QuestionQUESTION: I was in a very serious accident where another driver made a left hand turn in front of me. I was lucky, in that the motorist in the left lane managed to avoid the oncoming vehicle (blocking my view of said vehicle) but they stopped at the scene and kept the at fault motorist from further injuring me. The at fault driver exited their vehicle with their fists balled up and cursed me while coming toward me in a threatening and menacing manner. I was hit so hard that my doors buckled shut, the aerosol cans in my vehicle exploded and I was unable to get out of the seatbelt or open the door. The other driver was sited with failure to yield the right of way, DUI, and failure to provide proof of insurance. The prosecuting attorney allowed the other driver to plead down the DUI to reckless driving(the other driver refused to blow in the breathalyzer).
Initially, my eyes blacked shut (the entire motor of my vehicle collapsed into the front of my vehicle), my forehead swelled(when I looked up, I could see my forehead), I had head and limb contusions, my breasts turned black and I had whiplash coupled with an enormous headache. I consider myself to be lucky because the EMT said, "You should be dead."
At the hospital, directly following the accident, I was given a CAT scan on my head and neck, as well as X-rays to my limbs. I hired a lawyer because, even though my vehicle was in storage, the claims adjuster insisted on coming to my home 3 days after the accident (even after I informed him my eyes were blacked shut). I can only conclude that the adjuster wanted to get a good look at me after looking at my destroyed vehicle.
After my bruises and contusions healed, I was unable to return to work. My doctor advised me that driving with double and blurred vision, coupled with vertigo, would have equated me to driving while impaired. I was referred to a neurologist by my primary care physician because of my head, arm and neck pain.
Initially, the neurologist did a serious of neurological tests including an EEG because of my memory loss and tremendously prolonged (3 day) migraine headaches. Approximately 3 months after the accident, the neurologist recommended an MRI with contrast because I now have shooting pains my arms and they have started to tingle and feel heavy (which makes even the easiest of tasks impossible). The MRI shows a bulging disk in my neck which is causing nerve damage. I have received injections but they honestly don't work anymore.
The neurologist referred me to an ophthalmologist because the double and blurred vision had not gone away within 4 months of the accident. The ophthalmologist ran a battery of tests on my eyes concluding that I will probably always have blurred vision because of the injury to my head.
I have returned to work but I am unable to work more than 3 days a week because I have a ruptured disk in my neck and I continue to have blurred vision when I am tired or stressed out. My questions are as follows: how long after a demand letter is made, will the claims adjuster respond with a settlement figure? Based on my lost wages of $13K (the neurologist did not release me to light duty work until 26 weeks after the accident) and my current medical bills of $17K, what is a fair settlement amount? How long should I should I wait to file suit against the insurance company if I haven't been offered a fair settlement amount? Should I be prepared for a long and extensive battle?
With Sincere Appreciation,
Jane
ANSWER: Dear Jane,
I am in deepest empathy for your suffering—both past and what you will face in the future. Since your injuries are among the most serious that I have seen here at allexperts.com, I am going to give you a lot of extra time to explore a number of topics that you did NOT ask, but which I think you should know.
I will first answer your question, and move to the new topics after that. I am going to make some observations about your attorney. I do NOT want you to share them with your attorney—these are just for your use—OK? Here is an outline of the topics we will discuss. Ready, Jane? Take your time because I am going to put a full hour or more toward helping you, and I want you to read it over carefully and discuss it with someone you trust.
#1. Should I be prepared for a long and extensive battle?
• LONG HAUL ON MEDICAL?
• LONG HAUL ON FINANCIAL RECOVERY?
#2. Claim value vs. policy limits vs. tortfeasor's assets vs. UIM limits vs. subrogation claims
#3. Traumatic Brain Injury Cases AND POSSIBLE temporomandibular joint syndrome
#4. Attorney's fees vs. policy limits and UIM limits that are both low
#5. Getting a second opinion; switching attorneys
#6. NEVER try this on your own: no do-it-yourself UNLESS very low limits
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#1. Should I be prepared for a long and extensive battle?
LONG HAUL ON MEDICAL?
YES, you are in for a long haul on medical side of healing. I think that you have not yet even seen the specialists you will need to see, and even then, your body and brain are going to take a long time to restore themselves.
I disagree with any doctor who does not send a patient in your condition for a neuropsychological examination. That is the best way to identify the brain dificiencies that you suffer as the result of the trauma. So also suspect a lack of experience in handling brain injury claims on the part of any attorney who has not told you this and moved to get such testing done.
See #3. Traumatic Brain Injury Cases AND POSSIBLE temporomandibular joint syndrome, below.
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#1. Should I be prepared for a long and extensive battle?
