QuestionHello,
Dr. Settlement, I was wondering if you might take a moment and give me your thoughts on my situation. A couple of years back I sought your opinion on this same case and you were extremely helpful.
I was rear ended in stop and go traffic in May 2007. The impact pushed me into a car in front of me as well. I did not seek medical attention from the scene of the accident however about 6 hours later, I began getting severe headaches combined with double/blurry vision. I went to the emergency room and was given a CT scan which came back negative. After trying physical therapy for my neck and shoulder for the headache symptoms to no avail I was given an MRI of my head. I was diagnosed with a pituitary brain tumor. It is important to note that this is a workmens compensation case as I was on the job when the accident occurred. As soon as I was diagnosed with the tumor, the insurance company stopped paying for any treatment.
Over the next 2 years I went for follow up MRI's and it was decided to remove the tumor in March 2010 due to it getting larger. Thank God I had a successful surgery and follow ups to this point have been normal. I have lost virtually my entire sense of taste and smell as a result of the surgery.
I have been formally diagnosed with Post Concussive Syndrome and given a 30% loss of neuropsychiatric ability by a psychiatrist of my attorneys choice. I suffer from memory loss, blurry and double vision as well as sexual side effects. my lawyer has been completely unwilling to pursue a connection between the accident and the onset of the symptoms from the underlying tumor.
The letter I just received from my attorney is offering me a 15% permanent disability for a "cervical strain with headaches." This opinion was obtained many years ago as I was undergoing physical therapy for my neck and shoulder. In the recent letter, there is no mention of compensation for the post concussion syndrome. I am awaiting a copy of a report from the insurance company's psychiatrist as upon receiving my doctor's opinion, they required a 2nd opinion by a doctor of their choice.
I have told my lawyer that I will not settle based solely on an award for the injuries to my neck and shoulder. What steps should I be taking to insure that I am compensated for the symptoms of Post Concussive Syndrome? I have done quite a bit of research and understand that there is considerable value to these types of injuries. It has been 4 years since the accident and the memory loss is quite significant. During the time it takes to open one browser and close another, I forget what I was going to do. Recently, my 3 year old son asked me for some juice and by the time I got to the refrigerator I had forgotten what I was there for. I use my blackberry as my lifeline and document everything I need to do for fear of forgetting. I make myself notes as I am driving on important topics so I don't forget.
I hope I have given you enough information. I am looking for some guidance on how to proceed with the settlement process from this point forward.
Thank you for your time in advance.
Greg
AnswerDear Greg,
I am very sorry to hear that your situation has worsened and that there does not seem to be any good therapy for you at this time. The personal injury settlement is really irrelevant at times when our health is so impaired. But it is Doctor Settlement's job to focus on the insurance claim settlement, so I will move away from your health to get into the topic of money for your injuries.
And that last clause brings up the problem: JUST WHAT ARE YOUR INJURIES FROM THIS ACCIDENT? This is the main issue of contention between your attorney on the one side and you and I on the other side. I believe that your trauma DID light-up a preexisting asymptomatic condition.
First off, let me apologize for the two day delay in answering you, ,but I did feel it necessary to ask this website to find my prior answer so I could see where we last left off. They finally got it to me this afternoon, but I was busy going to a football game, so I am working on this tonight (Saturday) so you will have it first thing tomorrow. Hope you do not grade me down for that delay, and by the way, THANK YOU for the super feedback you left me last time; that was included in the archive that I received this afternoon.
OK, back on topic. The most interesting thing from last time is this history of your visit to the doctor's office:
<u>"I was accompanied by my lawyer to the consultation. In that consultation, the neurologist went through a very thorough explanation of how based on the location of the tumor, it was highly likely that the optic nerves had been stretched by the impact thus creating an "awakening" of the tumor and it's symptoms." </u>.
What this means, is that your accident caused a light-up of a previously asymptomatic condition. THAT in and of itself is sufficient testimony to support the claim for your mental problems. NO QUESTIONS: PERIOD.
Your problem was that this very same doctor omitted that commentary in his report. Your attorney DID NOTHING to fight to get that opinion in writing.
At our last visit, your attorney was fighting instead to get a quick settlement, against your wishes. I told you how to fight that, and to respond in writing. Now you still have the case alive, so apparently you DID get the attorney to set aside his idea of settling the case back then.
I also included a section on how to get a new attorney. But I did not push you to do that. I wish I had done so, because IMO, your attorney IS NOT representing you to the fullest. I cannot judge his competency with such little information. But from what you have told me in both of these questions, this attorney is not competent to handle your claim. So I am now taking the stronger position that I wish I had taken before: you MUST at least get a second legal opinion, and based upon that, you probably will decide to get a new attorney.
Here is why. An attorney who is experienced and competent to try cases of this complexity is NOT EVER going to be stopped until she gets a doctor to opine that the trauma lit up your preexisting asymptomatic condition.
NOW, maybe you have neglected to tell me that you attorney has made just such efforts and sought out such a doctor's opinion, all to no success. If that is the case, then I am wrong because your attorney IS fighting for you. But instead you are telling me that the LAW FIRM itself does not want any part of pushing for a connection between the trauma and your present condition. So, that leads me to believe that in fact your attorney is NOT making the effort to find a doctor to give such an opinion.
Remember this from last time. All you need to get this issue before a jury is just that ONE opinion. The insurance industry can bring in a thousand bishops to testify against your doctor, but it will NOT matter because this will be a jury question to resolve. And they are going to vote IN YOUR FAVOR, in my opinion.
AND, once you do have that opinion, the offers from the other side will be ten times what they are now because the insurance company knows that they run the risk of losing BIG MONEY.
