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V. Damages Articles

A QUESTION OF BALANCE

Jurors on soft tissue injury jury trials tell me how hard it is to decide on the right number for damages. In a soft tissue case, like a whiplash neck injury or a strained back from a lowimpact car collision, the injury can be very painful and disabling in the beginning, but usually is much better within about two to six months. The effects of the arthritic damage will not become obvious until years later.

Bell County jurors want to be fair. They want to make the careless party accept responsibility for the damage caused by his/her carelessness, but jurors do not want to let someone take advantage of a relatively minor collision by getting too much. The question is how to be responsible citizens and balance the duty to compensate the injured for what they have lost/suffered with the desire to find only the amount deserved or needed.

As a lawyer who has seen hundreds of soft tissue injury cases in over 32 years, here is a method to estimate a fair verdict to compensate the honestly injured without exceeding the insurance of the responsible party (auto insurance is mandatory in Texas, so every lawsuit for an auto collision is really a lawsuit against the responsible party's insurance company). First, calculate the amount of medical expense needed to treat the injury. Second, multiply that number by 3. Third, add in the actual lost wages, if any.

Example: Rear end collision with $1,500 in medical expense and $2,500 in chiropractor physical therapy expense, for a total of $4,000 in treatment expenses, plus 5 days of lost wages at $150 per day, primarily for treatment visits. Under this formula the jury verdict should total about $12,750. ($4,000 treatment x 3 = 12,000 + 750 lost income = $12,750).

Out of any injury verdict in Texas the treatment providers or the health insurance carriers get paid first. Second, the lawyer will get his attorney fees, usually 1/3, plus trial expenses (all of the responsible party's expenses and attorney fees are paid by his/her insurance company, the injured party must pay his/her own). After all these expenses, the injured person would get about 1/4 of this verdict for his/her temporary disability, pain and suffering, mental anguish, and inconvenience. With a verdict smaller than this, the injured party can end up with nothing or even in debt. CAUTION: this formula is too small for serious/permanent injuries or death.

One of the primary causes of bankruptcy is unexpected medical expense.

  

THE BEST TREATMENT FOR WHIPLASH

Part of the confusion and controversy related to whiplash is caused by the fact that there are really two types or levels of whiplash. The best treatment depends upon which type/level you have. Most patients (80 to 85%) with whiplash recover in a few weeks or months, but in study after study 15 to 20% develop chronic pain lasting two years or longer.

The lucky 80 to 85% group usually have a sprain/strain type injury to the muscles or ligaments that responds well to restored movement by physical therapists or chiropractors, NSAIDS (like Advil, Motrin, etc.), and/or muscle relaxants. The unlucky 15 to 20% with chronic pain are likely to have an injury to the facet joints, one or more intervertebral discs, or both. These chronic whiplash cases usually respond best to more aggressive therapy, injections, and occasionally surgery. Since it is often difficult for health care providers to determine immediately what type/level of whiplash that you have, early treatment is usually based on the assumption that you are one of the lucky 80 to 85%.

For decades the accepted initial medical treatment for whiplash was rest, limited motion (sometimes with a soft collar) for about 14 days and then gradual self mobilization. However, the more recent medical studies indicate that active intervention care to restore motion such as physical therapy or chiropractic care begun within 96 hours produces a much better long term result. This delayed treatment versus early treatment may explain why some older studies indicate that chiropractic manipulation is generally more effective for treatment of whiplash than medical care.

So how can you get active intervention care started within 96 hours to get the best result? There are three basic problems: (1) You cannot get physical therapy without a prescription from a physician; (2) ER physicians do not prescribe physical therapy and if you have a managed health plan, you cannot get an appointment with a primary care doctor for referral to a medical specialist or physical therapist within the optimum 96 hours; (3) Even though you can see chiropractors without a prescription, most health plans or HMOs will not pay for them.

