Check out Some of The Commonly Asked Questions Our Law Office Receives
Should I Go to The Doctor to Get Checked for Injuries?
Yes. Many people who are involved in an automobile accident are too embarrassed to seek medical treatment. The initial bumps and bruises do not seem serious or the onset of the symptoms does not immediately occur.
After an accident, an initial evaluation at a local emergency room is recommended. X-rays can be performed which will generally rule out broken bones or fractures. Muscle relaxers and anti-inflammatory medications can be prescribed to address muscle strains or pulls.
Of course, not every accident produces injury. However, if the onset of a serious injury is delayed, the failure to have a medical complaint recorded can affect your chances of recovery. Back and neck injuries like herniated discs are not always immediately determinable. They are often initially diagnosed as "soft tissue" injuries before an MRI or CT scan reveals a disc injury. Normal X-ray film is generally not diagnostic of disc injuries.
The mechanism of injury may not always be obvious to a person injured in an automobile accident. For instance, there are many documented cases of carpal tunnel syndrome caused by a person tightly clenching the steering wheel during an accident. Since the wrists may not have slammed into a part of the car, the person involved in the injury may not associate this problem with the car accident until it is too late to make a claim.
Moreover, many insurance adjusters will refuse to pay claims when there has been a delay in receiving treatment or when large gaps in the treatment have occurred. Even though there are explainable and legitimate reasons for the delay or gap in treatment, victims may end up either uncompensated or under-compensated.
It is not uncommon for accident victims to leave the scene of the accident feeling that they were uninjured and wake up the next day or two later with extreme soreness, tightness or muscle spasm.
In these instances, immediate medical attention should be sought from your doctor.
Again, documentation of the onset of injury is important in establishing a causal link between an accident and an injury.
How Do Insurance Adjusters Settle Cases?
Documentation, documentation, documentation! Insurance companies require a lot of documentation before they offer to settle a case. This documentation may be in the form of witness statements, accident reports, other insurance policies, and medical records and bills. It is important to understand the process used by adjusters to evaluate cases if your goal is to settle the case.
Without written proof of the loss, insurance companies will not offer to settle the case. It is simply not enough to claim that an injury caused you severe pain which limited your ability to work, but you failed to see a doctor about the pain. In some instances, the excuses used to justify not going to the doctor for a serious injury may work at trial, but it will not work with an insurance adjuster in considering settlement.
Thus, if your injuries are serious enough to warrant medical care, then you should go to the doctor for treatment. That treatment not only helps you get better, but it is also an objective written documentation that an insurance adjuster will consider in evaluating your case. Missing scheduled doctor's appointments will hurt you in two ways. First, your injury recovery time may be prolonged, and second, it sends the message to the insurance adjuster that your injuries and pain are not as bad as you claim.
In considering amounts for pain and suffering, insurance adjusters usually have some preset formula they utilize. For instance, some companies will routinely only offer between $1,000-$1,500 per month for every documented month of pain and suffering caused by the injury. By documented month, they mean every month a documented visit to your physician for treatment can be proven. By this formula, if you have a documented 10-month soft tissue injury, they may offer you $10,000 plus your out-of-pocket medical expenses and wages to settle the case.
Other insurance companies use sophisticated computer-generated models to settle cases. The adjuster plugs in the particular documented information in the case and the computer spit out an offer of settlement. Companies that use these programs usually make low offers of settlement.
Items such as lost wages can also present problems to adjusters during settlement negotiations. If the nature of your income is commission-based or based on some other incentive, adjusters have a difficult time paying for wages that are not clearly documented as being lost. It is important to provide your attorney with all potential information regarding your lost wages if you intend to claim a loss of wages. W-2 forms, tax returns, paycheck stubs and any other historical earnings records should be reviewed.
Keep track of prescription records and bills. Hospital and physician charges and records should also be kept from the very first treatment. It is not enough to tell the adjuster about the bills and treatment without providing the written documentation which will prove your claim.
Once you have all of the available written documentation, which will prove your claim, a settlement brochure can be forwarded to the adjuster by your attorney to the insurance adjuster. This will give that adjuster a complete set of records in one package which will make it easier for them to review and evaluate. A settlement offer should then be forthcoming from the adjuster.
How Do You Determine the Value of My Case?
There are several elements of damages that courts allow plaintiffs to recover when they are the victim of a personal injury. Pain and suffering and mental anguish are in a category called general damages.
Lost wages and medical expenses are called special damages.
The value of general damages in most personal injury cases is determined by a combination of the lawyer's past experience with the same type of cases and by reviewing the case law (jurisprudence) on similar types of injuries. Virtually every conceivable type of personal injury has been previously decided by juries and courts prior to the time you filed your case.
