QuestionQUESTION: My son was hit by a vehicle while riding his bike to school. He had a cat scan done and has seen his doctor three times already. He has complained about headaches and now his doctor wants us to see a neurologist. He had some of minor head injury. Not a bad one, but it has somehow altered his personalty. I think the insurance company wants to settle soon and I don't know how much would be reasonable. He is a minor and I know we have at least up till he's 18 to file a lawsuit. I know if I were to settle than any issues that he might have in regards to this incident we as parents will have to be liable for. My question is this...how do i find out the maximum of their injury liability insurance and can i ask for that amount...I can not predict what problems we may have in the future, and I have no way of knowing what would be a fair asking amount. We have not hired an attorney yet, and I would rather handle this on my own...
ANSWER: Hi Suri,
It is tough to see our kids suffer like this, and I am going to give you over an hour of my time to put together something that will help you. You are smart to know that there may be problems that will come to haunt your son after the settlement. But like most of us, you may have misconstrued the extent of the head injury since nothing truly devastating came from it. So I will address the seriousness of this injury as well. But let's dispose of one of your issues right off the top. No one has any idea of the value of this claim since we have no doctor's reports, and in particular, nothing to show the extent of brain injury.
So, Suri, here are the six topics I am going to write about for you today:
#1. Head injury problems: post-concussive syndrome
#2. You MUST get legal help ASAP
#3. Why the adjuster wants to settle now
#4. What are the policy limits for the tortfeasor?
#5. Attorney Fee Negotiations
#6. Ground rules on Minor Settlements
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#1. Head injury problems: post-concussive syndrome
Here is some background on a moderate head injury. Take a look at the following list and tell yourself how many of these symptoms does your son honestly still have.
How hard did he hit his head? It sounds like a pretty hard whack. So, let’s first address that topic of the most significant potential injury, his 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 he DOES HAVE A MODERATE BRAIN INJURY.
Let’s first examine what is a concussion and what is a loss of consciousness. He DID HAVE A CONCUSSION, that much is for sure, since he hit his head. So traumatic brain injury is in play in his claim since he 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. 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
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TMJ—temporomandibular joint syndrome: possible source for any HEADACHES.
This is another term I want you to research. When an accident victim strikes his head, there is a good possibility that the disc in the condyle, or jaw joint disc, can be displaced. One of the consequences of jaw joint displacement is headaches. All too often in my practice, the doctors treated headaches as having originated from cervical problems, when in fact, they were due to a TMJ.
http://www.lectlaw.com/med/med04.htm
http://en.wikipedia.org/wiki/Temporomandibular_joint_disorder
http://www.tmjdoctorofmaryland.com/
There are two at-home ways to see if your jaw joint is moving. First, find the spot in front of the little lobes on the middle of your son's ears. These are called “tragus”: http://www.infovisual.info/03/048_en.html
Now, put your fingers just in front of the tragus and over the jaw joint and have him open and close his mouth. If the disc is far out of place, you will feel a click. Better is for you to stand behind him as he is seated and perform the same test. You can feel the click if his jaw joint disc is far out of place.
WHAT TO DO ABOUT REFERRALS: If you feel that he does have any of these symptoms and they are of some significance, I WOULD INSIST UPON TREATMENT for them ASAP. It is best to get your general practitioner to refer you, but you can self-refer if you have to. Your attorney can also be a source of information on good specialists. Here is what your son would need: a neuropsychologist to test and to treat the mild brain injury. That is where the big mental help will come from, and of course that is where the BIG INSURANCE SETTLEMENT DOLLARS come from also.
As for the TMJ, a dentist who specializes in that field would be a lot better than an ordinary dentist. The TMJ specialist is adept at diagnosis and treatment, and of course, at making records that will help in making a good insurance settlement.
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#2. You MUST get legal help ASAP
I am not condemning you, Suri, but I do want you to see how ABSOLUTELY WRONG it is to think that you could settle a head injury claim on your own. You MUST get an attorney ASAP, and insist upon one who has experience with head injuries. BUT make sure you abide by the fee negotiation instructions I am going to give to you below. If the tortfeasor has only minimal policy limits, then why should you pay an attorney a HUGE fee to get those limits when a blind dog with a note in its mouth could do the same thing? See Attorney Fee Negotiations that I will add at the end of this answer.
