The insurer will expedite an amicable medical examination and will have the victim examined by one of his medical advisers. This practice raises a
Legitimate doubt about the equality of arms between the parties:
– The doctor who assesses the consequences of the victim is the employee, or agent, of the insurer
– The victim is most often not assisted by a medical adviser or an independent lawyer Napoli Shkolnik
The medical adviser specifies in his report if the state of the victim is consolidated, that is to say if its state is stabilized and allows the evaluation of its prejudices.
If not, the medical advisor will review the victim within a period of time when he considers that it will be consolidated. He sends the insurer a technical note with provisional conclusions. This note is not communicated to the victim when it allows him to request a fair and consistent provision.
If the injured person’s condition is consolidated, he draws detailed medico-legal conclusions allowing the insurer to assess the compensation. The report is sent to the insurer and the victim.
The Badinter law imposes on the insurer deadlines to submit an offer of compensation: 8 months from the accident in case of consolidation; if not 5 months after the moment when he knows the state of consolidation, ie 5 months after the report, after having paid a provision (cash advance on compensation).
The victim can accept or refuse the offer of the insurer.
In case of agreement, it signs a record of transaction that ends the dispute and specifies the amount of the final compensation. The victim does not
will be able to return on the defined amount.
In the event of a refusal, she can negotiate with the insurer by filing proof of her damages or take legal action to decide the amount.
The studies, as well as the judicial practice, show that for the same issue, the monetary compensation will be greater, significantly, if a judge decides the subject of the dispute.
The judicialization of a case (that is to say to seize the competent Court so that it judges of the amount of the compensation) can lengthen the time of compensation (time of the procedure) but offers to the victim the possibility to see his file decided by an impartial judge.
The referral to the court can be done at any moment of the file:
° referred expert and / or provision : this urgent and short procedure allows to request from a judge the appointment of an independent judicial expert who will assess the damages of the victim. It is also possible to ask the judge to fix the amount of the provision to be paid by the insurer (advance).
These requests can be made before or after the medical examination by the insurer.
° Judicial expertise : the appointed expert must be impartial. It is the party who will have requested the expertise (the victim most of the time) to deposit a deposit (a sum of money) to the Tribunal so that the expertise can be held. The expert summons the parties (the victim, his lawyer, his doctor, the insurer, his lawyer). The expert report will condition the entire compensation procedure, so it is essential to be assisted by your own
Medical adviser and his own lawyer who must both independent of the insurer, especially as the latter will send on the spot his medical adviser and possibly his lawyer. The expert will study the medical file of the victim and will examine it. The parties will then discuss the medico-legal conclusions. The expert will then write only his report which he will send to the parties (pre report) so that they can possibly bring him their remarks or opinions. The expert then drafts a final report which is also sent to the court.
° Liquidation of the damage: after an amicable examination or an expert report, the court can rule on the final compensation to the victim. It is up to her to bring proof of her prejudices.
In all cases, compensation for a bodily injury involves an assessment of damages (amicable examination or forensic examination), a consolidated statement and an offer from the insurer.