QuestionI was hit by a man who has a history of blacking out and has diabetes, had dyalisis the day before h hit me. He says he blacked out at the wheel, he received a ticket for "Reckless Driving". I was hit on the drivers side and went in the air and landed with great force in a yard. I went to ER because I was having pain on the right side...neck, head, arm, wrist and fingers. They did a MRI, I did not get the results, they just said I had no broken bones and no apparent injuries.
I continued to have a lot of pain in the wrist and severe headaches, so I went to my personal doctor, he said the wrist was sprained and told me to rest it and gave me pain medication. The pain meds made me sick, I returned in 2 weeks the symptons still there and he referred me to orthopedic doctor. I am undergoing physical therapy per the orthopedic. Still having pain in fingers, wrist, arm and headaches. The therapist requesed the MRI and it showed Severe Dics Degeneration with endplate spurring. I have never had symptons before for this and never been to the doctor. They seem to think the impact made this condition flare up. They say a crash is harder for someone with this to take. SO, my question is....I am still having pain and may have flare ups in the future.....will the insurance still have to pay for my Pain & Suffering since they have found this pre-exsisting condition? And...do I have a chance of getting future medical since they say once they get me situated, it may flare up again in the future? AND...what would be reasonable. The accident happened on May 8, 2010....and I ahve not slept good since and I have had constant pain. I work in an office and I have had to modify my job and only do computer work for short periods of time because of the pain.
AnswerHi Gaye,
I am sorry to hear of your serious injuries, and even more sorry to inform you that you may not have a claim against the driver who hit you. There is no relief against a driver who "causes" an accident through no fault of his own. So your claim will go one of two ways.
If it were a small claim, then one can expect the driver's insurer to pay up and move on. BUT, your claim is NOT SMALL. You have serious injuries, and notwithstanding the fact that you may have had a preexisting condition, the tortfeasor can be held liable for lighting it up if it was asymptomatic (i.e. you had no pain or treatments for it).
Hence, I expect that your claim will involve proof that is out of the line of what we think claimants can do on their own. An attorney is required in order to get the proof of damages in line so that you get properly compensated. Take my word for it, Gaye, www.SettlementCentral.Com teaches self help insurance claims, and we would never encourage a visitor to use our service if his claim were in the same condition as yours.
An attorney is best for getting full compensation for a preexisting condition that is as complex as your case appears to be.
NOW, on to the basic issue: do you have any claim at all versus the other driver? The fact that the driver was cited is irrelevant: the officer's opinion as to fault is not admissible at trial. The fact that another vehicle caused an accident does not in and of itself equate to liability. In order to be liable, the other owner or driver must be negligent.
If a part fails in a vehicle and it causes an accident, then the driver is not at fault, UNLESS, of course, he knew or should have known about the part, OR he failed in his duties of maintenance.
Likewise, if a driver were to blackout, he is not liable UNLESS he knew or should have known that it was not safe to drive then because he had not eaten and his protein would be low, OR he had not theretofore been following his doctor's prescribed regimen of care.
As I say, in a small claim, his company may toss in some bucks and close the file. BUT I can guarantee you—and this is from three personal defenses raised versus my own clients in similar litigation—once this file transfers from the adjuster to the defense attorney, this defense will be raised.
So it will be up to your side to prove that this driver was at fault for one of the reasons I have cited just above. In the "discovery" process (interrogatories, depositions, etc.) you can expect that your attorney will examine all relevant medical records of the other driver. Often diabetes patients DO HAVE DRIVING RESTRICTIONS mentioned right there in the records. For certain your attorney will be able to show negligence if this guy had not eaten within a certain time before taking the wheel. The lack of protein is something ALL diabetes patients are counseled on and all are familiar with.
Now to answer your three questions.
#1. "Will the insurance still have to pay for my Pain & Suffering since they have found this pre-existing condition?
ANSWER: Absolutely. Do not worry about THIS aspect of your claim. When a preexisting condition is without symptoms, as in your case, we call that asymptomatic. And anyone whose negligence causes injury that triggers that condition to become painful, as in your case, is responsible for all the harm caused. This is called a "light-up" of a preexisting condition.
#2. "And...do I have a chance of getting future medical since they say once they get me situated, it may flare up again in the future?"
ANSWER: Absolutely. You get all damages proximately caused by the negligence of the tortfeasor. Part of those damages are future medical expenses, future pain and suffering, future wage loss, etc. The only caution here, is that such future damages do require a pretty solid level of proof, not just an off-the-cuff opinion.
#3. "AND...what would be reasonable?"
ANSWER: This is way premature. No one has any idea because no one has yet given a prognosis. What can you expect from here on out? Plus, of course, as it stands, you will have to prove negligence before you can expect anything for pain and suffering.
In conclusion, Gaye, I suggest that you find an attorney ASAP. With the contingency fee system, there is no risk, but if you continue on your own, there is GREAT RISK you will muck it up. Let someone who knows what she is doing get in there and work for you.
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
