QuestionMy wife (Gail) was a passenger while my daughter was driving. A driver in a pick up truck hit the passenger rear side of our van after leaving a stop sign failing to yield the right of way. Gail was treated in Emergency and had follow up visits with our family Doctor for Cervical strain and Lumbar Muscle strain and aggravation of several other painful symptoms from Fibromyalgia and irritable bowel syndrome. Because of the trauma from the accident Gail suffered Post Traumatic Stress Disorder (PTSD). After four mental health visits which had helped I began talking to the claims adjuster to settle. Then two weeks or so into negotiations my wife and I were not happy with what they were offering and my wife was experiencing increasingly intense PTSD episodes during the day and causing her to suddenly wake up at night. We stopped the negotiations and found another mental health care professional. Gail, after having 10 additional mental health care sessions had gotten under control. When we began to settle, the health care cost was nearly 2200 dollars. I am not sure what the second mental health care counselor has charged but I will estimate 1500 dollars for an approximate cost of $3700.00. Is there a standard formula to figure an appropriate settlement? The property damages have already been settled.
AnswerDear Duane,
I am sorry to hear of the serious injuries sustained by your wife, Gail. It is hard to see a loved one go through the pain and suffering brought on by an accident. And when those injuries are the result of "lighting up" a preexisting condition (such as Fibromyalgia), or when your sweetie is suffering depression from the crash, it can be EVEN MORE DIFFICULT since the suffering is real, but the insurance industry treats it as a ghost injury: if you cannot see it or manifest it in an objective test, it does not exist according to your "good neighbor" insurance company, that holds you "in good hands". NOT. This might be a frustrating lesson for you as to why the insurance industry is the wealthiest in America, but don't lose your patience and focus on what is most important for your wife.
The main thing is for Gail to enjoy the love and support of her husband and family. It is a difficult time, and no amount of money will automatically restore her health. You are obviously on her side since you took the time to seek out this site and to ask Dr. Settlement about the valuation. Keep up your patient and loving support for your wife, and let a professional take care of this claim if you want full value.
Since Dr. Settlement has a site that teaches people how to settle their own personal injury insurance claims—www.SettlementCentral.Com—why would I encourage you to hire an attorney?
The answer is: this appears to be too complex a claim to handle on your own. Consider these issues. Gail likely has pain and suffering and depression from the accident, but the underlying causes might also be due to triggering or lighting up of a preexisting condition. Yes, she WILL GET FULL VALUE for lighting up her preexisting conditions, such as Fibromyalgia, but it will take a professional who has handled a Fibromyalgia claim to know how to get full value out of the situation. There is a lot of controversy about trauma causing or lighting up Fibromyalgia, and your friendly insurance company is not going to buy it without some pushing on your side.
THESE COULD BE VERY SERIOUS INJURIES, involving impairment of her life—and yours as well—for many years into the future. Thus, you would not wish to settle "short" if her injuries continue to plague her and impair her ability to enjoy life for many years.
I have handled cases like this one, and I have so much empathy for you and Gail that I am going to devote a lot more time than usual to answering the questions. Hope I don't ramble on too long, but basically I intend to tell you why and how to get an attorney, or—in the event you still want to do it on your own—how to prove certain elements of your claim. But because I have seen how these situations can really hurt—physically, emotionally, and relationship-wise--you will get the full five star answer, including some free negotiation tips: maybe more than you thought you wanted, but here goes, starting with Gail's claim.
