QuestionI was involved in an auto accident about a year ago. I was hit almost head on and I broke my heel and required surgery to properly fix my heel. I was told by my doctor that later on, if the metal plate he placed in my foot bothered me, he could remove it. I have been offered a settlement which includes lost wages and my medical bills. I was offered $11,700 for pain and suffering. My total settlement is $36,570. My question is, how much should I fairly receive for a broken bone/surgery or is this amount about right? Would I get them to pay for the removal if necessary or would that be included in the settlement? Thanks!!
Answer
Dear Fred,
I kind of winced when I read about the metal plate in your foot. That tells us that you have a serious injury, and one that may give you problems in later years. I am going to take a lot more time and effort with your request than you may have anticipated because in my legal career I had cases with heel injuries and they were so bothersome in years following surgery that I do not want you to settle for far less than you should.
I know that the doctor will tell you that all is well with the work he has done, but I believe that if you research your surgery online or with another doctor, you will find that people have a lot of problems in later years.
I am not trying to scare you: but I do want you to think about whether or not you have really tested your foot after the surgery. Do you think this is the right time to settle—because I am going to suggest that you go through this active outdoor season just to see how well your heel and any other injured body areas hold up with increased physical activities.
This is potentially a lifetime serious injury, and I do not want you to settle your claim too early, before you have had sufficient time for problems to surface. 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
You asked me what I think of your general damages offer of $11,700. OK, even though I have no real facts upon which to base an opinion, I will give an off-the-cuff idea of what I think about your offer: IT IS FAR TOO LOW.
The first thing one wonders about is any FUTURE pain and suffering associated with the foot or any other parts of your body. There is a real stress put on that part of your body each day, and in the past, my clients found that the pain started to show up at night after standing a lot during the day. But even if you did not have any further pain or even if you never had to have the plate removed, I think your settlement is too low. But then, who am I to say?
Maybe you are a man of steel or maybe you are a man of few words and never let out a complaint about any pains. If so, you probably do deserve such a settlement. That is because you did not mention one word about any pain and suffering from your foot or any other part of your body. And communicating what is painful is part of making value in a personal injury insurance claim.
If you struck head-on hard enough to break your heel, then your body also suffered soft tissue injury. What treatments have you had for that? As spring and summer bring more outdoor activities, how will your body react? Don't you want to see how your surgery will hold up before you give away any rights to come back should you experience pain in the future?
How did the offer from the adjuster come to be? Did you prepare an insurance claim demand letter showing all the problems you had prior to and after the surgery? Or did you just sit back and let the adjuster take charge?
If you are happy to live with your metal plate for the rest of your life, then the offer is close to what you want. You can counter at something above that amount and settle the claim. You can ask that they reserve funds for removal of the plate, but they will want to put both a monetary cap and a time frame on their liability (i.e. up to $4,000 if removed within 2 years).
On the other hand, if you are like me and most other people, we do not want to be married to problems with our feet and ankles for the rest of our lives, and especially if caused by the negligence of another. I would not be willing to suffer as I suspect you did, to undergo surgery, to have a plate inserted in my heel, and to risk all of the long term problems associated with that operation. It would take one heck of a lot more money than what they offered you to entice me to go through that process.
I am going to respectfully suggest that you do three things.
• 1) DO RESEARCH ON THE LONG TERM PROBLEMS WITH FOOT AND ANKLE FOLLOWING A HEEL FRACTURE;
• 2) SEND THE ADJUSTER A WRITTEN RESPONSE DECLINING HER OFFER AND EXPLAINING THAT YOU WOULD LIKE TO SEE HOW YOUR HEEL PERFORMS THROUGH THIS COMING SUMMER WITH ITS OUTDOOR PHYSICAL ACTIVITIES;
• 3) READ THE FREE PAGES CITED BELOW—DEMAND LETTER—COMMUNICATE IN WRITING—DOCTOR'S NARRATIVE LETTER
1) DO RESEARCH ON THE LONG TERM PROBLEMS WITH FOOT AND ANKLE FOLLOWING A HEEL FRACTURE
My brief review of the type of fracture you had shows that problems after the surgery are pretty common. Thus, you would want to get a handle on these types of problems and consult with another doctor if necessary. Not to show disrespect to your surgeon, but it has been my experience that orthopedic surgeons will not predict problems in the future for surgeries they have done. They will admit that sometimes problems do appear, but you will rarely find a surgeon who will admit that his handiwork will later result in a painful situation for his patient in the future.
