Pain and suffering injury claim post surgery

by Guest » Tue Mar 27, 2012 05:23 pm
Guest

Hello,
Looking for some self help advice on our personal injury claim. I'm trying to be informed during this process, and don't want to insult the adjustor with a rediculuous demand.
My husband was a restrained passanger in a head on collision into a tree., 40-50 MPH in icy snowy conditoins. Driver too fast for road condidtions, on country back road. Car a toal loss, airbags depolyed, my husbands blood all over the car.
He had had surgery to re-attached lacerated tendons repaired on his hand, multiple fractures of his hand, and fiblula/ fracture along with fracture of other bones in his foot. Medical bills (billable-40K) . Our health insurance did pay out lower on contractural rates. Ongoing PT to avoid scar tissue on tendon repair, and to attempt to regain a level of funcion.
Resonable starting point? I have the package togethter for the adjustor with all billables, all medical records and will send it myself.
He did suffer, this is not a soft tissue injury...just the legitimate surgery & crushed foot stuff!
I must add that the insured driver was with GEICO and in NY state. (no fault state) Accident took place in VT. (at fault state)
This is purly a pain and suffering claim.
Advice appreciated for how this process works, and a reasonable initial requested ammt, vs expected compensation. This compensation has to pay our medical bills under suborgatoin-claim already put forth by the med insurance.

Total Comments: 7

Posted: Tue Mar 27, 2012 11:58 pm Post Subject:

First, see if the adjuster will tell you the other person's policy limits. I have a feeling this is going to be an issue.

What you need to consider is the pain/suffering but also possible future complications. I could easily see this being a $100,000 case. If the other person has $100,000 or less then there is no real issue in what to ask for. Most people don't carry more then $100,000 in BI coverage and many have far less then that. Do you have UMBI on any auto policy you may have?

Did the drivers carrier extend NY PIP coverage for the medical bills? This would have a minimum limit of $50,000 so I'm thinking that they did.

Posted: Thu Mar 29, 2012 11:51 am Post Subject: P & Suffering post surg

First off, thanks for responding to my somewhat long query!

Driver is covered $300,000/$300,000 liability, so no issue here. He did not have the med pay. The deductibles are all rolling in now, so we're paying them, and our health insurance the rest. Our ins company is out less than the billed ammoun. I do get a little confused when attempting to figure out the value of our claim in relation to billed medical 40K, and paid medical. What is considered?

Honestly, he is not able to play with the kids, nor pick them up (I have little ones), he's a young guy, and plays golf-not any more-and runs daily-not for a while. It's been a struggle for me taking him into work at 5:45am, kids in tow, then getting myself into work, because he can't drive! This happened early Jan.

Severed tendonds to have a high rate of scar formation, and he would likely need surgery to remove it in the future should his progress start to reverse. So, the only future care I can thank of is another surgery & more PT. So, I'll keep that in mind.

I guess my big questoin, is a settlements in that ballpark possible without getting an ambulance chaser involved?

We do have Under Insured Motorist up to 250K, but don't think we need to go there given the drivers limits.

Posted: Thu Mar 29, 2012 12:54 pm Post Subject:

This could easily be more than the $100,000 claim that tcope mentioned. If, after everything becomes "stationary", there is a permanent reduction in (or complete loss of) the use of your husband's hand, you are facing a much larger settlement.

It appears that you allowed your personal HMO/PPO to cover the medical expenses. Although this was not the best way to handle this aspect of the matter -- since your health insurance is NOT intended to pay for such losses -- your health insurance company is now entitled to recover 100% of what it paid on your husband's behalf to hospitals, doctors, surgeons, therapists, and whomever else (laboratory services, radiologists, etc).

It does not matter what the "billed" amounts were. The insurance company is only entitled to recover its actual "loss" -- the amounts it paid to others. Those persons are not entitled to recover any additional amounts, unless those amounts are not covered by your insurance.

You cannot collect your medical expenses from the at-fault party's auto insurance without paying that money back to the health insurance company -- a principle known as "subrogation." But you can obtain recovery of 100% of your own out of pocket expense (deductibles, coinsurance, copays, uncovered expenses and your husband's transportation expense to and from medical appointments, lost wages, and other directly attributable monetary losses). These are all part of the "special" or "specific" damages portion of your claim against the at-fault party. Obviously, future medical expenses cannot be ignored, but should not be paid for by your own health insurance company.

Then you can begin to discuss the "general damages" portion of your husband's claim: the so-called pain and suffering, loss of use of his hand, the loss associated with not being able to play golf or be involved in other activities (in my life, golf is worth $0; being able to type expert witness reports is worth thousands of dollars).

