Dennis C. Hogan
What is my claim injury worth?
Before I attempt to tell a client or potential client what their injury claim is worth, I must collect a client’s medical bills and reports, and the facts about how the accident changed their life. Since 1987 I have been evaluating injury cases. I began while working for an insurance company. I worked there 12 years before going to law school and have evaluated injuries as a lawyer since 2002. Every body is different so naturally every injury case is different. All the factors of the individual and the injury must be brought together to evaluated a case.
A realistic evaluation is important so we don’t leave money on the table when negotiating but also to know what is a good amount to accept as settlement instead of delaying receiving your money. The alternative to settlement is to continue the process which takes more time. Litigation in the courts requires more time and money. Knowing what is a fair settlement allows us to weigh the relative value of the costs of litigation.
A variety of factors are brought together to determine what an individual claim for injury damages is worth. The final say on the value might be given by a jury. Therefore, attorneys and adjusters evaluate a case with an eye toward what a jury might award an injured person. The value is a combination of the dollar cost of the medical bills necessary to bring the injured person back to their pre-accident condition (not returning to pre-accident condition is the subject for another blog entry), the value of the wages lost because the injured person could not work, plus an amount of money to compensate the injured person for the pain and the suffering experienced because of the injury. The difficult part of this equation is putting a dollar amount on pain and suffering. This is the place for your attorney to make a difference because the amount is negotiable.
The discussion during the negotiation focuses on the indicators of genuine pain reflected by the medical treatment and bills, versus the medical bills and treatment not reflecting actual pain. Stitches to an injured person’s head are a certain indicator that the injured person suffered pain. A cut is visible, it is an objective sign of injury, and a doctor needs to actively treat it. On the other hand a patient’s complaint of pain by itself, might not convey actual pain and a patient insisting on having an MRI may not reflect pain or even a medical need.
To image a spectrum with the extremes of bills that reflect pain versus medical bills that do not reflect pain: place ‘an ambulance from the scene of accident and emergency room bills’ on one side the spectrum; and on the other side ‘monthly visits to a chiropractor a year after an accident.’ The ambulance and ER visit is done without forethought and possibly the decision to have those services is made by someone else who determined the patient’s need to have medical care. Since their is an independent party acting almost as a witness to the patient’s injury, anyone would accept the notion that there is truly an injury.
On the other side of the spectrum is the chiropractic visit. Many would doubt a chiropractor appointment one year after an accident is the result of the accident. Chiropractors recommend treatment of once a month adjustments even when a person is not injured. Therefore, it is easy to argue that the treatment is not accident related.
Every medical treatment and its corresponding bills is somewhere on this spectrum from revealing that the ‘patient experienced pain’ to giving ‘no indications that the patient experienced pain.’ However, no guide exists telling us where each factor should sit. This lack of a guide creates the gray area in which attorneys argue about whether medical bills reflect the patient’s pain. Some of the treatments that clearly indicate pain are evidence of a blow to the head, stitches anywhere on the body, and fractures on any boney material of the patient.
A diagnostic examine in and of itself does not indicate pain. So for example, a patient might go through six weeks of physical therapy without healing the pain for which the physical therapy was prescribed. The physical therapy reflects the pain the person is in by its length in weeks and the modalities necessary at each appointment. When the patient fails to heal the treating physician may send the patient to have an MRI to determine if a problem exists that cannot be detected by x-rays. The mere fact that the MRI costs about $2,000 is not an accurate indicator of the pain the patient is experiencing. So although the claim is now worth $2,000 more to compensate for the medically necessary bill, don’t expect an evaluator to reflect much more pain based on a large bill for a diagnostic test. If the MRI finds nothing, the MRI doesn’t indicate more pain. If the MRI finds something, the treatment for what the MRI found is what will add to the perception the patient was in pain.
So here is how you can come up with the neighborhood of the value of a claim. Generally the amount accounted for in an evaluation for pain is the bills that reflect pain multiplied by a factor between two and seven in some states. Then the total amount of bills is added. Then the amount of lost wages is added. The defense seeks to diminish the factor used by arguing against the need for treatment. They will argue against the treatment being necessary for the injury and or the injury being a result of the accident. On the plaintiff side argument can be made to increase the factor used because the condition of the plaintiff causes more pain than the average person. Also, the plaintiff’s attorney will argue how the plaintiff’s life was disrupted while recovering, and how the plaintiff’s spouse suffered because the plaintiff was unavailable for things like household activities (consortium).
The value of a case is determined by a variety of factors that affect each other in as complicate a way as a Rubik’s Cube. Not only is that good reason for me not to guess at the value of a potential client’s case, it is the reason an injured party should seek representation to assure that they are properly compensated.