Our standard recommendations are: (1) if you are in pain and have not already been to the ER to get checked out, go as soon as practical; (2) call the office manager/head nurse of your primary care physician, tell about your symptoms and ask to be worked in for an unscheduled appointment; or (3) if you have already seen the ER physician or you do not have health coverage, you can use your Ano fault@ PIP or MEDPAY auto coverages (they will NOT make your premiums go up) to go directly to a chiropractor for treatment.

  

WHAT IS THE BIG DEAL ABOUT NON-ECONOMIC DAMAGES?

Pain, Suffering, Physical Impairment, Mental Anguish, etc.

When injured persons and their lawyers talk about non-economic damages such as pain and suffering, physical impairment, mental anguish, disfigurement, etc. many people think they are simply being greedy and trying to exaggerate the value of the case.

But the primary reason is quite practical. Except in workers= compensation cases, an injured person must collect all of the past and future medical expenses and lost earnings in one trial or one settlement.

Insurance companies will readily pay past medical expenses and lost earnings. However, insurance companies are very resistant to paying reasonable amounts for future medical expenses and future lost earnings when you are not 100% recovered at the time of settlement. The insurance company's unwillingness to accept responsibility and pay the future economic damages forces many injured people to hire a lawyer.

The law does not allow an injured person to collect their attorney's fees and case development expenses (expert witness fees, records, exhibits, video, etc.) from the guilty party or his insurance company the way a bank or business can. (The guilty party's attorneys= fees and expenses are paid by the guilty party's insurance company.) So the injured person must pay attorney fees and expenses out of the settlement or judgment. If an injured person is going to just break even on the past and future medical bills and the past and future lost earnings, he must collect enough pain and suffering or impairment or mental anguish other non-economic damages so that the future medical expenses and lost earnings will not have to be used to pay his percentage attorney's fees and the case development expenses.

An ethical injury lawyer will work hard to recover the non-economic damages for his client also, so that the client and his family can keep 100% of the past and future medical expenses and lost earnings, even after the trial expenses and attorney fees are paid.

  

WHAT YOU NEED TO KNOW ABOUT COLLATERAL BENEFITS

It is important for a jury to find the full amount of damages shown by the evidence and not attempt to make any reductions because they believe the injured person may have other (collateral) benefits available. The judge will make these reductions anyway.

For example, active duty military and their dependents have medical benefits provided and paid by the government. However, if someone in the Army or their family is injured in a car wreck and collects money from the guilty party or his insurance, then federal law requires the government to be reimbursed for all money for medical care provided by the government. The injured party is not entitled to any part of the settlement until the government is repaid. The same rule applies if injured persons receive Medicaid, Medicare, or V.A. care. Taxpayers like this rule.

If a worker is hurt in a car wreck while on the job and is able to collect money damages from the guilty party or the guilty party's insurance, then all of the workers comp and medical benefits must be repaid before the worker can keep any of the money. Employers like this rule.

Major medical insurance, group health insurance plans, HMO's, and disability plans also require an injured person to repay any medical benefits paid by them if any money is collected from the guilty party. Insurance companies like this rule.

As you can see from these few examples, a jury that finds less than the full amount of damages shown by the evidence will create a serious injustice, since the judge will reduce the damages a second time after the jury's verdict. Unfortunately, the Texas rules of evidence do not allow the judge to tell the jury about these reductions during the trial or before their verdict.

  

COLOSSUS INSURANCE SETTLEMENTS

Why are the injury settlements for individuals without a lawyer getting smaller and smaller? 12 of the top 20 insurance companies now use a sophisticated computer program called Colossus to decide how much they will pay on smaller (soft tissue) injury claims.

Colossus standardizes settlements on injury claims and makes them more predictable for the insurance company. Today, an insurance adjuster for a company using Colossus is not permitted to look at each individuals's case and decide what the case is worth.