But . . . your husband is not the only one who has suffered a loss. You and your children have also incurred "damages" for the loss of "love and affection" of a husband and a father (not being able to "play" with each of you in various ways).

Now you can see how this could easily be adding up to far more than $100,000 -- possibly more than $300,000. Medical expense (past, present, and future) were, are, and will be a large portion of that.

Although you should never do business with an "ambulance chaser", the amount of money at stake here is considerable. You know that, and the at-fault party's insurance company also knows that. They also know that when an attorney gets involved, the amount of the claim will increase, since the attorney will likely be on a 30% to 40% contingency retainer, and will seek every penny he can. And you know the attorney will collect his portion off the top, even before your health insurance company is reimbursed. So you will lose that 30% or more. Which is $100,000 out of $300,000. Take off $100,000 of medical expenses, and you're left with $100,000. You could have asked for $200,000 without an attorney and been in the same position.

So here's my advice: If you believe you have the tenacity to manage this claim on your own (it's not all that tough) and will not be intimidated by the insurance company, then start by demanding the full policy limit and see what the response is (knowing that you cannot keep all the money, as explained above). If you believe the total claim could consume both the at-fault party's policy limits and your own underinsured motorist limits if applicable (but I'm not certain that would come into play since your husband was a passenger in someone else's vehicle, not driving his own -- NY law could be different than CA law on this), then you would have to involve your own insurance company in the discussions, too. (You need read your contract -- or call your insurance company -- to find out if your UMBI coverage applies when an insured is a passenger in someone else's vehicle -- it usually does not).

If your UMBI does not apply, and the total damages are going to exceed $300,000, you will most likely need to obtain legal counsel because you will have to sue the at-fault party for the total loss, and his insurance company will pay up to the policy limits, if you win the suit. That could take five years or more to come to a conclusion.

If you would be willing to settle for the policy limits, knowing that you would have to use that money to first reimburse the health insurance company for its loss, and to also use that money for future related medical expenses (due to the original third-party cause),and the balance would then be your husband's to do with as he pleases. then demand that from the beginning and don't change your stance. It will save everyone the time and expense of litigation.

Hold that fact over the head of the adjuster and stand your ground. Show no fear of the insurance company or its representatives. Do not discuss the possibility of reducing your demand. Make them come up to you or take them to court for the full amount.

In court, if you can show that the insurance company failed to negotiate in good faith, as they must, then you may also have a claim against the insurance company, which can be worth much more. That will definitely require expert legal counsel.

Feel free to ask as many questions as you have. You can also email me (link below) for more confidential responses.

Posted: Thu Mar 29, 2012 02:38 pm Post Subject:

your health insurance company is now entitled to recover 100% of what it paid on your husband's behalf


In most states, yes. In some states, no. Some states allow double dipping.

Also, the amount owed back (if any) can always be negotiated. Most likely the health carrier would accept less then 100% recovery. The OP's argument is that they were not compensated 100% for their loss (for example, what if the OP needed future medical treatment. How much of the settlement is for that. Also, how much was paid toward pain/suffering instead of addressing actual medical bills. So it can always be argued that the other carrier paid less then 100% of the actual medical bills.

Personally, I'd settle the loss and then keep the amount of the medical bills in the bank. If after a year or so the health carrier does not asked to be paid, then I'd figure they are not going to ask for the money. The money is not owed unless they ask for it back (for the reasons mentioned above).

You cannot collect your medical expenses from the at-fault party's auto insurance without paying that money back to the health insurance company -- a principle known as "subrogation."


You can... as this is such a grey area. The OP is not an agent of their health carrier. The health carrier should be investigating the possibility of subrogation on all claims and if it exists, putting the correct parties on notice. If they choose not to do this they can't then require their insured's to at as their agents/employees and seek recovery for them. Yes, the health policy states the health carrier has their insured's right of recovery but this does not require the insured to seek out money on the health carriers behalf.... only that the health carrier has a _right_ to be paid. The health carrier still needs to _ask_ for their money back.

I agree 100% with Max... this might be a case for an attorney to become involved. A small difference in this case could easily mean $20,000. If it were a $5,000 claim then a small difference might only be $200.

