QuestionI was hit by a car while running last month. I was on the sidewalk at the time of the accident and was struck by a car pulling out of a driveway. I was briefly knocked unconscious, but suffered no permanant damage. I was sore and had minor headaches for the next few days or so, but didn't have to miss any work. The hospital bills just arrived and came to nearly $5,000. I have yet to file a claim with the guy's insurance company. Am I entitled to anything more than the $5000 in medical expenses?
Also, I'm confused about the process as I've never had to file a claim before. Does my health insurance company need to be involved in this or not?
AnswerHi Clark,
Please accept my sincere apologies for the delay in answering your question. I was not asleep at the switch: rather, I just had to put my beloved Peke dog, Sebastian ahead of all volunteer and other work. He recently developed a swelling and ulceration in his eye, even though he is only four years old. I spent a lot of time taking him in for care and eventually for surgery. Things will work out when they take off the patches. Side note: we should all be amazed at the talent the vets have: they can do any number of tasks, whereas human doctors are pretty limited. Anyway, thought you would like to know that I was not just ignoring you.
Now, on to your questions.
You have three questions, but I am going to add a fourth topic: follow-up on the brain injury.
In brief answer to your topics, I will discuss the following four points:
#1. ABSOLUTELY YES, you are entitled to general damages for pain and suffering, etc
#2. Confusion on the process is natural and common. I will give you some homework;
#3. Your health insurance may want to subrogate against your award, see below;
#4. You need to get tested for post-concussive injury, aka traumatic brain injury.
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#1. INTRODUCTION TO ELEMENTS OF YOUR DAMAGES; SIGNIFICANT DAMAGES
We consider the damages in three categories: special damages, general damages, and future damages (which will be both special and general). You are entitled to ALL THREE, including the aggravation of any preexisting condition you might have had.
Special damages are things that are capable of ascertainment by calculation or documentation. These include such topics as medical and chiropractic expenses, appliances (crutch, or cervical collar, or dental appliance for a jaw joint claim), physical therapy, lost wages, transportation to and from medical appointments, hired chore and personal help, and the like. For example, you mentioned a hospital bill of around $5K. That would be included within special damages.
General damages are for pain and suffering, loss of enjoyment of life, severe emotional distress, and the like.
Usually general damages are the “wild card” in the settlement, and that is where the negotiation centers. Assuming that they agree to the special damages, what is left is to argue about the value of the claim for the suffering that you have and will endure.
FUTURE DAMAGES—surgery in five years?
Your accident sounds like a pretty good hard crash (based upon your description of the injuries involved), and thus you might have a settlement attempted by the adjuster fairly soon, but at the same time, you need to consider the long term prognosis from your doctor.
Yes, you might feel “fine”now, but traumatic brain injury cases are nothing to take lightly. As any Internet research will show, post concussive injury and traumatic brain injury are both well-described on line. See, for example: http://en.wikipedia.org/wiki/Traumatic_brain_injury
My guess is that any time one suffers traumatic brain injury, there are bound to be some residuals. It may take treatment in the future to help you, and I want you to BE SURE that you are not shorting yourself by settling too soon.
Whether it deals with brain damage or physical injury, any settlement should also account for the probability of future damages. Part of the key to making a fair settlement is to be sure the doctor includes some specifically discussed future damages.
Future damages (which will be both special and general) will be paid ONLY UPON A FIRM COMMITMENT by the doctor. Your doctor cannot just state that you will need some additional care in the future, or that a surgery is “POSSIBLE”. NO, he has to make it an unambiguous statement of need: a firm prediction that you will encounter problems in the future “on a more likely than not basis” (that latter being the standard of proof for medical testimony). This should be a SPECIAL paragraph or two in his prognosis.
You doctor does not need to give a firm statement of costs if he is not comfortable in doing so. But maybe he can tell what a course of treatment would be. For example, it is easy to know future costs if there is an additional course of physical therapy treatment estimate; and one could estimate the costs of various surgeries; and one can make an estimated requirement for additional chiropractic care.
Thus, in future damages, you will include both the estimated cost of a course of treatment AND the pain and suffering and loss of enjoyment of life that will be experienced by the predicted condition cited in your doctor’s prognosis.
