Question Thank you in advance for your time and advice. We live in Florida. In the fall of 2004, while away at college, my daughter was the passenger in a 2 car collision in which the driver of the car in which she was riding was found to be at fault (she was doing a U-turn and was hit by an oncoming car). My daughter was the only one seriously injured. She was taken by ambulance to the nearest hospital where she had CT scans. She suffered multiple facial fractures as well as extensive facial soft tissue swelling and hemorrhage. We brought her back home from college in order to have a local surgeon do her operation. The surgery was successful, and after 2 weeks she did return to classes, although she asked for and received a medical withdrawal from her most difficult class. Starting shortly after the accident, she began having nightmares and severe anxiety riding in any car with anyone if she wasn’t driving. She saw a counselor at school and was diagnosed with PTSD and put on antidepressants. She is still taking them today. We have not gone forward with a claim until now because we wanted to wait and see what, if any, longer term repercussions she might have from this accident. The questions I have about filing a claim for her are the following: First, in your opinion, is this a matter that you think we are able to resolve ourselves, or should we consult a lawyer? Second, the driver’s family had only a small amount of bodily injury coverage. I believe it was no more than $15,000 which was apparently exhausted during the course of paying our daughter’s medical bills. The driver has auto insurance with the same company that we do. (The bodily injury coverage on our policy is 100,000/300,000.) If we were to ask for a settlement on our own (i.e. not going through a lawyer), how do we estimate what is fair? We were not out of pocket for most of the medical bills; they went straight to the insurance company. We did incur other related expenses, however. From the information that I have, the cost of her care would total approximately $20,000. Thanks again for your advice.
AnswerHi Jane,
First off, please accept my apologies for the delay in answering your question. There was confusion between me and allexperts.com with respect to honoring my daily limit of questions, and rather than sending yours on to another expert, they left it in the queue. I have written to them about that, so hopefully no one else will have that experience. Plus, as a sort of compensation for the delay, please feel free to ask me any question whatsoever in a follow-up.
I will answer your questions as asked, but if you should have any additional questions whatsoever about your daughter’s personal injury claim, the least I can do is to stand by for backup to give you support with information you might need to help her. So feel free to ask again.
What I will need from you in response to this is some additional information, as requested below. Just send it as a follow-up and I will PROMPTLY get back to you.
You are a good Mother to take this on by yourself, but I do not know whether you should try to resolve all issues alone—unless you gain access to reliable information on personal injury claims and forms and letters that must be sent.
First off, let’s look at the assets available, since your daughter’s claim will exhaust the tortfeasor’s policy limits. You mentioned that you too have insurance, with what you described as bodily injury coverage of $100,000. My hope is that you meant Underinsured Motorist Coverage (UIM). Some people waive the UIM coverage, but I hope you were not one of them.
So, please let me know about that issue. I also want to know the situation with the tortfeasor: is this a student who drives a family car? What assets does the student have, and if there is any way I can get the facts to show a family car doctrine case for you, what assets do the parents have? The reason to ask is that your daughter’s case could have substantial value above your UIM limits, and hence one would want to know if there are any assets to go after. That will influence my advice regarding hiring an attorney.
Next, who paid the medical bills—your insurance or her insurance? If it was hers, that could be an error. You could explore having your insurance pay the bills, or better yet, your daughter’s health insurance. The reason is that if your insurance or the health insurance pays those bills, then you will get their subrogation claim waived, and the full $15K will go to your daughter. Please read up on subrogation here.
Defending insurance subrogation http://www.settlementcentral.com/page0459.htm claims against insurance settlements.
Do not do anything about this now, but just give me the total medicals to date, the type of doctor, and who has paid them and what is yet outstanding. Also let me know if she has any health insurance.
I do not want to disturb you, but I believe your daughter likely had a mild brain injury because of the trauma to her head. This IS NOT THE SAME AS THE PTSD.
MILD BRAIN INJURY—POST CONCUSSIVE SYNDROME
So, let’s first address that topic of the most significant potential injury, a potential 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 your daughter did suffer A MILD BRAIN INJURY. It is untreated for two reasons.
First off, she most likely denied any loss of consciousness, right? Second, if there is no loss of consciousness and no complaints of the symptoms of brain injury, most doctors who are called upon to treat injuries will not make referrals to have the patient tested for brain injury.
Let’s first examine what is a concussion and what is a loss of consciousness. If her injuries to the head came from trauma, then she likely DID HAVE A CONCUSSION, that much is for sure. So traumatic brain injury is in play in her claim since she likely 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.
Now I have collected some information that I want you and your daughter to think about. See if any of this seems familiar. 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
LOSS OF CONSCIOUSNESS—not essential to diagnosis of post concussive syndrome, but sometimes the length of time unconscious will be used to judge the degree of the brain injury.
The patient is typically the primary source who is asked the most significant question: “Did you lose consciousness as a result of your injury?” Most of my clients who actually later recalled that they did not remember moments just after being struck in the head, AT FIRST DENIED ANY LOSS OF CONSCIOUSNESS TO THE POLICE AND TO THE EMERGENCY ROOM.
WHY? First, most people equate loss of consciousness with being unconscious for some time. But in fact, “loss of consciousness” means loss of conscious awareness. Hence, loss of consciousness can range from being briefly dazed to several days of coma. In fact, in order for a brain injury victim to answer such a question, they would have to undergo extensive examination recollecting past events. Any change in mental state can be significant in understanding a patient's condition and if loss of memory (amnesia) occurred immediately before or after the trauma.
When she struck her head, probably there was a brief loss of consciousness. Even if she never before reported it, now is the time to correct her records with a letter to her doctor explaining that she DID have a brief loss of consciousness.
Loss of Consciousness http://www.settlementcentral.com/page0134.htm After Accident or Injury
How do you correct records with the medical providers and the insurance adjusters? http://www.settlementcentral.com/page7004.htm Letters to insurance claim adjuster.
This page talks about how to confirm conversations with the insurance adjuster
http://www.settlementcentral.com/page0460.htm with loss of consciousness notify the insurance adjuster as soon as you recall it—do NOT wait until you send your demand letter.
Finally, let me know what surgery she had, what pains and suffering she has endured, what her injuries were, and what her prognosis is.
With all of that information, get back to me and we will go from there with an suggestion to do this on your own or to hire an attorney. The reason I need all of the information is to judge the value of the claim so that I can know if an attorney is needed. If the value is easily in excess of $125,000, then you may not need an attorney since your UIM should settle with just a demand letter. Why pay an attorney $33,000 to do what a blind dog with a note in its mouth could do?
Best wishes,
Dr. Settlement, J.D. (Juris Doctor)
www.settlementcentral.com