Under Colossus, if it is not in writing in the insurance company file, it is invisible and is treated as if it does not exist. The primary data Colossus uses to decide the value of a case comes from your medical records. Colossus is looking for A value drivers@ such as muscle spasms, dizziness, radiating pain, headaches, restriction of movement, nausea, vision disturbances, neurosis, depression, and anxiety. But what if your doctor dictates in your record stiffness instead of restriction of motion or tightness instead of spasm or discomfort instead of pain or worried instead of anxious? Most doctors are totally unaware that using the wrong words to describe your injury can dramatically lower the value of your Colossus insurance settlement.
And to get full value for your claim under Colossus, you must get a prognosis and written impairment rating from an Orthopedic doctor. Reports from any other kind of medical provider (Rehabilitation doctor, Chiropractor, Primary Care doctor, Neurologist, ER doctor, etc.) are given a lower value. If the primary care doctor under your HMO or health plan will not allow your treatment to be supervised by an Orthopedic doctor, your Colossus settlement offer will be lower. Adjusters still evaluate death, scarring, spinal cord or brain injuries, quadriplegia, etc. using traditional methods. If you do not get a fair value from Colossus and you have an honest case, consider going to court. A favorable jury decision trumps Colossus every time.

  

HOW DO I SURVIVE UNTIL I SETTLE MY CASE?

The right time to settle most personal injury cases is when you are 100% recovered from your injuries, or when you have given it at least six months to one year to recover and you have sufficient medical documentation to show the insurance company what the probable or likely long term affects of the injury will be. If you settle before one of these times, then you are probably settling too quick and too cheap. Serious injuries take even longer to fully document your long term damages.

The key to surviving until the right time to settle is to use the other benefits and coverages that you may have to cover your lost wages and medical expenses. If you have major medical health insurance, an HMO, active duty or military dependent benefits, CHAMPUS/TRI Care, workers comp. coverage, V.A. benefits, Medicare, Medicaid, or P.I.P. (auto policy) coverage, use these to cover your medical until it is time to settle. Just remember that you will have to repay any of these medical benefits (except the P.I.P. coverage) out of your final settlement.

If you have to be off work, you can use your company's sick leave, vacation time, personal days, temporary disability coverage, workers comp. coverage, government S.S.I. benefits, or your auto P.I.P. lost wage coverage so that you can pay your bills. Out of these benefits, you only would have to repay the workers comp. or government S.S.I. benefits out of your settlement.

If you will be out of work an extended period of time because of injuries to you or a family member, you can file with your employer under the Family Medical Leave Act to protect your job and your employee benefits for up to 12 weeks.

Recent studies show that the number one cause of bankruptcy in the United States is unexpected medical expenses, followed by the loss of a job. An experienced personal injury trial lawyer can assist you in walking through this mine field until you can settle your case and get back on your feet.

  

DAMAGES FROM DEFECTIVE PRODUCTS

If a business designs, manufactures, or sells a product in a defective condition, unreasonably dangerous to the public, it may be held responsible for the injuries caused by the product defects.

A product may be defective in design such as the Ford Pinto gas tanks that exploded if the car was hit from behind. A product may also be defective in its manufacture. For example, if the wheel is not tightened properly at the factory and comes off while the car is being driven or a tire blows out and causes an accident because the sidewall was not properly bonded to the tire.

A product may also be defective if it is manufactured or sold without adequate warning or instructions. A flagrant example of the failure to warn would be the John Mansfield Company that not only manufactured and sold asbestos to the public without warning of the health hazards known to the company, but went to great lengths for nearly thirty years to conceal the health hazards known to the company from the public and its own workers.
A manufacturer may also be liable if a defective product increases only the severity of injuries or damages. A good example would be a door lock or airbag that malfunctions during an accident thereby causing the occupant of a car to be more severely injured than they would have been if the product had functioned properly.

If you have been injured by a defective product, it is very important that the product be preserved and not disposed of or damaged before it is examined by an expert. All products liability cases should be examined as soon as possible in order to properly preserve the physical evidence.

  

WHAT IF THE INSURANCE COMPANY OFFERS THE POLICY LIMITS?