The best known insurance claims legal expert on the Internet is Dr. Settlement—he teaches do it yourself personal injury insurance settlements at www.SettlementCentral.Com So if I give you some advice on this, I hope you will listen a bit. I would not even handle my own insurance claim if I had a head injury. There is just too much at stake that I could mess up, and so I would hire an attorney even for my own claim.
Also, Suri, please consider this for a moment, if the best self help insurance claim site is www.SettlementCentral.Com that teaches personal injury settlements, and if that site NEVER allows membership for head injury claims, don't you think they might have a reason to refuse membership to those with head injuries? There is just too much that needs to be done NOW, and not wait in head injury cases.
And we are talking here not just about general medical help, we are talking about building the value of the claim. First, the attorney does have good experience at choosing a quality doctor. Second, the attorney is skilled at recording evidence that will surely be missed by you and by your doctor. She will work with you to get down the evidence of brain injury impacts on your son's life. She will also ensure that your son gets the best care, and she knows sources of $$ that you have not thought of.
For example, my bet is that you did not even think that your son is covered under your PIP/MedPay and under your Underinsured Motorist Coverage (UIM). An attorney knows that, but few bicyclists realize that automobile insurance also covers bicyclists and pedestrians and that, when an accident happens all available resources must be used to pay for the consequences.
She also will never do as you have done, and characterize this as merely a "MINOR" injury, while at the same time acknowledging that it has "altered his personality". Your attorney KNOWS that this is a serious condition that requires continued treatment, and which should NEVER be settled so soon.
I know that you are sharp enough to write to allexperts.com instead of taking the insurance adjuster's invitation to participate in settlement right now. So good on you for that.
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#3. Why the adjuster wants to settle now
Let's take a look at why the adjuster wants a quick settlement. 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
The insurance adjuster is trying to settle the claim early, BEFORE the injury brings big money. Six months to one year from now, if your son is still suffering as he is now, then the value of the claim increases dramatically. I would not bet on this serious injury improving on its own in the next six months. If the adjuster can get the victim to settle early, before that injury drags on into one year or more, he can save a lot of money.
Here is page from my website that shows in detail why you should never make an early personal injury insurance claims settlement http://www.settlementcentral.com/page0211.htm
And, of course, once you settle, THAT IS IT: neither you nor your son will never see another dime in pain and suffering or auto insurance medical care.
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#4. What are the policy limits for the tortfeasor?
This is a tough one, Suri. Unless you live in one of the four states that require disclosure of the limits upon written request, the only way to force the disclosure is via the discovery process in a lawsuit. This is done via a set of Interrogatories sent to the adjuster.
All the attorney has to do is to send a set of simple questions and the defendant must disclose the amount of his insurance limits. Sometimes we attorneys send a set of interrogatories in advance of filing the lawsuit and ask the adjuster to see if her insured will agree to disclose limits. That often works, and it can help plan how to end the matter quickly if the limits are low.
This brings up another way that limits are often disclosed: is when the value of the claim far exceeds the amount of the policy limits. For example, if the tortfeasor has only $25K limits in this case, a written demand to settle for limits should bring forth a response that discloses the limits.
BTW, you are NEVER to settle A POLICY LIMITS claim without at least the benefit of membership at www.SettlementCentral.Com to learn insurance policy limits settlement procedures. You can find a brief introduction to insurance policy limits procedures on this free information page: Legal Information on Liability Insurance Policy Limits Settlements http://www.settlementcentral.com/page0451.htm in Personal Injury Insurance Injury Claims. Main point being: never settle a limits case until you give your own insurers a chance to buy out the settlement. Otherwise, you risk losing your rights to first party insurance coverage (i.e. UIM being the most common).
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#5. Attorney Fee Negotiations
What if the tortfeasor has only $25,000 in policy limits? You could get that amount simply by sending the adjuster the medical reports and a three paragraph demand letter. Why pay an attorney many thousands of dollars to do that?
Yet I am telling you to get an attorney ASAP. So why not wait until you see what the limits are? Because the participation of the attorney right NOW is important. You can deal with fees by contracting for two contingencies in the agreement with the attorney.
Have your attorney insert a clause that should the tortfeasor's limits be only $25,000, then the fees on that first $25K will be at $250 an hour, not to exceed $2,500.. It depends on how much UIM you carry for that topic to enter into the contract discussion. Call your agent and pose three scenarios to see what your insurer thinks will be available for your UIM claim in each of these scenarios. Reason being, you will have to deduct the tortfeasor's limits off your UIM limits in most states.