Thus, you will need some other source of information to present to the insurance claims adjuster. There are two ways of doing that:
• you can seek out a second opinion. Nobody is going to criticize you for going to get a second opinion. You can ask your doctor for a referral if you wish.
• you can make a WRITTEN collection of downloads from the Internet and present them to your doctor when asking him to produce a narrative letter explaining and expanding upon his office notes, and projections regarding future problems.
Here are just a few of the comments I found in my research regarding your surgery and future problems others experienced.
The joint between the calcaneus and the talus is called the subtalar joint. This joint is responsible for the inward and outward movements of the foot, otherwise called inversion and eversion. When the calcaneus is fractured the movement of inversion and eversion is commonly decreased or lost completely. The upward and downward movement of the ankle (dorsiflexion and plantarflexion) is not usually affected by fractures of the calcaneus.
There are numerous problems associated with fractures of the calcaneus. One is the widening and deformity of the bone itself. Another is irregularity of the subtalar joint that leads to arthritis. Fractures to the calcaneus may also cause injuries to the heel cushion (the heel pad) and to the nerves and tendons surrounding the heel.
Problems of the foot and ankle after calcaneus fracture
Following a fracture of the calcaneus, there are many potential problems which can occur. To some extent, this depends on the type of treatment provided. The problems which occur commonly are as follows:
1. Pain in the back of the heel on the outside of the ankle. This is present in the heel joint (the subtalar joint), and is usually because of arthritis in this joint.
2. Stiffness in the subtalar joint. Regardless of the type of treatment, there is always some limitation of the in and out movement of the foot. This is called inversion and eversion. The problem occurs because of damage to the cartilage surface of joint, which is often associated with arthritis.
3. Widening of the back of the heel and difficulty with wearing shoes. This problem occurs predominantly when surgery is not performed initially, and the heel remains wide and deformed.
4. Pain on the outside of the heel and the outside of the ankle occurs due to injury to the tendons (the peroneal tendons). This is a more common problem when surgery is not performed initially, and is because of widening of the heel bone. The peroneal tendons can be torn in the process.
5. Pain under the pad of the heel. This is unfortunately a permanent problem, since the specialized fatty cushion under the heel can be permanently damaged with injury. This can only be treated with correct cushioning and padding of the heel.
6. Burning pain on the inside of the ankle. This can occur as a result of widening of the inside of the heel on the inside of the ankle, which causes irritation of the tibial nerve (called a tarsal tunnel syndrome)
7. Pain in the ankle, which occurs in severe forms of fracture which are not treated with surgery. The heel bone is severely crushed, which leads to jamming of the front of the ankle.
2) SEND THE ADJUSTER A WRITTEN RESPONSE DECLINING HER OFFER AND EXPLAINING THAT YOU WOULD LIKE TO SEE HOW YOUR HEEL PERFORMS THROUGH THIS COMING SUMMER WITH ITS OUTDOOR PHYSICAL ACTIVITIES
Don't call the adjuster. Send her a written response. You are thus doing four things:
• You are telling her that your injuries are still bothering you and that you wish to wait to see how you handle this active season;
• You are letting her know that her offer is so out of line that you will not even dignify it with a counter offer at this time;
• You are letting her know that you are not in any big hurry to settle and that you will await a time when you can get a fair offer;
• You are requesting that she notify you in writing of the statute of limitations. This is one area you where want to give a lot of time before you have to see an attorney. Directory of Legal Information Statute of Limitations for Personal Injury Insurance Claims Motor Vehicle Accidents http://www.settlementcentral.com/page0452.htm
I do not want you to wait around while you draft some letter so I will take a shot at it now.
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Dear Adjuster,
RE: Rejection of Settlement Offer; Continued Pain; Statute of Limitations
Thank you for your offer of settlement in which you offered $36,570 total, including lost wages, medical expenses to date, and general damages of $11,700. While I do appreciate your having made the gesture of an offer, I cannot accept it as it is far too low for what I have been through as the result of the negligence of your insured.