If your injuries are serious, the guilty party's insurance company will sometimes offer you their policy limits. However, you may have additional coverage under the uninsured/underinsured motorist coverage of your policy or the policy of the person driving your car. If you settle with the guilty party's insurance company without getting written permission from your insurance company first, you may lose your rights to collect benefits under your insurance policy.

A settlement with the guilty party and/or his insurance company will also affect your rights to collect workers compensation if the injury happened on the job. If a worker is hurt while on the job and is able to collect money damages from the guilty party or the guilty party's insurance, then all of the workers comp and medical benefits must be repaid before the worker can keep any of the money. Also, a settlement will limit your right to collect future workers compensation benefits.

A settlement may also affect your right to receive benefits under your group health policy or health plan. Major medical insurance, group health insurance plans and HMO's also require an injured person to repay in full any medical benefits received if any money is collected from the guilty party.

In addition, if someone in the Army or their family is injured in a car wreck and collects money from the guilty party or his insurance, then federal law requires the government to be reimbursed, out of your settlement, for all money for medical care provided by the government.

The same rule applies for Medicare, Medicaid and V.A. medical. Also, a settlement may affect your right to receive further Medicare benefits related to your injuries.

You may wish to contact a lawyer and find out what your rights are before accepting such a settlement.

  

WHAT DAMAGES AM I ENTITLED TO RECOVER?

The concept of recovering money damages for an injury is an ancient one. For example, Biblical scholars know that the famous Eye for an eye ... passage at Exodus 21:24 means the value of an eye for an eye.

If you are injured due to the fault of someone other than yourself, the law of the State of Texas and the United States provides that you may be entitled to collect money damages from the person or company who caused your injuries. Most people or companies are covered by insurance. The insurance company adjusters or its lawyers will decide whether or not to pay or fight your claim for damages. If the guilty party has low insurance coverage, you may be forced to collect the rest of your damages from your own insurance company.
When you are injured due to the fault of another, that person or their insurance company should compensate you for the following damages: past and future medical expenses, loss of earning capacity in the past and future, pain and suffering in the past and future, mental anguish in the past and future, physical incapacity or disability in the past or future, disfigurement in the past or future, and property damages. In some cases, you may be entitled to other types of damages.

An injury victim generally must collect all of his damages in one trial or settlement (including all future medical payments). Insurance companies will usually pay medical expenses and lost earnings up to the time of settlement or trial. However, they often refuse to pay the reasonable and necessary amounts for future medical expenses or other damages, even when you have permanent injuries. This forces many people to hire a lawyer.
If an insurance adjuster offers you a settlement, be sure you know what damages you are entitled to and how much they are offering on each type of damage, especially medical expenses you will need in the future.

  

YOUR BASIC LEGAL RIGHTS IF YOU HAVE BEEN IN AN ACCIDENT

Basically, you have a right to be put back in the same condition that you were in before the accident occurred.
This includes your physical, mental, and economic well being.

You and every passenger in your vehicle have a right:
* To have your automobile repaired to its pre-accident condition.
* To market replacement value of your automobile, if it is totaled.
* To have damaged personal property repaired or replaced.
* To the use of a rental car while your auto is being repaired, unless your car is totaled.
* To recover any actual lost wages or loss of earning capacity that might have resulted from the automobile accident. (Because you have the right to recover lost earning capacity, you have a right to collect damages even if your employer pays you sick leave, personal days, vacation time, disability pay, etc. for the time you miss. This Alost capacity@ rule also applies to people such as housewives, students, retired persons, unemployed persons, and active duty military that do not have actual lost wages.)
* To the very best medical care and long term treatment or rehabilitation available.
* To be compensated for mental anguish, stress, or inconvenience the accident caused.
* To settlement for physical impairment or disabilities caused by the accident.
* To be compensated for any scars or disfigurement.
* To choose your own body shop and to choose your own doctors.
* To be compensated for any pain and suffering or any consequential damages.
* To have experienced legal counsel to protect and enforce these rights.