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#2. Confusion on the process is natural and common. I promised to give you some homework; and so here it is.
Learn how to settle your own personal injury insurance claim AND DO IT!
DO IT YOURSELF INSURANCE CLAIM SETTLEMENTS
Learn how to submit and settle your own personal injury insurance claims—DO IT YOURSELF SETTLEMENTS. Here is a series of pages that you can review. Take what makes sense to you and don't worry about the rest. Just get a flavor of how the system works without spending a ton of time right now. Some of these are for autos, but I am going to give them to you anyway. For example, the ones dealing with recorded statements might give you some idea of what to expect. BTW, you did a good thing to come up with that excuse not to be recorded.
Overview Tort Law Personal Injury Legal Claims http://www.settlementcentral.com/page3000.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
Medical Care Documentation-the Key to Successful Personal Injury Insurance Claim Settlements http://www.settlementcentral.com/page0217.htm
Keys to a MAXIMUM INSURANCE INJURY CLAIM SETTLEMENT http://www.settlementcentral.com/page0089.htm
Use a Confidential Personal Injury Diary for TOP DOLLAR Insurance Claim Settlements http://www.settlementcentral.com/page0208.htm
Outline of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0190.htm
Detailed listing of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0207.htm
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
Responding to Settlement Offer From Insurance Claims Adjuster http://www.settlementcentral.com/page0244.htm
Do It Yourself Advantages, or do these claims need an attorney? As for an ATTORNEY, this does not seem to be a case that involves any legal issues in dispute nor any large or complex damages. Why should you pay someone one-third to do what you can do yourself? Do-It-Yourself Personal Injury Claims; Eliminate Personal Injury Attorneys' Fees; Save Thousands of Dollars Settling Your Own Insurance Claim http://www.settlementcentral.com/page3011.htm
Without having to join my website, I have given a lot of free information on handling insurance claims without having to join as a member. Read the module at "5 Easy Steps to Do-it-Yourself Insurance Claim Settlement" http://www.settlementcentral.com/page0102.htm
This stuff is not rocket science, but it will take some effort on your part to read and cut and paste letter examples and to communicate. But hundreds of people are doing it each day, and they are getting good results.
What if you get only two-thirds the way to your settlement goal? Well, you can get as big a settlement as you can and then turn it over to an attorney and save a lot of fees. Thus, you could go it alone just to get an insurance settlement offer, and then take that insurance settlement offer to a personal injury attorney, thus exempting the amount of the offer from her fees. Do It Yourself Personal Injury Settlement Offer Reduces Personal Injury Attorney Fees http://www.settlementcentral.com/page0109.htm
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#3. Your health insurance may want to subrogate against your award.
First, let’s define what is at stake here. The health insurance company may want to recoup some of its money by piggybacking on your claim. We call this subrogation.
Subrogation is how your own insurance company will try to get repaid of the top of your insurance settlement for personal injuries. Here is some background information.
http://www.settlementcentral.com/page0459.htm
What you are asking about is the right of some companies in most states to subrogate against the personal injury award. I have no idea whether or not the state in which you purchased the health insurance policy allows subrogation. Also, many health insurers do not have any subrogation clauses, so they do not even attempt to recoup.
As for what is the “proper” thing to do; don’t ask me. I would probably have to tell you that you should call the attention of your health insurer to the situation and to ask them if they want to be repaid.
Would I do that if I were in your shoes? Probably not. I would think that if the health insurance company has not filed a lien by now, then they are not interested in subrogation (many of the better health insurers waive subrogation).
Here is what I think many people do. They shut up and settle the claim and they put aside the medical expense money in case there is a claim. Then they fight the claim on the basis of the equitable principle of “laches” (you cannot sit on your rights).
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#4. You need to get tested for post-concussive injury, aka traumatic brain injury.
This is my sound advice since I have handled many brain injury claims, and in every case involving a concussion, I always insisted on having an examination by a mental health professional, such as a neuropsychologist. Clinical observations and/or testing frequently revealed continuing problems when the victim thought she was all right.
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FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
FINAL TOPIC: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
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