In addition, I am not sure what the future holds inasmuch as I am in continued pain, and my doctor says that at some time in the future he may have to remove the plate in my heel. Naturally, I will be including the cost of that surgery in my demand as it must be covered by the tortfeasor as part of your responsibility.
I am now entering a season of outdoor activity, and I would like to see how my heel holds up. I am aware of the many complaints of people who have had the same procedure as me, and the problems they encounter in future years are numerous and serious.
For example, some who experience pain under the pad of the heel are in for a permanent problem, since the specialized fatty cushion under the heel can be permanently damaged with injury. This can only be treated with correct cushioning and padding of the heel—another surgery?
For right now my pain is not so disruptive as it is annoying. It is intermittent, and a dull ache sometimes. I notice that if I have been standing for long or walking about during the day that I have pain at night and sometimes it is bothersome when I try to sleep. Plus the whole area is still stiff when I try to move it. Thus, I need more time to see how this surgery will work out.
I am sure that you want to make this a fair and reasonable settlement, and thus you would not want me to settle early, leaving many later years of pain uncompensated. The only problem in waiting is that I do not want to run up against a statute of limitations problem. I am therefore asking for you to respond in writing to let me know when the statute of limitations expires for my claim. My goal is to achieve a settlement long before that, but I do need to keep the date in mind so as to avoid an emergency filing of a lawsuit.
I await to hear from you regarding the statute of limitations date.
Very Truly Yours,
(your name)
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3) READ THE FREE PAGES CITED BELOW—DEMAND LETTER—COMMUNICATE IN WRITING—DOCTOR'S NARRATIVE LETTER
Finally, I want you to be an effective communicator of your demand for settlement. Don't just call up the adjuster and start discussing your demands. Instead take the time to make your own demand letter—that is one step that will really pay dividends for you. I cannot tell whether or not you sent a formal demand letter. But it is best to think about that now if you did not.
You do not have to send a demand letter just now inasmuch as you are going to wait to see how the heel does perform.
But go ahead and read the following pages of free information to get some background in this topic. One thing not mentioned below is getting a positive print from your doctor's x-ray negatives. THIS IS POWERFUL STUFF, BEYOND THE COST MANY, MANY TIMES OVER. You call around and figure out who can produce a positive from an x-ray and get the doctor to send them there or you take them there. Ask the doctor's nurse to pick out three that show your condition and especially your hardware, plate, screws and all.
Just on this tip alone, your adjuster should make a SUBSTANTIAL INCREASE in her general damages offer since she can see how effective these positives would be when introduced into evidence before a jury.
Responding to Settlement Offer From Insurance Claims Adjuster http://www.settlementcentral.com/page0244.htm
Write Effective Personal Injury Insurance Demand Letter http://www.settlementcentral.com/page0170.htm
Medical Records Key Personal Injury Insurance Settlements http://www.settlementcentral.com/page0114.htm
Use a Confidential Personal Injury Diary for TOP DOLLAR Insurance Claim Settlements http://www.settlementcentral.com/page0208.htm
Finally, consider asking your doctor for a narrative report to explain in detail the possibilities—AND PROBABILITIES—of future problems. The challenge, as I noted earlier, is that YOUR doctor will be reluctant to state that his beautiful work could ever develop into a problem!
Thus, you have two ways around that natural reluctance on his part. The first thing to do is to download a lot of the information from the Internet regarding problems that have come to light in later years regarding your surgery. When you ask him for a narrative letter to describe your diagnosis, surgery, present condition, and future expectations, include copies of the problems others have had.
The second way is to tell your doctor that you want to seek out a second opinion before you settle your claim. Just to be sure, tell him. That way you will have an unbiased opinion and you can more likely live with what he says you can expect in the future.
OK, Fred, I think I have provided you with sufficient ammunition to succeed in getting the best settlement you can on your own. I trust that my extra time in researching and writing have been of value to you. And thus I would respectfully request that you take the time to find the feedback form on this website and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D.
www.SettlementCentral.Com
