QuestionDear Dr. Settlement:
I just received a response to my demand letter from the at-fault adjuster. The letter states, “Based on the findings of the specialist in Infectious Disease, it appears that the infection was unlikely to have been cause by the accident.” The specialist letter states, “Although it is possible that this infection was related to (my) car accident, I do not think it is likely. There is no clear evidence from the review of records that this infection was causally linked to her MVA, and in my opinion as a specialist in Infectious Diseases, based in the nature of this infection and its timing, I believe this to be unlikely.”
I talked to my primary doctor about the response her letter states, “The wound {I} sustained in the MVA could have been a precipitating cause of infection as it is in exactly the same place of the infection so it is most likely a contributing factor.” Her answer is before I did an extensive research on the Internet.
I have done an extensive research on the Internet regarding my condition, the specialist answer is incomplete. She extracted a portion to base her opinion on to make their case look good. and not tell the whole story because telling the whole the story will explain exactly the complete, accurate and the truth about my condition. She is partially correct, but my experience and the documentation from all the Internet Website are the whole truth and I have a lot of proof based on documentation from eMedicineHealth, WebMd, MedicineNet.com, Health Encyclopedia – Diseases and Conditions, etc. She left the most which is favorable to me to intimidate me to take their $5000 offer and hope that I go away. I am not going away. I want to fight this to the very end and I would like to respond to the adjuster’s letter and attach my proof of documentation I mentioned above. Please advise as to the best way to handle it.
I want to fight this. I’ve been victimized once and refuse to be victimized again!
I thnk you very much from the bottom of my heart. HAPPY HOLIDAYS!
AnswerHello again, Violeta,
While I have enjoyed helping you in the past, tonight I am going to give you a spanking because you have put your claim in real jeopardy by failing to get an attorney early enough to have her do anything for you. This claim is not yours to settle at this late date, so please get an attorney to either represent you or pay someone to file and serve the claim for you before the expiration of your statute of limitations.
I should refuse to answer you because you do not yet have an attorney and your claim expires in less than 18 working days: TEN WORKING DAYS (in the holidays, attorneys do not work or knock off early on the 24th and the 31st) this year, and only EIGHT days next year before you lose your rights. And I do not want any part of a malpractice claim. I advised you in the past to take care of your claim WELL IN ADVANCE of the statute of limitations, and here you are staring the holidays in the face, and NO ATTORNEY is going to drop year end busy work to help out someone who is not even a client. You will be lucky to even get an appointment this time of year. Maybe the first week of the new year. But you best get on it NOW. Start calling as soon as you are finished recovering from what I am going to hand out to you
Your claim WILL NOT—NO WAY, NO HOW—settle before January 14, 2009 if you are asking the adjuster to send your new doctor's information and your new proof for consideration AND then to get a revised value approved by her supervisor. You are dreaming if you think the adjuster is going to drop what she is doing and entertain some additional medical records so you can settle this claim over the holidays. It is just NOT going to happen. And you are looking at only eight work days in the new year, but what you seek is a total change of her position vis-à-vis her doctor's opinion. Hence, it will take about twenty days or more for her to turn around your second salvo letter.
You did a GOOD JOB by taking the defense doctor letter to your doctor. And you did a good job of research on the Internet. Unfortunately for you, you did not get the information to your doctor and she did not make her statement in clear support of your claim. Instead your doctor "waffled" by using words such as: "could have been" and "most likely a contributing factor.” Those words will not support your claim. She needed to express her opinion in terms of it being more likely true than not that the trauma was a substantial factor in your suffering the infection. An attorney can educate your doctor about the burden of proof and show her that what I put forth just above, while seemingly not really much different than what she said, is a whole lot different in the legal context.
I want to be clear: no one is going to give you any additional money with this language, but there is no harm in your trying, I suppose. Still, if it were me, I would file the lawsuit first and toll the statute of limitations and then try to negotiate some additional money based upon a REVISED LETTER from your own doctor. I would get her to revise her letter based upon two things: first, your attorney needs to educate her about the lower standard of proof in civil claims so that she will be comfortable issuing a firm opinion. And second, an attorney needs to give her some of your research if that might help to change your doctor's mind and hence give you some more support.
As for tolling the statute, get to an attorney ASAP. Do NOT waste one day in making your phone calls. You have two alternatives: pay someone $400 to draft, file, and serve the lawsuit, thus tolling the statute of limitations. You will also pay court filing fees and process service costs. This attorney is just doing the job of protecting your claim from expiring.
You are already a SettlementCentral.Com member, so the next step is online for you to copy and paste into your own letter. You MUST thereafter to into the SettlementCentral.Com members' side Statute of Limitations Module and give that adjuster a "30 day letter" so that she will retain the claim in her file instead of handing it off to a defense attorney.
OR—and at this stage, this is my first choice—you can hire an attorney to represent you in going for something more than the $5,000 existing offer. You need to exempt that offer from attorney's fees. See the SettlementCentral.Com members side Attorneys Module to learn how to negotiate for a discount by exempting that existing offer. You normally would increase the rate on the "new money" the attorney will bring in to 38% or 40%. But because your case is REALLY DIFFICULT with your own doctor not supporting you, the rate you will have to offer the attorney will have to be higher.
I believe you can keep your existing $5,000 offer and tell the attorney you are willing to give 40% or 45% or 50% of the award the attorney brings in that is in addition to that $5K offer you already have. Offer whatever high percentage of fees you need to just to have representation. Why? Because on your own, faced with a medical and legal burden of proof situation that is now complex, you are out of your league and you need professional help.
I think that your attorney will see that the defense doctor misstated the burden of proof and thus his opinion may not be admissible into evidence. More on that later, where I will give some information for you to share with your attorney. But first, let's go back and see what we have said regarding proof on this BIG item of damages.