Speaking of those elements of your claim, let's look at an outline of Gail's damages, and YOUR damages, in the order you listed them. My questions to you are in BOLD CAPS SO YOU CAN EASILY DISTINGUISH THEM (remember, I AM on your side; I just need to point out to you issues the insurance adjuster will hit you on):
1. Cervical strain; TREATMENT HISTORY, CURRENT CONDITION, AND PROGNOSIS.
2. Lumbar muscle strain; DITTO ABOVE ARE NEEDED FOR NEGOTIATION.
3. Aggravation of several other painful symptoms from Fibromyalgia and irritable bowel syndrome; DO YOU HAVE A MEDICAL OPINION THAT TIES THE AUTO CRASH TRAUMA TO AGGRAVATION OF FIBROMYALGIA AND IRRITABLE BOWL SYNDROME? IF NOT, EITHER GET ONE OR MERELY MENTION IT IN PASSING IN YOUR DEMAND LETTER (and nothing more), SINCE YOUR CREDIBILTIY WILL BE DIMINISHED OTHERWISE. FOR EXAMPLE, DO NOT LIST THINGS IN YOUR DEMAND LETTER UNLESS YOU ARE PROVIDING PROOF. WHAT ARE "SEVERAL OTHER" PAINFUL RESULTS OF WHICH YOU SPEAK
4. PTSD. THIS IS DIFFICULT TO PROVE AND TO SUSTAIN AS A CONDITION THAT WILL MERIT SOME COMPENSATION. MENTAL AND EMOTIONAL INJURIES ALMOST ALWAYS NEED TO BE HANDLED BY AN ATTORNEY IF THEY ARE GOING TO SUCCEED. THE EXCEPTON IS WHERE THE MEDICAL RECORDS AND TESTING RESULTS ARE CLEAR AND SPEAK FOR THEMSELVES. YOU MIGHT BE ABLE TO GET BY WITH STRONG NARRATIVE LETTERS FROM THE DOCTORS.
5. Loss of Consortium (or Loss of Relationship). THIS IS A CATCH-ALL FOR DAMAGES SUSTAINED BY BOTH OF YOU DEALING WITH THE LOSS OR IMPAIRMENT OF BOTH PHYSICAL AND EMOTIONAL ASPECTS OF YOUR LOVING RELATIONSHIP. AWARDS FOR THIS ELEMENT ARE RARE IN SOFT TISSUE INJURIES, BUT WITH THE OVERLAY OF PTSD AND THE LIGHT-UP OF FIBROMYALGIA, IT SHOULD BE INCLUDED.
While your question was simply about valuation, that really is not relevant now, for the following two reasons. What you may have meant to ask is "what should I do now?"
You have already been through one round of negotiations and are starting a second one. Thus, you already have set a settlement value. And the real value of the claim might just be what you and the adjuster say it is. Thus, even if I could divine a value from the little you told me, all it would do is to modify your existing demand. It is hard to justify going up at this point, but you can do that if you have seriously undervalued the claim.
The second reason a valuation guess may not be relevant is that your two claims (Gail's and yours) could exceed the tortfeasor's insurance policy limits. Thus, if your state has low limits, and that is all the tortfeasor has, and if the claim value is clearly in excess of those limits, then who cares what the actual guesstimated value is?
For further information on policy limits, please see the free tutorial on policy limits on the home page of my site: www.SettlementCentral.Com. In other words, if your state has policy limits minimums of only $15,000, there is a good chance your claim far exceeds that value, and so all you have to do is to demand in excess of the tortfeasor's policy limits, and support it with the type of evidence Dr. Settlement teaches our members to put in their insurance demand letters.
VALUATION.
Valuation is not like going to a drive-in for a fast food meal. It takes time and study of many factors, including liability and medical records.
SHORT ANSWER: Do not rely upon anyone who espouses a "formula" to find value of your claims. A common theme among those who still think a formula will put you in the ballpark is to multiply the medical specials times a number from TWO to FIVE, and that is the total value of the personal injury portion of the claim. Of course there is a long list of factors to consider for adding or deducting from the total
BUT, worse than that, emotional damages, mental damages, and a light-up of Fibromyalgia DO NOT GENERATE medical costs in any proportion to the pain, suffering, and interference with enjoyment of life that they cause. THESE COULD BE LONG TERM DAMAGES AND MEDICAL COSTS WOULD NOT BE RELEVANT. Thus, throw out any idea of that kind of formula.
