Auto Insurance Claims: traumatic inducement of heart problems or cancer?, traumatic heart injury, burden of proof


Question
i am a 33 year old mother of three, and so happily married:)  a year and a half ago i was in a car accident, we were struck from behind from a car goin 45 mph and thrown into the car infront of us.  i had severe whiplash and tmj and broke 3 teeth... 4 months ago i was diagnosed with non ischemic hypertrophic cardiomyopathy.  2 days ago i found out i might have cancer.  is there a connection in all of this????

Answer
Hi Eldercorey23,

You suffered a severe crash, and I have an idea that you have not created a well-developed case for your deserved financial recovery.  Hence, I am going to give you a lot of extra time in hopes to get you on the right path.   I want you to do three things.

FIRST, explore some possible consequences of that trauma in causing four medical problems.  (a) traumatic inducement of your heart problem via myocardial contusion; (b) possible traumatic etiology for cancer; (c) traumatic brain injury and post-concussive syndrome; and (d) headaches via your TMJ.

SECOND, learn about the low level threshold of proof in civil cases and try to educate your doctors about that so they will feel more inclined to make an opinion in your favor once they understand that something need be only more likely than not true, and need not be scientifically provable.  This means that their opinion can be made on the basis of just crossing the fifty yard line, NOT having to score a touchdown.  

THIRD, I want you to consider bringing in an attorney, especially if you have post-concussive syndrome.

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Now, Corey, let's get started with the first part.  FIRST, explore some possible consequences of that trauma in causing traumatic inducement of your heart problem via myocardial contusion or possible traumatic etiology for cancer.

You will find resistance on the part of your doctors in making any connections between your trauma and these two conditions.  But you can show the heart specialist an opinion piece by Dr. Eric Berlin, MD in which he states that trauma can be the cause of heart problems.  I will leave the citation to the article below.

I do not think that your heart doctor has any concept whatsoever of how hard your impact was.  He does not understand that you may have suffered a severe compression or bruising of your chest wall, and hence you could have suffered a myocardial contusion.  

Myocardial contusion refers to a bruising of the heart. It is usually due to an injury to the chest wall.  Nonpenetrating injuries involve crush injuries, or compression of the chest. This type of injury is often a result of motor vehicle accidents or explosions. Alone or in combination, these forces can cause a myocardial contusion.

Injuries to the heart can be severe even if there is no external sign of chest trauma. Signs and symptoms can include:
arrhythmias, or irregular heartbeats;
severe chest pain;
shortness of breath.

Here is the citation to the article by Dr. Berlin.  
http://www.medicineonline.com/articles/t/2/Traumatic-Heart-Disease/Myocardial-Co...

Maybe you can do some additional research on the heart problems, but for sure you will have to do research on any cancer connection.  Here is what to look for when you do the research.  Use keywords like trauma, accident, bodily injuries, and then add in either heart or cancer.  Put in the particular kind of cancer that you are diagnosed with.  

Ask your doctors about those kinds of relationships between trauma and your condition. This is the introduction to the next topic: education of your doctor as to the low threshold of proof required in civil cases.  

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OK, Corey, this is not something any patient is comfortable with, but all too often doctors will not support a patient who needs an opinion tying accident trauma to a medical condition—i.e. coming right out and stating that the accident trauma is MOST LIKELY the cause of the patient's condition.  

Part of the reason why is likely a misunderstanding of the relaxed burden of proof in civil law cases, as opposed to the higher scientific standards of proof that doctors often use in their practices.  

For example, it is NOT necessary that the doctor's opinion be to the high standard of scientific proof; it is sufficient that she believes her opinion is more likely true than not.  This is called the preponderance of the evidence.  That is the standard to which the doctor must make her opinion.  