LONG HAUL ON FINANCIAL RECOVERY?
It depends upon the amount of insurance available and whether the tortfeasor has any assets to go after. Let's say that the tortfeasor has no assets and only minimal policy limits. If that is the case, then his part should have been done a long time ago since your claim has a HUGE value.
Same thing on your Underinsured Motorist Coverage (UIM) claim. If your limits are low, the case will be over quickly.
Neither his company nor your company is going to hold you up for getting your money if your claim value is a multiple of their limits. They will pay ASAP once the demand package is sent to them, and NO—you will not have to file a lawsuit.
On the other hand, if the policy limits for either or both policies are HIGH, then you can expect that the company will want solid proof before awarding top dollar. That may involve taking your deposition because they will want to see you and access your capacity as a witness before they pay the entire amount of their high limits. So—what is the value of your claim?
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#2. Claim value vs. policy limits vs. tortfeasor's assets vs. UIM limits vs. subrogation claims
Let me start right out by saying that your medical bills do NOT have any relevance to the value of your claim.. You have a serious brain injury claim. And serious bodily injuries. Sometimes people try to use a multiple of medical bills to get at a claim value ballpark.
But this is only in smaller claims, with no lasting problems such as you will have.
The combination of the horrific trauma and all of your injuries leads me to guestimate that the value of your claim, all inclusive, will be well in excess of $100,000. It could easily be a multiple of two or three times that amount, depending upon how you heal and what long term wage loss you suffer.
You may be asked to make a choice as to whether or not to take the tortfeasor's policy limits. Why wouldn't you accept such an offer? You should get a legal opinion on this, including an assets check of the tortfeasor. Directory of Legal Information http://www.settlementcentral.com/page0451 htm Liability Insurance Policy Limits Settlements in Personal Injury Insurance Car Accident Claims.
If you accept the policy limits, that is IT---NO FURTHER CLAIMS VS. THE TORTFEASOR. No matter how bad things get, you will not see another dime from the tortfeasor.
Your attorney has a very simple way to discover the policy limits, and I am ALARMED that he or she has not done so to date. He can also discover the assets of the tortfeasor if the limits are offered. The insurance adjuster will cooperate to get the assets information to your attorney, or if she does not cooperate, then your attorney has the right to such information using "discovery" procedures.
If you want to retain the right to sue the tortfeasor, then you will pass on the offer of limits. But be advised that the judgment you obtain against the tortfeasor can be discharged in bankruptcy, with this exception. He MAY NOT be able to discharge your judgment in bankruptcy if he was committing a criminal act at the time of the tort. DUI may qualify in your state. Your attorney MUST get the opinion of a bankruptcy attorney on this issue. Can you prove the facts to demonstrate a DUI in bankruptcy court if he was not convicted of same? The police officer who saw his case reduced will COOPERATE in making full proof in the bankruptcy court if it is allowed.
Think of it this way: if he gets to discharge your judgment, then all you get is his assets that are above the value of your state's exemptions.
If he does not get to discharge your judgment, then you could take what assets are available, plus have continuing rights of garnishment and the right to knowledge of all his bank accounts and work places for as long as the judgment remains unpaid and "live" on the books (usually 10 years, with renewal rights in some cases).
The next topic herein is that of subrogation. Make darn sure that your attorney is going to fight against subrogation efforts of your own health insurer and your own auto insurer. Also, USE YOUR OWN medical insurance and PIP and fight subrogation. Introduction to Subrogation— http://www.settlementcentral.com/page0459.htm Forced Payback to YOUR OWN Insurer From Your Personal Injury Award.
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#3. Traumatic Brain Injury Cases AND POSSIBLE temporomandibular joint syndrome
Here is some background on a moderate head injury. Take a look at this list and tell yourself how many of these symptoms do you honestly still have.
How hard did you hit your head? It sounds like a pretty hard whack. So, let’s first address that topic of the most significant potential injury, your 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 you DO HAVE A MODERATE BRAIN INJURY.
Let’s first examine what is a concussion and what is a loss of consciousness. You DID HAVE A CONCUSSION, that much is for sure, since you hit your head. So traumatic brain injury is in play in your claim since you 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 her 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 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 open and close your mouth. If the disc is far out of place, you will feel a click. Better is for someone to stand behind you as you are seated and perform the same test. That person can feel the click if your jaw joint disc is far out of place.
WHAT TO DO ABOUT REFERRALS: If you feel that you do 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 doctor 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 you would need: a neuropsychologist to test and to treat the 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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#4. Attorney's fees vs. policy limits and UIM limits that are both low
I am NOT casting any aspersions upon your attorney, but I would be remiss in such a huge case if I did not warn you about the probability that most attorneys will take a fee in excess of what their Rules of Professional Responsibility define as a fair and reasonable fee.
