Synopsis: What to Do When the Unforeseen Happens—Incident Investigation.
Editor’s comment: Please note I am very reluctant to use the word “accident.” All my friends and scholars in the National and Local Safety Councils have convinced me to use the term “incident” to avoid anyone implying an “accident” means compensability. The word “incident” works much better—Please consider changing your “accident investigation” forms to reflect this concept.
Either way, when a catastrophic incident occurs, prompt and efficient collection of fresh evidence is critical to minimizing your liability exposure. If you don’t get evidence in 24 hours, it will rapidly disappear. As veteran defense lawyers, we tell clients and their investigators within 24 hours of the incident, if the fieldwork has not begun and progressed well, the evidence will almost certainly fade away.
You need to record weather conditions, emergency personnel, law enforcement, and other factors, which can quickly change the incident scene and may remove critical pieces of evidence. Witnesses’ memories of specific details begin to fade as the incident is no longer fresh. As time elapses following the incident, the who, what, when, where, why, and how of a catastrophic incident will rapidly disappear.
With proper planning and coordination, incident investigators can maximize the collection and preservation of critical pieces of evidence. At the same time, prompt action can minimize common investigation errors. The key is to develop a thorough method for collecting reliable, clear, and comprehensive information about an incident which will allow for an early evaluation of liability and damages.
COORDINATION OF THE INITIAL INVESTIGATION
It may be advisable to designate an “investigation coordinator” to oversee the initial investigation in order to eliminate confusion and redundancy. It is often prudent to promptly retain the services of a KCB&A attorney and our law firm with experience in handling the initial
investigation, as well as the defense of catastrophic incidents. The benefits of involving an attorney from the very beginning of the investigation include:
Coordination of investigative efforts to reduce duplicate and unnecessary investigation during the critical initial stages;
Assistance with the assignment and hiring of claims adjusters, incident reconstructionists, and other specialized investigators or experts;
Undertake necessary action to ensure the preservation of helpful evidence at the incident scene and to avoid spoliation of evidence;
Protection of all communications concerning the investigation via the attorney-client and attorney-work product privileges; and
Formulate an initial evaluation of the potential liability issues and gear the investigation toward the defense of impending litigation.
It is helpful to have a list of attorneys and law firms prepared in advance by state and locality, along with contact information. Retain KCB&A in IL, IN, WI, IA and MI, as we have the resources which are required to promptly coordinate the investigation and the experience to ensure the necessary
components are in place to successfully complete the initial investigation, including retention of our great team of medical, forensic and other experts.
THE INITIAL INVESTIGATION
The first call usually comes from the employee, supervisor, company, or law enforcement officials.
Obtain preliminary facts from these individuals and entities, such as:
Whether the incident involved any injuries or fatalities.
Extent of property damage – to vehicles, equipment, buildings, and products.
Location, type, and configuration of incident scene.
Incident conditions, i.e., weather, time of day, lighting, etc.
Details of the incident, i.e., location of vehicles, equipment, buildings, or products involved, identification of witnesses, nature and extent of physical evidence, etc.
Existence of photographs or videotapes.
Immediately Notify Insured’s Management or Employer
Compile a list of home, office, fax, e-mail, pager, and cell phone contacts for the insured company officials who will serve as contacts and assist throughout the investigation.
Gather Data and Evidence at the Incident Site
Depending on the severity of the incident, consider promptly retaining an incident reconstructionist, engineer, or other experts/investigators can aid tremendously in determining exposure, event chronology, and necessary additional investigation. After obtaining the preliminary facts, the investigation moves to the scene of the incident where there are crucial pieces of evidence that must be secured and preserved as soon as possible.
Time is of the Essence
Get to the scene as soon as possible to determine the physical factors and/or conditions that may have played a role in causing the incident.
Construct a Chronology
Obtain statements from witnesses to determine the sequence of events. If the incident was a work site incident, obtain information on the directions of travel of each party to the point of injury.
Incident scene from various angles.
Resting position of equipment, products or other physical evidence involved.
Damage to all property, buildings, equipment, products or other physical evidence involved.
Pre-incident paths of the humans, vehicles and anything that records the path.
Area where debris landed.
Determine existence of security video—secure it to insure it isn’t taped-over.
Potential Police/Fire Department Computer Evidence.
Cell phone photographs/video.
Record Road, Traffic, Weather, and Lighting Conditions
Consider a potential Computer Forensic Expert
Preserve Cell Phones, iPads, etc.
Record Names and addresses of:
– Injured party(ies), co-workers, supervisors, other potential witnesses.
– Owners, drivers, and passengers of all vehicles involved.
– Owners of all other property involved.
Determine the location of each party before and after the incident.
Determine which parties sustained injuries.
Identify fatalities and try to determine whether they survived the incident for any period of time.
Secure the Incident Scene
Secure the incident scene in coordination with local law enforcement to prevent further incidents, injuries, damage, and to preserve the evidence.
A catastrophic incident can occur at any time. Conducting a thorough initial investigation is critical to preserve the evidence which will serve as the foundation of the ongoing investigation and potential litigation.
In order to conduct the initial investigation, claims handlers should prepare and plan the procedures for conducting the investigation in advance. It is advisable that claims adjusters compile emergency contact information for their insureds. A roster of attorneys and independent adjusters by state and locality should be kept to allow for immediate access to investigation coordinators and investigators after a major incident.
A prompt and thorough investigation will allow you to gain an advantage in avoiding mistakes, which could otherwise result in unfavorable factual surprises later on, during litigation. Investigating and preserving the evidence will enable you mitigate the damages by settling the case early; laying the foundation for a defense to avoid prolonged litigation; and the opportunity to reduce the risk of a negative outcome in the event the case goes to trial.
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Synopsis: Illinois Doc Reportedly Bills over $1M for Care to One Claimant!
Editor’s comment: In Ross v. Illinois Central Railroad Co., decided May 6, 2019, I was advised medical care from one physician was over $1M smackers! In the ruling, a former railroad employee sued the railroad under FELA, alleging he injured his back while attempting to board a moving train.
After investigating his claim, the railroad filed a 3rd-party complaint against Plaintiff's doctor for contribution.
The IL Appellate Court ruled the Circuit Court abused its discretion in finding settlement between Plaintiff and his doctor reached was entered into in good faith, especially as amount of settlement was far less than doctor's fair share of liability.
The Appellate Court further ruled the Circuit Court erred as a matter of law when it concluded the “common-interest” exception applied to prevent waiver of attorney-client privilege when Plaintiff and his doctor shared attorney-client privileged communications with each other.
Even when a common interest exists between parties, the client must, at time of disclosure, have an agreement with the receiving party that party will treat the information as privileged.
I appreciate your thoughts and comments. If you want the link to the ruling, send a reply.