There are DOZENS OF IMPORTANT factors that impact valuation, and it is more of an art than a science. Besides, there really is no answer since different folks see different things in each case, and even jury verdict research can be grossly misleading. But that is a possible place to start: see if your library has access to or can obtain copies of some jury verdict research publications. They do give a ballpark starting figure for various types of claims.
PLAN OF ACTION:
What should you do next? Here are SIX SOLID SUGGESTIONS TO SUCCESSFUL SETTLEMENT.
FIRST, send a nice letter to the adjuster telling him or her that you are withdrawing your offer to settle, and that you will reassess your position and get back to him in a short time. Tell him that you are afraid that some of Gail's injuries could last for many years, and so you feel you may need to take that into consideration in revaluing the claim. That will allow you some breathing room to get your claim better documented, and yet it will show the adjuster that you could even be asking for more when you do return.
SECOND, consider arming yourself with some new shells to lob over at the other side. We teach our members at my site about how to create witness statements for settlement. Consider this topic and see if you can come up with any witness statements regarding Gail's injuries that you have not already used in your negotiations. Do the jury verdict research work if possible.
Without having to join, Dr. Settlement has given a lot of free information on handling insurance claims without having to join as a member. Go to "5 Easy Steps to Do-it-yourself Settlement" (http://www.settlementcentral.com/page0102.htm) and read the module. Click on "Documentation", and thence on "Witnesses" for more information.
THIRD, check out your medical records to ensure that they clearly diagnose the conditions you think they do, and that the etiology is clearly linked to the accident trauma. If there is not a clear link, then you need to get the doctor to so state in a narrative report. Look for a clear prognosis. What can Gail expect in the future? We teach members how to do this, but I cannot lay out all of that information here, but the following will help.
Short tips: (1) NEVER TELL THE ADJUSTER that you are seeking a narrative letter from the doctor inasmuch as then the adjuster will be looking to get a copy of it, and you do not know whether or not it will be supportive of your claim. (2) talk about what you want with the doctor's office manager first before sending a letter that will likely be discovered by the insurance adjuster sometime later; then, tailor your request letter in accordance with your conversation. (3) Try to get the doctor to tell about future expected medical treatments and costs. Make her give you a prognosis.
FOURTH, thusly armed with some new ammunition, you can proceed to negotiate again, and when they do not see it your way, ask them why not. Get them to tell you their objection to your value. Then, buttress up those weak spots with witness statements or supplemental medical narrative letters.
FIFTH, get their best offer and then take it to an attorney and save on attorneys' fees.
If you cannot negotiate a settlement, Dr. Settlement teaches members and free visitors how to get an offer and take it to an attorney, thus saving attorneys' fees on the amount of the offer made to the claimant. Here is how to access the free information on saving attorneys' fees.
Go to "Do-It-Yourself Personal Injury Claims; Eliminate Attorneys' Fees; Save Thousands of Dollars Settling Your Own Insurance Claim" (http://www.settlementcentral.com/page3011.htm). Halfway down, click on "Do-it-yourself injury victims save thousands of dollars", and you will see how this can work with an attorney.
SIXTH, if all of this is too much work for you, then just hire an attorney. You might be able to find someone who will review your claim and accept an hourly compensation for coming up with a value range for the claim. That can be tough since not many will want to put their malpractice on the line just for a few bucks earned for hourly compensation. But it would not hurt to try.
If you cannot find any attorneys from good recommendations and you feel you do need an attorney, I will find one for you for free. We do not charge to find injured persons good attorneys, nor do we accept any compensation or kickback from the attorney for the referral. We are in service to injured persons.
I trust this has been of help to you, and I wish you the best to achieve a fair and amicable settlement without resort to the courts. Please leave me some feedback on the form since that is the only way I can know whether my efforts here are helping people.
Best Wishes to you and Gail,
Dr. Settlement, J.D.
www.SettlementCentral.Com