Thus, a range between high awards and low awards exists which establishes the value of the case. Ultimately, if a jury or judge awards an amount that is significantly higher or lower than the prior cases awarded, the court of appeals can increase or decrease the award. In fact, for most injuries, the courts of appeal have established a minimum to be awarded for pain and suffering damages when that injury occurs.
The courts also establish rules for the recovery of special damages like lost wages. Many states allow the plaintiff to recover the gross amount of the wages they would have received before taxes would be taken out. However, future lost wage awards are usually required to be reduced to the present value. Otherwise, an award of future wages could be invested to make more than a person would make in the future.
Courts may also allow the plaintiff to recover medical expenses from the person who injures them even if the plaintiff's own medical insurance paid for those medical expenses and the plaintiff did not have "out of pocket" expenses. In those instances, the plaintiff's medical insurer may have a lien or right of recovery against the proceeds the plaintiff receives from the party who injures him.
Once the range for the gross value is determined, other factors should then be considered to determine the value at which the case can settle, if the parties are willing to settle. For instance, what are the chances of proving liability? If the chances of recovery are only 50%, then the range of value should be reduced by a number close to 50% for purposes of considering a settlement. The fault of the plaintiff or the fault of a third party should also be considered in evaluating the case.
Most jurisdictions require that the recovery of the plaintiff be reduced by the fault of the plaintiff or the fault of third parties. Thus, for purposes of evaluating the case for settlement, this "other" fault must be considered.
If the case proceeds to trial and the plaintiff prevails, legal interest is also usually awarded to the plaintiff. This can be a significant amount if the case is a few years old. Legal interest is not awarded if the case is settled. In some states and under certain circumstances, attorney's fees and court costs can also be awarded to the plaintiff who prevails at trial. These sums should be made part of any valuation made by your attorney.
All of these factors should be discussed with your attorney to make an intelligent and reliable decision regarding the prospect of settlement or trial.
How Do I Know if I Have a Fair Settlement Offer?
Most cases settle out of court before proceeding to trial. However, not all cases settle for what they should. Sometimes, the plaintiff ends up settling the case for a lot less than the case is worth. Other times, the defense pays a premium to resolve the case. How are you supposed to know if the settlement offer being made is fair?
Some say that the measure of a good settlement is when both parties walk away from the settlement unhappy. This means that the defendant paid more than he wanted to pay, and the plaintiff accepted less than he wanted to accept. Several factors can provide guidance on whether the settlement should be accepted. In general, if you can get close to the judgment value of the case in the settlement, then it should be considered a very good settlement.
One of the first considerations that attorneys and clients should factor in is the chance of prevailing on the issue of liability. If the other side is clearly at fault, then a settlement offer should not be decreased because of the risk of losing the case. If the plaintiff has only a 60% chance of prevailing on liability, he may want to consider taking 40% less in the settlement.
However, some cases do not involve clear-cut issues of fault. Often, the fault involved in a personal injury action may be spread around. In other words, more than one party or person may be responsible for the plaintiff's injuries.
In cases involving the fault of more than one party, any settlement offer must account for that fault. This is difficult if one of the parties at fault is not solvent or otherwise cannot make a contribution toward settlement. The fault of the plaintiff must also be factored into any settlement offer if the plaintiff is partly responsible for his own injuries. Thus, if the fault of others, including the plaintiff, is reasonably evaluated to approximate 20%, then the settling defendant should offer close to 80% of the plaintiff's damages in the settlement.
Another important factor to consider in assessing the fairness of a settlement offer is the venue (the court jurisdiction) in which the action is pending. Some jurisdictions draw from jury pools that are more conservative or liberal than others. If the court in which the case is pending draws from a more liberal jury pool, then the settlement offer should take that factor into account by being on the higher end of the range of possible judgments to account for the fact that liberal juries award more money to injured persons.
Most settlement offers will not take into account judicial interest. Judicial interest is awarded to the plaintiff who wins at trial. In an old case, the interest in the judgment can be substantial. However, most defendants will not pay interest in the settlement.
Unfortunately, the financial need of the plaintiff can result in a diminished recovery. Defendants know that in some cases, they can simply "wait it out," and the plaintiff will take a lot less now because he cannot afford to wait the period of years before the case proceeds to trial. If the defendant knows that both the attorney and client are willing to wait as long as it takes to recover the maximum amount of money, then they are more willing to present a higher settlement offer.
In serious injury cases, you should consult with an attorney before accepting any settlement offer made by the other.