OK, Greg, let's next explore why your first doctor did not mention in his report what he had told you and the attorney in the office. There are really ONLY TWO reasons, and both of these SHOULD have been fought by your attorney.
FIRST, did it ever occur to your attorney that the doctor simply forgot? He overlooked this factor, and when he wrote his report, he just forgot to include it. That is possible. And an office consultation made by your attorney would have remedied the situation.
SECOND, the doctor did not understand the burden of proof in civil cases, and hence, he decided that the proof did not rise to a scientific level of proof, so he decided to omit the topic. I wrote to you about this, and I will bring back some of that same information since it is very common for doctors to hedge their written opinions if they are not CERTAIN of their opinions. They do not want to be embarrassed in court, so they will chicken out and take the more conservative, safe road. Does that make sense?
Dr. Settlement fought insurance companies by aggressive contact with doctors, not by hiding and refusing to challenge them. A good attorney would be all over your doctor if the report left out something so important that the doctor had mentioned in his office. Maybe your attorney did this, and you neglected to tell me?
A good attorney would go over the VERY LOW burden of proof in civil matters, showing the doctor that his opinion does NOT have to be to a medical scientific provable standard.
Here is what I wrote on this topic before:
"But DO NOT despair: the burden of proof in civil cases is very low: merely the preponderance of the evidence. That means, is the thing in question more likely true than not. Like crossing the 50 yard line only—there is no requirement to score a TD. Some doctors get hung up on this and think that their opinions have to be made to a medical certainty, like almost certainly true.
"So a good attorney could go back and sandpaper that first doctor to get him to modify his opinion on the basis that causation was more likely true than not. By the way, I am happy to note that your attorney did go to meet with the doctor. That is a sign of competent counsel, so he gets points for doing that.
"One final thought on causation, Greg: you DO NOT have to show that the trauma "caused" the tumor. Your doctor stated a perfect case for what is called a "light-up" of an asymptomatic condition. In other words, a victim could have a preexisting condition, and a tortfeasor causes that condition to become symptomatic, or "lit-up", then the tortfeasor is responsible for ALL the damages the victim suffers, just as if he had caused it anew."
WHY you stuck with that law firm has not been explained, Greg. I wonder about that because it is my bet that YOU know more about your proof of the condition and lawsuit results on this topic than your attorney. It sounds like your attorney is afraid to get in the fight for you—maybe because of inexperience with such cases? Has your attorney EVER tried to a jury such a case as yours? I cannot do for you what I would do myself, but I am going to suggest two solutions, starting with stopping any further work in your file and second, getting a good second opinion from a top-notch experience trial attorney.
FIRST, you MUST put a halt to further work in the file until you get a SECOND opinion. I do not know where you are in the process, or is motions are being made, or settlement conferences scheduled, or just what is happening. Hence, my comments and suggestions MUST take a back seat to the lawsuit schedule. You cannot just stop the proceedings, but at the same time, you can reschedule if you are seeking alternative attorney advice.
Do NOT make the contact with your present attorney to put a stop to things until you and I have a chance to discuss this. Depending upon what you tell me (see below) about where your case is in the process, I may have to draft a letter for you to send to your attorney instructing him to put his representation of you on hold until you have obtained a second opinion.
The next thing will be to go for a second opinion with a good trial attorney. You will make no commitments to obtain that opinion, and if you ask me to help you, I will get it done with on a no-fee basis. This will not be a half-hour meeting, but something that gives the attorney all the information she needs to let you know what should be done in your case, in her opinion.
Based upon the second opinion, you will have to decide whether or not to stay with your attorney or to get a new attorney. I told you last time how to get a new attorney, but there are some things I omitted since I was not pushing for one. But this time, I am willing to give you a lot more information, should you ask for it.
First, though, in your condition, I believe that you need some help just to find a good second opinion attorney. I am willing to help you do that on a volunteer basis. What I will do is to contact the state trial attorney president in your state and get from her a list of five good attorneys with experience in trying brain injury cases. [No, a layman cannot do this; she will not even talk to you, let alone give such a list.]
I will get more info from you over the phone, and then I will speak with the attorneys. All of this is in confidence. Based upon that, I will give you a couple of names to choose from—both of whom will see you for no fee to discuss your case.
You may decide to see them for a second opinion, or you may decide to just stick with your present attorney. That is up to you, Greg.
One more thing is to emphasize that my participation in your behalf is strictly voluntary, and in no way will I receive or ever accept any kind of referral fee from an attorney, irrespective of whether or not you should ever hire one. I wanted you to know that so that you can understand that I will have no gain or interest in whether or not you hire a new attorney. Everything Dr. Settlement does is volunteer personal injury work.
Another thing in that no one will ever know what information I give you or the second opinion attorney gives to you. This will all be confidential.
Now, here is what you need to do if you want me to help find a second opinion attorney. First off, you cannot write to me again here at allexperts since I have already put myself on vacation from this site for the next two months as we will be traveling. Instead, the only way for you to contact me is to write to me at my website, and to use the "contact us" link at the top right of the home page: www.SettlementCentral.Com
It is important that you identify yourself properly in that e-mail , or the staff will just junk it by sending a say-nothing form response e-mail that we send to those who write SettlementCentral.Com asking for opinions. Put in the e-mail your name and the fact that you are writing at the invitation of Dr. Settlement. That way, they will set your email aside and someone will research your name on my recent allexperts answers to verify before giving me your e-mail. Put in your phone number if you would like to speak to me. Give the state in which the lawsuit is filed AND the city. And any additional info you think would be helpful to me in my efforts to try to attract some interest from a top-notch attorney.
OK, Greg, I believe that I have answered your questions, and if you elect to seek my help, I will make time to work with 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
