QuestionI was hit from behind in stop and go traffic. Within a couple of hours of the accident I started to experience very severe headaches coupled with blurry/double vision. I went to the ER and had a CT scan performed. I had never complained of a headache in my life prior to this accident. The insurance company sent me for an evaluation and subsequently treated me from symptoms related to what they diagnosed as whiplash. The headaches continued until 7 months later when an MRI was finally ordered by a neurologist. The MRI revealed a pituitary macroadenoma.
The accident was in May 2007 and tumor discovered in Dec 2007. I was under the care of a neurosurgeon for 2 years being monitored with an MRI every 6 months. Finally, in March 2010, I had the tumor removed as it started to grow to a level that required surgery. As a result of the surgery I have virtually lost my sense of taste and smell. There is hope that it will be restored but no guarantees.
So, here's my question....I retained a lawyer soon after the accident. As I was driving a company vehicle at the time, it has been separated into 2 claims. One for workmens comp and one for the negligence of the driver. I was evaluated by a neurologist chosen by my lawyer who conducted a consultation in his office. 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. After waiting almost 4 months for the report, the doctor made no mention of that discussion in his report instead chalking up the symptoms to "neorological whiplash".
The law firm has been unwilling to pursue the connection between the accident and the onset of symptoms. I have pleaded with them in numerous conversations and E-Mails to research this further. Recently, we went to arbitration and I was offered $20,000 to settle. After the workmens comp lien and the legal fees, I would be walking away with $6,500. I expressed my dissatisfaction with this but received the insurance waiver and settlement disbursement paperwork in the mail. I have refused to sign either and now my lawyer is playing hard ball. He claims that he acted on my authority and that the case is settled. He claims that no one can reopen the case.
I feel that I need a qualified second opinion on this matter. I have not been able to research a doctor that would have specific knowledge in this area.
I read a previous post of yours from 2006 regarding the same issue as mine. Can you point me in the right direction as far as finding a doctor and/or lawyer that has knowledge and experience dealing with this type of case?
I apologize in advance for the lengthy explanation of my situation. Any insight you can give me would be greatly appreciated.
Thanks,
Greg
AnswerDear Greg,
You sound like a good client who does his research, having looked at back answers and all. So you should be able to document what conversations were had regarding the alleged settlement.
BURDEN OF PROOF
Your condition CAN be caused by trauma, but the only cases I have seen in researching this online for you ALL involved direct trauma to the brain. Still, if you had a good expert witness, such as that neurologist who expressed the opinion orally, you would be able to get that issue before a jury.
You already know this, but let me say it anyway: you are NOT going to get this issue before a jury unless you get a doctor to opine that the cause of the problem is the trauma, OR that the trauma "lit-up" your condition (which I will discuss in a bit).
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.
So, where do we go today, Greg—what should you do next? The first issue is that of the settlement: are you bound or not?
FIGHTING THE SETTLEMENT
The very first thing I would do is to get on top of this alleged settlement issue. Either you granted your attorney authority to settle or you did not.
If he did not discuss the offer with you, there could be a rescission of the agreement. He acted without authority from you. The problem with that argument is that in our society we have to be able to rely upon what the attorney agrees to, or else every settlement agreement would be suspect until the client signed. That is why there are plenty of cases that state that the attorney is the representative acting with apparent authority of the client, and hence his agreements are binding to the client.
ACTION: DISPUTE SETTLEMENT IN WRITING ONLY
If you did not agree to the settlement, and you wish to fight it, then you must notify the attorney in writing ASAP. Go back and reconstruct the past few conversations with the attorney and show that there never was any discussion of your agreeing to this settlement. Discuss the fact that all of your e-mails were directed to fighting for the connection between the trauma and the tumor. How could he mistake your intent.
Tell him that your directions were clearly stated in writing and if he did not wish to follow your directions, then he was BOUND to transfer the case back to you or to another attorney of your choosing.
If this is true, that he got notice and did not honor your wishes, tell him again that instead of withdrawing from the case, he went ahead on his own, directly against your wishes, and treated the case as if he owned it.
Even if you cannot get out of the settlement, you will have some written basis for the claim next discussed.
STUCK WITH SETTLEMENT? IS IT MALPRACTICE TO SETTLE WITHOUT YOUR PERMISSION?
What if you cannot undo the settlement? If you get stuck with the settlement, and you have good proof that you never approved it, then you might possibly be in position to bring a malpractice claim versus the attorney.
The problem is: you will still have to prove that the trauma was the cause of the tumor. But at least in this contest you will be dealing with his malpractice carrier and they may be willing to give consideration to any new report you could get from a doctor.
FINDING A NEW ATTORNEY
I would start with your state trial attorneys' association http://www.settlementcentral.com/links.php personal injury attorney associations are NOT the same as your state bar association. Trial lawyers are specifically experienced to prove a case such as yours. So if there is any attorney who can do this for you, it will come from that group.
They cannot give you a list of names of attorneys, but from their website you can get the names of the officers present and past. Call a few of them and see if they or some other attorney would be interested in talking to you.
Do NOT get discouraged if you get a solid wave of "No Thanks" answers. Attorneys pick their cases based upon both the risk involved in winning and the potential reward at the end. In other words, the more money in damages that they can estimate, the higher the risk they are willing to take.
You might also have to offer them an incentive in fees. Something well above your present rate to attract them, i.e. 40%.
You will NOT pay two fees. Your new attorney and your existing attorney will divide the fee IAW which of them did what work. They know how to do this. Then your new attorney will have a right to his added percentage on top.
For example, they will divide the one-third fee, but your new attorney would have the additional 6 2/3% on top for himself (assuming you signed at 40% with him.
I have no ideas on how to find a doctor who will help you. That has to be the job of the new attorney. He has to be experienced and thus he will have worked with a variety of doctors, and we know which ones will be willing to express an opinion that is a bit aggressive.
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