Chances are that you will never gather up the courage to mention this to your doctor, BUT if you do see an opinion or diagnosis that is way too conservative, why not bring this up to the doctor.  Have your doctor visit this site to see how trial lawyers were instructed to educate the doctors of their clients when the doctors were using a standard of proof that was too stringent.  Maybe you could just give this link to your doctor and let her educate herself.  http://statetrialattorneys.org/CLE/medicalburdenofproof.php

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Now, Corey, I am going on to the two topics that you did not ask me about, but which I think you should consider.  These two are: (a) traumatic brain injury and post-concussive syndrome; and (b) headaches via your TMJ.

Head injury problems: post-concussive syndrome.
Here is some background on a moderate head injury.  Take a look at the following list and tell yourself how many of these symptoms does your son honestly still have.

How hard did you hit your head?  It sounds like a pretty hard whack if you knocked your teeth out.  So, let’s first address that topic of the most significant potential injury, your traumatic brain injury.  Research that term, and especially post concussive syndrome and you will see some of the symptoms of that condition.  My bet is that you DO HAVE A MODERATE BRAIN INJURY.

Let’s first examine what is a concussion and what is a loss of consciousness.  You DID HAVE A CONCUSSION, that much is for sure, since you hit your head.  So traumatic brain injury is in play in this claim since you suffered a brain concussion.  

Post-concussion syndrome, also known as post concussive syndrome or PCS, is a set of symptoms that a person may experience for weeks, months, or even years after a concussion, a mild form of traumatic brain injury. As many as 50% of patients who have experienced concussion have PCS, and some sources say as many as 90% of patients experience post concussion symptoms.   People who have had concussions may experience physical, mental, or emotional symptoms. Symptoms can appear immediately or weeks to months after the initial injury.


Physical symptoms can include:
•   headache
•   dizziness
•   impaired balance
•   nausea and/or vomiting
•   fatigue or sleepiness
•   inability to sleep
•   decreased libido
•   sensitivity to noise or light
•   ringing in the ears
•   double or blurred vision
•   decreased sense of taste, smell, or hearing

Emotional symptoms may include:
•   irritability
•   anxiety
•   restlessness
•   depression
•   lack of emotion
•   emotional lability or mood swings
•   lack of ability to tolerate stress or alcohol
•   aggression

Cognitive or mental symptoms can include:
•   amnesia or difficulty remembering things
•   confusion or impaired cognition
•   impaired judgment
•   slowed cognitive processing
•   difficulty with abstract thinking
•   difficulty concentrating
•   decrease in work performance
•   decrease in social skills


If you do have some of these symptoms, you need to get a workup by a neuropsychologist or at the least by a neurologist.  Brain injury is nothing to fool around with, and either you get your doctor to refer you, or hire an attorney who has handled brain injury cases and get her to refer you.  

Do NOT let this pass by if you have these symptoms, Corey.   This is the only time you can get compensated for the damages you are suffering.  

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TMJ—temporomandibular joint syndrome: possible source for any HEADACHES.  You have the hard trauma for TMJ, and the diagnosis, but two-bits says you are not being treated for headaches that could come from the TMJ.  

This is another term I want you to research.  When an accident victim strikes her head, there is a good possibility that the disc in the condyle, or jaw joint disc, can be displaced.  One of the consequences of jaw joint displacement is headaches.  All too often in my practice, the doctors treated headaches as having originated from cervical problems, when in fact, they were due to a TMJ.  
http://www.lectlaw.com/med/med04.htm
http://en.wikipedia.org/wiki/Temporomandibular_joint_disorder
http://www.tmjdoctorofmaryland.com/

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THIRD, I want you to consider bringing in an attorney, especially if you have post-concussive syndrome.  The head injury part of this makes me want to recommend an attorney rather than doing this on your own.

I am not condemning you, Corey, but I do want you to see how ABSOLUTELY WRONG it is to think that you could settle a head injury claim on your own.  You MUST get an attorney ASAP, and insist upon one who has experience with head injuries.  BUT make sure you abide by the fee negotiation instructions I am going to give to you below.  If the tortfeasor has only minimal policy limits, then why should you pay an attorney a HUGE fee to get those limits when a blind dog with a note in its mouth could do the same thing?  See Attorney Fee Negotiations that I will add at the end of this answer.