In my past answer to you, I stressed that without a good commitment from your own doctor—or any medical specialist for that matter—you will not prevail on this issue. Here for your review are my comments [in brackets] sent along with a review of your demand letter:
#1. Your doctor has the following in her records: "DIAGNOSIS: Right hand cellulitis. Finding is compatible with congestive heart failure or pneumonia." My comment to you was: [This is the diagnosis part, and they DO NOT MENTION any auto accident. All they talk about is CHF or pneumonia—so how do we move this into the arena for talking about the auto accident?]
#2. [Who is making a connection between this accident and your developing cellulitis? Someone has to connect that right hand wound to the accident, and then make the jump to the infection. The redness would appear to be a sign of cellulitis, so who said that an infection of the skin was caused by this accident? Your right hand wound is the key here, and someone must bring it up. Check your records.]
[Since the only key to this big cellulitis claim that I CAN SEE is your right hand wound, you will have to tell how you got that right hand wound from the trauma suffered. Tell them how you bandaged the wound and did not get treatment until your pains increased two days later. If you cannot tie that right hand wound to this accident, you can kiss the cellulitis claim goodbye, unless I am missing something in your medical reports.]
So, my question to you is, were you able to use my suggestions to get your doctor to tie the trauma to a wound to your hand, and thence to waiting two days before seeing a doctor, and thence to the infection? Otherwise, there is no connection that I can see. It seems that she marginally bought into the idea, but you needed to stress that you had an abrasion or cut of some kind FROM THE ACCIDENT, and for two days following the accident until you were treated. Even if it was not sufficient size for her to have any mention into your medical record, and even if you did not think of this cut as anything worth talking about in that first visit, I would continue to build on the idea that you got the cut during movement of some kind in that accident. Other than that wound, there is no expected mechanism of injury in a low impact (i.e. less than $1,000 in damage) accident which would cause you to spontaneously get an infection just from sitting in a car that got hit.
Now, Violeta, this information that follows is to show you some of the difficulty you face if you do this alone. This is why you must get legal help now. Your attorney SHOULD see some of this so that she knows at the start that she needs to get your doctor to revise her letter.
Next, let's attack the report from THEIR specialist AND from your own doctor. BOTH DOCTORS NEED EDUCATION ON THE BURDEN OF PROOF IN CIVIL TORT ACTIONS. In proof of medical opinions, doctors OFTEN misstate the burden of proof, thinking that they must have "clear evidence" (the term used by their expert). In fact, all that you have to prove is that the trauma was a SUBSTANTIAL FACTOR in the disease, by a PREPONDERANCE OF THE EVIDENCE. That means more likely than not. Here are the two statements from their doctor and from your doctor.
Their expert states: "There is NO CLEAR EVIDENCE from the review of records that this infection was causally linked to her MVA, and in my opinion as a specialist in Infectious Diseases, based in the nature of this infection and its timing, I BELIEVE IT TO BE UNLIKELY."
Your doctor states: "The wound she sustained in the MVA could have been a precipitating cause of infection as it is in exactly the same place of the infection so it is most likely a contributing factor.”
Their doctor clearly overstates the burden of proof when she states that there is "no clear evidence". Hence, one could jump on that and respond that you do NOT have the burden of proving anything by the standard of "clear evidence", which is similar to the much higher standard of proof called "clear, cogent, and convincing evidence". NO, your only standard of proof is that your theory is more likely than not true. We call this the preponderance of the evidence (see below).
But, their doctor does in fact state at the end that the connection you seek to make "is unlikely". I do NOT think that she made that statement on a more likely true than not basis. She meant that it is unlikely BECAUSE there was NO CLEAR EVIDENCE. Hence, your attorney should contend that her opinion is NOT admissible into evidence since it is based upon a much higher burden of proof than is necessary to prove your claim. I would respond in that fashion. Let your attorney consider this argument, since it is clear that their doctor did not make an opinion based upon the actual standard of proof. And hence, her opinion that your position is UNLIKELY.
As for your doctor, have your attorney approach her to educate her that all you have to prove in order to have her opinion count is that by a preponderance of the evidence the accident injury is a proximate cause of the disability on which your claim is based.
Your attorney needs to tell the doctor that this cause, namely the accident trauma, is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. Surely your attorney can get your doctor to rewrite her letter to state that on a more likely true than not basis, the accident trauma was a substantial factor in your infection. That is ALL SHE HAS TO SAY. Of course, anything she can add to that will be helpful in convincing the adjuster to change her mind.
What I am going to suggest, Violeta, is that you take your claim to an attorney ASAP and have her review it to see if you can attract her to take it on. You will have to offer a higher than normal fee percentage since your major value in the claim lies in a difficult to prove area. You can exempt your $5,000 existing offer and then give the attorney a very big percentage of what she can get in addition to that offer. I would NOT recommend going forward on this any further on your own since the concepts that you must now use to argue for your position are more complex, as you have seen.
At first, most attorneys will not even agree to see you or and those that do will not be inclined to take your case since you have a real uphill battle to make the connection to your major item of damages. Hence, make it clear BEFORE the prospective attorney turns you down that you recognize that you are bringing her a difficult case, and you will put some reward in it for her by increasing the rate of attorney's fees substantially. I have in mind something along the range of 40%, 45%, or even 50% of everything they can get ABOVE the $5,000 offer you already have.
If you do not hire an attorney, you will not see any real value for this big item of damages. But if you do hire one, what is there to lose, since you will bargain for the exemption of the $5,000 existing offer? So feel free to offer up to 50% if need be, to attract an attorney to take on this claim.
I trust that my 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
