this in blacks law dictionary:


MINISTERIAL. That which is done under the
authority of a superior ; opposed to judicial; that
which involve& obedience to instructions, but demands
no special discretion, judgment, or skill.
State Tax Commission of Utah v. Katsis, 90 Utah
406, 62 P.2d 120, 123, 107 A.L.R. 1477. what is meant by opposed is that it is not judicial correct and that it demands no special discretion, judgement, or skill meaning that it can done without any set ruling etc?

Expert:  Roger replied 1 year ago.
Sure -

A ministerial duty is one that is required to be done by law (by legislation) -- there's no discretion with a ministerial duty.

Rulings made by a judge based on the facts of a case are discretionary and give the judge the right to make a decision based on facts.
Customer: replied 1 year ago.

so ministerial is this, the procedure,the rule of how it is done period! and that's that nothing more nothing less the judge cant say well i feel this way from what i heard so my judgement is this,however; in a judicial hearing the trier has to go by the facts but he can use his or her own discretion.

Expert:  Roger replied 1 year ago.
A ministerial duty is "the state highway department MUST maintain all state highways".

A discretionary duty is "the state highway department MUST make repairs as needed".

- or -

Speeding carries a minimum fine $100 - that's ministerial.

Speeding carries a minimum fine of $100 and a maximum fine of $500 - a judge has discretion to apply a fine anywhere in the middle - - that's discretionary.
Customer: replied 1 year ago.

so ministerial is an mandate something that must be done correct? so does provisions of the constitution become ministerial when the provisions are self executing and the judge has a duty by his or her oath to support it?

Expert:  Roger replied 1 year ago.
Yes, a ministerial duty is a mandatory act.

Yes, if the law is a mandate, it must be followed by the court.
Customer: replied 1 year ago.

example section 10 article 1 of Ohio state constitution states: In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him and to have a copy there of. from this if a person is request to know the nature accusation against him be it contempt or what have you, can the trier refuse to say if it is criminal or civil, is this a discretion call or at that point due to the provision of the constitution would this be ministerial demand? and would that be abuse of discretion?

Expert:  Roger replied 1 year ago.
Yes, the parties have a right to demand this information, but the court doesn't have to make sure a party demands this.
Customer: replied 1 year ago.

but if he demands it can the trier say im not going to tell you due to his descretional ability's or discretion does not apply there. i really would like to get an understanding, is a matter ministerial based on legislation i.e. rules (law) or constitution etc, or is it ministerial because of legislation only not constitution. second we know that the courts have been granted judicial power to to hear cases of law and equity, by there respective constitutions, but judicially the judge is governed by the law meaning the law arises out of fact. like the example i gave earlier about demanding to know the nature of the charge or crime or what have you,these are fundamental rights that should be protected. were does discretion of the trier come in to avoid abiding by that rule, because a person left to his on discretion may not be impartial at times. so my question is what allows a trier to have discretion judicially when judicial findings have to be founded in our jurisprudence i.e. law, maxims, constitutional provisions, how does one hold a matter in honor and upon merit?

Expert:  Roger replied 1 year ago.
A judge/tried of fact must follow the laws, which contain discretionary and ministerial duties. Thus, whether the judge can use discretion or not depends on the statute/legislation that is being applied.
Customer: replied 1 year ago.

Why is the jurisprudence not being a determining factor like maxims or constitutions and case laws of judges using these maxims of law or the facts of the case to apply the law? Doesnt the legislation have to be in accordance to the constitution? Or it will be repugnant thus void? I want to give you an example O.R.C 2705.05 hearing for contempt proceedings.


 


(A) In all contempt proceedings, the court shall conduct a hearing.


 


However; in IN RE NEFF.20 Ohio App. 2d 213 (1969) it states that though the legislature has granted this, the inherent contempt powers of the court is not granted by the legislature and anything that does not grant can not limit, for the contempt powers are constitutionally granted. So my question is, why is the discretionary powers of the judiciary derived from statute when the judicial power of the judiciary comes from the constitution?

Expert:  Roger replied 1 year ago.
The answer, in general terms, is that the constitution directs that a legistature be established to make laws, and those laws include ministerial and discretionary rules.
Customer: replied 1 year ago.

i guess im confused based on that the law of equity, the court has discretion to come up with an equitable conclusion and it may not have to be something written in law but in judicial matter it is based on the facts and the law governing those facts, yes; they may have statutes as a guidance but not to do away with the facts and the law governing the facts?

Expert:  Roger replied 1 year ago.
Courts of equity are given discretion by statute to make judgment calls about issues where there are no ministerial requirements.
Customer: replied 1 year ago.

but what is the difference between equity and judicial tribunals

Expert:  Roger replied 1 year ago.
They're not the same thing.

Equity is a principle and a judicial tribunal is an administrative agency. The tribunal could apply equity.
Customer: replied 1 year ago.

ok kinda confused equity is a principle? like a principle of law or a branch of american jurisprudence? i thought that equity and judicial are two jurisdictions based on the constitution that the judicial power of the courts extend to all cases in law and equity. another question a judicial tribunal is an administrative agency so would a court be an administrative agency also

Expert:  Roger replied 1 year ago.
Equity is a legal principle.

A court is a part of the judicial system, which is one of the three branches if government.
Customer: replied 1 year ago.

so a judicial tribunal is any agency given authority to deal with cases hearing law and equity and they would be administrative agency's because they deal with the administration of justice? is that correct

Expert:  Roger replied 1 year ago.
They're administrative agencies because the legislature has given the agency authority to administer a certain area of law.
Customer: replied 1 year ago.

ok correct if i,m wrong when i think of equity i think of cases that are not necessarily have a jurisprudence behind the conclusion it is based on what the judiciary feels is just and fair, when i think of law i think of maxims of law, constitution, stare decesis, facts of a case, statutes and rules which take place in a judicial tribunal

Expert:  Roger replied 1 year ago.
I agree with that.
Customer: replied 1 year ago.

so i got an A on that one?

Expert:  Roger replied 1 year ago.
Yeah, I think that's right.
Customer: replied 1 year ago.

got another question going to closed out this one.

Expert:  Roger replied 1 year ago.
Ok. Sounds good. Just let me know if you need something further.
Roger, Attorney
Satisfied Customers: 27240
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Roger
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