The best known insurance claims legal expert on the Internet is Dr. Settlement—he teaches do it yourself personal injury insurance settlements at www.SettlementCentral.Com   So if I give you some advice on this, I hope you will listen a bit.  I would not even handle my own insurance claim if I had a head injury.  There is just too much at stake that I could mess up, and so I would hire an attorney even for my own claim.

Also, Corey, please consider this for a moment, if the best self help insurance claim site is www.SettlementCentral.Com that teaches personal injury settlements, and if that site NEVER allows membership for head injury claims, don't you think they might have a reason to refuse membership to those with head injuries?  There is just too much that needs to be done NOW, and not wait in head injury cases.  

And we are talking here not just about general medical help, we are talking about building the value of the claim.  First, the attorney does have good experience at choosing a quality specialist doctor.  Second, the attorney is skilled at recording evidence that will surely be missed by you and by your doctor.  She will work with you to get down the evidence of brain injury impacts on your son's life.  She will also ensure that you get the best care, and she knows sources of $$ that you have not thought of.

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BEWARE if the adjuster wants to settle now.
Let's take a look at why the adjuster wants a quick settlement.  By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters?  Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm

The insurance adjuster might try to settle the claim early, BEFORE the injury brings big money.  Six months to one year from now, if you are still suffering from post-concussive syndrome, then the value of your claim increases dramatically.  I would not bet on this serious injury improving on its own in the next six months.  If the adjuster can get the victim to settle early, before that injury drags on into one year or more, he can save a lot of money.  

Here is page from my website that shows in detail why you should never make an early personal injury insurance claims settlement http://www.settlementcentral.com/page0211.htm

And, of course, once you settle, THAT IS IT: you will never see another dime in pain and suffering or auto insurance medical care.

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Attorney Fee Negotiations.
What if the tortfeasor has only $25,000 in policy limits?  You could get that amount simply by sending the adjuster the medical reports and a three paragraph demand letter.  Why pay an attorney many thousands of dollars to do that?  

Yet I am telling you to get an attorney ASAP.  So why not wait until you see what the limits are?  Because the participation of the attorney right NOW is important.  You can deal with fees by contracting for two contingencies in the agreement with the attorney.

Have your attorney insert a clause that should the tortfeasor's limits be only $25,000, then the fees on that first $25K will be at $250 an hour, not to exceed $2,500..  It depends on how much Underinsured Motorist Coverage (UIM) you carry for that topic to enter into the contract discussion.  Call your agent and pose three scenarios to see what your insurer thinks will be available for your UIM claim in each of these scenarios.  Reason being, you will have to deduct the tortfeasor's limits off your UIM limits in most states.  

For example, in most states, if you have only $25K in UIM limits, and the tortfeasor has $25K in BI (bodily injury) limits, then you will have zero available on a UIM claim $25K minus $25K).  If your UIM limits were $50K, you would have $25K in UIM limits after deducting the tortfeasor's limits ($50K minus $25K), and so on.  Does that make sense, Corey?  Anyway, before you approach a meeting with the prospective attorney, here are the three scenarios to ask your own insurance agent about.  How much UIM coverage will you have in each of the following cases?
A.   In the event the tortfeasor has limits of only $25K (or less if your state minimums are less).
B.   In the event the tortfeasor has limits of $50K.
C.   In the event the tortfeasor has limits of $100k or more.

Once you have that info, you will be in a better position to negotiate the attorney fees.  Do NOT be afraid to bring up these fee ideas.  Mention it now, because once you agree to any one-third contingency fee, it will be difficult to change the agreement to something more to your liking.


That is about is, Corey.  I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.

Best Wishes,

Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com