QuestionI was rear ended by a school bus in August 2006 and my attorney called me on Friday to say that the first offer was $75,000. I was truly insulted. This accident has totally disrupted my life. I was out of work for two months after the accident, went back to work in October and was in constant pain. In February 2007, my job was eliminated and although I needed to work, I was sort of happy because I needed more time to work on my health. All in all, I went to several doctors, trying to figure out why I was continuing to have more severe back spasms. In the end, it was determined that I have either bone spurs or a herniated disk or a combination of the two which are responsible for my constant back pain. I had a spinal epidural which only increased my pain. According to my doctor, I am not a candidate for back surgery.
I was also the caregiver to my disabled sister who requires a lot of assistance, ie., getting into and out of the bed, help with her ADLs, etc. Since the accident, it takes me much, much, much longer to do the things she needs for me to do and most days, I am in pain while I care for her.
This accident has negatively impacted both of our lives. I had built a handicapped accessible home for her in 2003, but when I lost my job last year, it went into foreclosure.
When I lost the house, the only saving grace I had to keep me from being homeless was to go back to college and try to earn another degree which would put me into a field whereby I would not have to succumb to the daily pressures of a regular 9 to 5 job. Although that was the plan, trying to go to class full time and provide care for my sister was too daunting. My health got worse as did my ability to provide the same level of care I had previously provided for my sister. She ended up being hospitalized from February through June of this year and I ended having to medically withdraw from the university.
I've not been able to work since February 2007 and have not had any income since last October when my unemployment compensation ended. I have a permanent back injury and although I still needed medical care, I just quit going to PT and the doctor because I didn't have insurance and could not afford to pay the copayments for the visits. I need to purchase my medication for the spasms but the generic is $75 a month and without income, I can't afford it. I need replacement pads for my TENS unit but at $40 a month, I have had to forgo that necessary aid as well.
I had hoped that the settlement would be enough for me to get back on my feet but after the attorney fees and paying back loans to family and friends who have basically kept me afloat will leave me with very little. I want to wait for a higher offer but I am so afraid that I may not get one and if I do, there is no way to guess how long it may take for them to make another offer.
I've left a message for my attorney to call me because I am not certain if this amount includes my pain and suffering, my lost wages, my future medical payments, my loss of consortium and any claims my sister is entitled to make since the accident has negatively impacted her as well. Additionally, is there any recourse for the educational loans I took out to help me train for a new career?
When I retained the attorney I explained that I really needed to have an attendant for my sister. He asked the NC Dept of Justice to consider my request and at the time, their response for me was to find someone to work with her with the understanding that when my case went to be settled, they would look at the cost and MIGHT consider paying them. I'm no rocket scientist but in this day and age, I knew that there was no way that I would find someone who would be willing to work unpaid for an unspecified length of time with the possibility of not being paid for the service they rendered. I even submitted an affidavit from my sister which documented the time that I spent providing care for her at the contracted rate which was initially presented to the Dept of Justice and that amount was over $65,000 alone.
With it appearing that several factors were simply ignored, what recourse do I have? What about the four years of mortgage payments I paid and my down payment on my house? What about the fact that I can't even get my sister into and out of my car because I can no longer lift her legs to get them into the car. We either have to utilize public assistance for local medical appointments or I have to rent a lift van ($130/day) whenever we go out of town. She has not been able to visit our father in over a year.
I am so distraught; please help me.
AnswerHi Davina,
The first offer is just that: nothing but an opening. First offers insurance adjusters make Doctor Settlement knows never to accept unless it is policy limits. Your attorney knows the same, and he will work to increase the offer. You and your family are very sympathetic plaintiffs, and THAT factor must also be considered by the school district.
I would consider asking your attorney for a copy of his demand letter so you can see what he included from the list of topics you have presented to me. I would also think about seeking a second opinion. Find an attorney with a lot of trial experience and one who takes cases to trial. THAT is what is needed, not an attorney who is going to sit in his office and try to settle the claim.
If the attorney ever tries to rush you into a settlement, watch out because that is a sign he needs the fee money to make payroll or pay taxes or some other debt.
I would NOT let your attorney know that you want a second opinion. Instead, I would select the attorney with QUALIFICAITONS and go to her office and explain to her what you need. She will obtain your file for you from the first attorney. If you decide to sign up with her, she will not charge you and additional fee; the two attorneys split the fee between them according to the work they do.
Here are also some tips to look at when contracting with attorneys, and also to consider when you think about paying fees on the GROSS amount recovered (which includes everything), as opposed to the NET amount recovered (which excludes medical costs that are going to have to be paid back). If your claim has no issues of liability or of causation for medical costs, why would you have to pay an attorney one-third to do something that was going to be conceded without any efforts on his part whatsoever?
One thing that you might ask about BEFORE you agree to any settlement, is for your attorney to send you a copy of his proposed disbursement sheet so you can review it in the comfort of your home instead of feeling pressured in her office. Have him just plug in the latest offer and send it to you so you can see in advance where each dollar goes.
Another thing I would look out for is whether or not he is taking his fee on the net or the gross. Sometimes you can negotiate that with him, especially if the subrogation was obviously owing by the tortfeasor—i.e. no dispute about a $32,000 medical treatment cost.
In that case, either get him to negotiate a reduction in the subrogation or make a reduction in her fees. Here is how it works for good subrogation information http://www.settlementcentral.com/page0459.htm
Ask him to use some of the arguments we teach our members regarding sharing the costs of getting that money. Here is a case to show to him, but it IS NO DOUBT NOT APPLICABLE in your state. http://209.85.173.104/search?q=cache:UTJsqjeyCLIJ:www.appeal-law.com/articles/ma...
See if he will at least try to get some reduction in your subrogation. If not, then argue that since the medical costs were NOT CONTESTED and since the make a BIG part of the settlement, why should you have to pay him a fee to collect them—ESPECIALLY since the money is not even going to you.
When you have a 100% LIABILITY ADMISSION, why should the attorney get one dime for collecting on the medical bills? Those were NEVER IN DISPUTE, so he did not have to do one thing to get those bills paid. ALL HE DID is get you general damages. And his fee should be figured on ONLY the general damages. Tell him that a blind dog with a note in its mouth could have won repayment of those medical expenses. Hence, he is NOT entitled to any fee whatsoever for collecting on what was going to be paid in any event.
I would check this out with your state bar association before you write to the attorney. http://www.settlementcentral.com/links.php
They will have an attorney fee mediation/arbitration service available. I have an idea he might not like the bar to know that he is charging fees on the gross amount when there is no contest whatsoever about the tortfeasor paying for the medical costs incurred.
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