I'd _certainly_ be asking for the $300,000 and letting the carrier know the claim is well in excess of that amount (and that you will be seeking recovery from your UM carrier). This is where you need to have a pokar face. You need to let them know, without a doubt, that this claim is more then $300,000. You may not think it is, or you might be willing to take less but your job is to convince the adjuster that you _know_ the claim is worth more then the limits. You are off to a great start, outlining every aspect of the loss. All of these things need to be mentioned as they are _all_ valid and very good arguments for top dollar. Include what Max mentions. I know I keep implying that you, the OP, suffered the injury and I know this is not correct... it was just easier to type that way. But Max is correct... you also suffered a loss. You went through this as well... worrying about your husband, you will need to care for him and do certain things for him now, you both will not be able to do certain things as he cannot, etc. If you were to file suit, you'd be a plaintiff as well.

Personally, I'd argue for the $300,000 limit and not go lower for a long time. Know that the adjuster will offer something like $60,000 to start. Stick to your guns and let the adjuster know you understand the offer but you can't come off the $300,000 since it's worth well in excess. Let the adjuster know if the $300,000 is not offered, you will need to hire an attorney and file suit for more then the $300,000 (leaving their insured exposed for an excess judgement... i.e. responsible for the difference between the $300,000 and the actual amount of the award). Explain everything above and don't move off the $300,000. Let then know to contact you when they will offer that amount. Give them 30 days to make that offer before you move forward. The adjuster will keep offering a little more. Thank the adjuster for moving but just let the adjuster know that you cannot possibly move off the $300,000 and explain more about the loss.

If the $300,000 is not offered then at some point you need to decide if you will use an attorney. The draw back is if the attorney gets the same amount as the last offer or just a little more. You then need to pay the attorney 1/3 of the settlement. But they attorney is also going to know the ins and outs of other things, like paying back the health carrier and the best way to protect yourself there. You could always get the best offer and then sit down with an attorney and discuss the situation. The attorney _will_ be willing to talk to you as this case means a lot of money!

Lastly, I'd check on those limits. It's either an incorrect split limit (per person/per accident and incorrect as split limits would not be the same amount) or flat limits of $300,000 BI and $300,000 PD. Most personal policies don't have flat limits and the PD usually less then the BI and usually not that high. I'm thinking the person might have 100/300 BI ($100,000 per person and $300,000 per accident).

Posted: Tue Apr 03, 2012 12:24 pm Post Subject:

The drivers limits are 300/300K, so ok there. We also have underinsured up to 250K.

He did not have any medpay. So, we've paid out all the bills that our health insurance hasn't covered. It's starting to add up quite a bit on our end.

Posted: Tue Apr 03, 2012 12:46 pm Post Subject:

Sorry I was reposting..I had a hard time finding your responses!! Thanks again for them!

Can the medical facilities (hospital/ER/Surgeon) come after us for the full ammount billed? Not the ammount our health insurance agency contracted to pay. Just wondering if this is an addtional suborgation. I found some information on that on the internet.

Trying to ballpark our payback to these institutions to factor in accordingly.

Just to confust things more, MD's & surgery took place in VT & CT. (Accident VT) Car ins of the driver in NY! Our health insurance is in CT.

My first mistake is now apparent........I asked for half the lilmits reported to me, 300K....my first mistake without a lawyer. (as I just received a response letter to our settlement offer, and in that they let me know the drivers lilmits of 300/300-it was a BMW 5 series, so maybe the driver had higher ins limits, is that possible??) In some responses from you all, I now think we asked for what we really should be getting.

If we go the lawyer route, I'm assuming they could up the request? I haven't shot myself in the foot by asking for lower than this case is probabl worth?

Posted: Tue Apr 03, 2012 03:20 pm Post Subject:

Can the medical facilities (hospital/ER/Surgeon) come after us for the full ammount billed?


No, not if they contractually agreed to accept a lesser amount from your HMO/PPO provider. But whatever amount your insurance company paid, they have the legal right to recover 100% of that from you (or the third party's insurance company) -- it's just easier to get it from you because you are doing all the work for them.

so maybe the driver had higher ins limits, is that possible??


Anything is possible, but the insurance company has no reason to lie to you -- it is a crime if they do. But there may be an umbrella liability policy you (and the auto insurer) are unaware of.

Although the choice to hire an attorney is yours to make, you should first attempt to negotiate a reduced settlement with your health insurance company (they should easily agree to 50% or less). And you would absolutely want to negotiate that BEFORE you accept any settlement offer from the third party or their insurer. Find out first if there is an umbrella liability policy available (it would be for at least an additional $1,000,000), because once you settle, if you later find out there was more money on the table, you can't go back for one penny of it.

But you wouldn't even want to settle right away if there is any doubt as to your husband's future medical expenses or loss of income. If this is going to end up being a genuine permanent disability and reduction in income, you will want an attorney to litigate the matter for the maximum possible award.

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