For example, in most states, if you have only $25K in UIM limits, and the tortfeasor has $25K in BI (bodily injury) limits, then you will have zero available on a UIM claim $25K minus $25K). If your UIM limits were $50K, you would have $25K in UIM limits after deducting the tortfeasor's limits ($50K minus $25K), and so on. Does that make sense, Suri? Anyway, before you approach a meeting with the prospective attorney, here are the three scenarios to ask your own insurance agent about. How much UIM coverage will you have in each of the following cases?
A. In the event the tortfeasor has limits of only $25K (or less if your state minimums are less).
B. In the event the tortfeasor has limits of $50K.
C. In the event the tortfeasor has limits of $100k or more.
Once you have that info, you will be in a better position to negotiate the attorney fees. Do NOT be afraid to bring up these fee ideas. Mention it now, because once you agree to any one-third contingency fee, it will be difficult to change the agreement to something more to your liking.
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#6. Ground rules on Minor Settlements
Here is a brief look at how the courts proceed when there is a settlement of a minor's personal injury claim. http://www.settlementcentral.com/page8017.htm
Note the topic regarding making the insurance company pay for the fees of the attorney appointed to represent your son's interest: the Guardian AdLitem. Otherwise, his fees for investigation, meetings, drafting the report, appearing in court, and making safeguards to ensure proper investment of the proceeds will all come from your son's award. Do this as a nibble—something that they must agree to in order to secure your OK of the settlement amount. Your son's own attorney should have the moxie to make the insurer pay the GAL fees and court costs since these procedures are for the benefit of the insurer, not your son.
That is about is, Suri. 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
---------- FOLLOW-UP ----------
QUESTION: So how do i get a lawyer to take interest in my case? I have talked to several lawyers and only one has called to want to speak with me. They are one of the ones you see on commercials so I'm kind of leery talking with them. They want me to come to the office sign somekind of contract so they can investigate the case. I don't really want to sign any thing right now since i am still researching everything.
AnswerHello again, Suri,
Thank you very much for the kind and generous feedback you left for me; I appreciate that.
Here is how it works in hiring an attorney: picture a hungry dog in a meat market, and you will see that he will go for the meat, and leave the smaller scraps behind. A smaller dog that was not able to get the meat will have to eat the small scraps. Unless we change your bait, you will have to get a beginning attorney, and that is NOT what I would like for your son, since the beginning attorney may be motivated, but he has no experience in a brain injury claim.
We trial attorneys know how to smell money in a case, and we will go for it like crazy. If you are not getting any bites on your bait, that means no one is able to sniff out how to make money on the case.
It could be a liability issue or it could be a damages issue. Those are the only two main reasons we send a potential client on her way. As for damages, I will bet that these attorneys have not yet heard of the recent referral to check on brain damage.
Soooo, if you want me to help you, I need a lot more detailed info, and this is NOT good forum in which to exchange info and questions and answers. I am willing to open my personal e-mail to you, but understand that I do not ever take any cases any more. Instead, what I can do is to help you to:
A. figure out what it is that is turning the attorneys off;
B. redesign your bait so the case is desirable (note—it is easier to negotiate fee discounts if the case is one the attorney really wants to handle);
C. construct a couple of discount clauses that you can take in with you;
D. if need be, I am willing to pick out like three attorney firms in your area that have the experience you need for your son's claim.
MY CONDITIONS:
FIRST: The choice of and the contracting with the attorney is strictly your business, and I am not involved in any way. I do not ever get a referral fee for helping an accident victim find a good attorney.
SECOND: I am not going to be a resource for you to check up on how the attorney is doing, or what choices she makes in the case.
Does that sound reasonable? Fine, if you want my help, it is at no charge to you whatsoever. I want your son to be treated fairly, both in medical care and in his financial recovery. That is sufficient reward for me.
If you want me to help, go to my site: www.SettlementCentral.Com and hit the "contact us" button at the top right. When you fill out the form, be sure to put in your e-mail address and be SURE to tell the staff that you have been invited by Dr. Settlement at allexperts.com to write to him. I get dozens of emails from strangers, and the staff just sends back a canned response unless it is someone I have invited to write to me directly.
You do not have to go into detail in the e-mail. Just identify yourself and mention the bicycle accident. I will get your e-mail address and I will promptly write back to you with a list of topics I will need in order to freshen up your bait. We need a good attorney to get onboard with your son, and we need to arrange for a discount in the event of low tortfeasor limits.
Best wishes,
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