They cite their contract with you, and take the percentage. They make you think that they have to do a lot of work by delaying. Sometimes they KNOW the limits are low, but they do not tell their client. It is a common practice for attorneys to hide the defendant's policy limits from their client whilst they do all kinds of work, hoping that the client will think that their efforts were necessary to make a recovery. THAT IS NOT TRUE in many policy limits cases.
Your state bar association http://www.settlementcentral.com/links.php will NOT PERMIT A FULL FEE in such a case. The bar has issued Rules for Professional Conduct and RPC 1.5 governs attorney fees and IT TRUMPS YOUR ATTORNEY'S CONTRACT.
Say, for example, if the tortfeasor's policy limits are less than $50K, you should NOT PAY FULL ATTORNEY FEES. A blind dog with a note in its mouth could get a settlement for those limits. If that is the case, or if the attorney has not yet sent her interrogatories to ask about the policy limits, then get on top of this ASAP.
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#5. Getting a second opinion; switching attorneys
Your case is so big, and the facts you are asking me and your attorney has not educated you or found specialists for you lead me to suggest that you seek a second opinion.
In the first place, no attorney, no matter what his experience, has any business handling your case unless he has a proven record of handling brain injury claims. This is not the time you want to be the "first" on somebody's experience list. Your case is too big and too much can be lost by someone who has not done this before. Such an attorney is in over his head, at your expense.
I would seek out experienced attorneys who can demonstrate proven success at brain injury claims. You are entitled to a second opinion, and NO—you do NOT have to ask your existing attorney. Do not even tell your attorney. The second opinion attorney will let you know how your case is going. And if she wants to see your records, SHE (not you) will obtain your file for review.
Also, ask the attorney if there are any other potential tortfeasors, such as poor road or intersection design or landowner who let brush grow over the right of way, blocking the view of traffic.
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#6. NEVER try this on your own: no do-it-yourself UNLESS very low limits
Www.SettlementCentral.Com teaches insurance claim settlements do it yourself, or pro se. But I do not want you to buy a membership and try to do this on your own. There is just too much at stake.
The ONLY exception is if both the tortfeasor limits and your UIM limits are so low that they are willing to pay them to you. In that case, we can show you how to fire your attorney and keep the fees low so you get the full benefit of both limits.
If it turns out best to fire your attorney and go forward on your own, then write to me AT the "contact us" block on my website; www.SettlementCentral.Com . Make sure you mention this allexperts.com invitation to write to me inasmuch as the staff rejects all other mail I get. I will get back to you and see how we can help.
That is it, Jane. I could add some thoughts about getting into some positive non-judgmental spiritual way, since that helped me through a dark time in my life. But you can write if you want any suggestions on that topic.
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 to you Jane—I will be thinking of you and seeing you healed and whole,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
---------- FOLLOW-UP ----------
QUESTION: Dear Dr. Settlement, J.D.
This is an enormous amount of information for me to process at one time. I did research my state site for "Rules for Professional Conduct and RPC" and the site came up null: more specifically, "No documents found relating to your query." My lawyer has submitted a demand letter (over 3 weeks ago) for what she "believes" are the at fault driver's policy limits (100K); however, she also told me that the at fault insurance company is refusing to disclose the policy limit amounts at this time. I an thoroughly at a loss as to how I can relieve my lawyer of their duty. Furthermore, I am hesitant to post my state in this post on the off chance that the adjuster is surfing your site. I will heed your advice and do more homework on your suggestions. Unfortunately, I am absolutely confused about a few of the points because of the complications in the case. Which subsequently, I cannot post in the public forum (as these highly specific points will, without a doubt, clearly point to me and my case). Would it be absolutely inappropriate for me to ask them in private? I honestly have no problem with them becoming public after a settlement has been negotiated. I have so much more to ask you but I am exhausted, as today was filled with doctor's appointments, pharmacy visits and continual calls to my lawyer (that went acknowledged).
With Sincerle Appreciation for Your Time and Consideration,
Jane
PS For some reason my system failed to connect to the spell check during this session. Thus, please forgive any incorrectly spelled words.
AnswerThank you kindly for the remarks you made in feedback. I appreciate that.
OK, Jane, I can see that you need some help. Go ahead and write to me at the best online auto accident claim help http://www.settlementcentral.com self help insurance settlements.
Here are my instructions from last time I wrote to you. Use the "contact us" block on my website. Make sure you mention this allexperts.com invitation to write to me inasmuch as the staff rejects all other mail I get. I will get back to you and see how we can help.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
