Aug 21, 2009

I want to address the process of valuing an injury settlement. When I am contacted by a victim of an automobile accident, the conversation sometimes turns to the topic of valuing the case. In fact, every injury case undergoes the calculus of injury evaluation at some point. After all, at the end of the day, the only thing the law can do is to attempt to give injury victims back at least some of what they have lost. After a major injury accident, these victims often lose their careers, sometimes their families, and sometimes their long-term health. At the very least, an attorney has a duty to appropriately work up a case for a fair settlement. This blog will discuss the analysis that we go through to try to answer some of our clients' questions.

Pain and suffering, what lawyers call "non-economic damages," is usually what most clients assume constitutes the beginning, middle, and end of the injury evaluation analysis. In fact, I usually do not focus on pain and suffering during settlement discussions. Pain is subjective, and generally, insurance adjusters pay it little mind unless there are significant economic damages (past and future medical bills, lost wages, etc). The pain is real, and the suffering can be excruciating, but valuing it for settlement is very difficult. Typically, a case must have other "drivers" before an insurance adjuster will even consider the value of pain. These are discussed below.

When I consider the value of a case, I think about what we in the industry call "specials." I am not sure of the origin of the term, but it basically refers to what makes the injuries unique and different from any other person who might be stiff or sore following an automobile collision. "Specials" are the past medical bills incurred by the client plus the value of what doctors are predicting the client's future medical needs to be, plus past wage or other economic loss, plus future wage or economic loss. When I start a plan of action to maximize a client's recovery, I am always trying to think about what I would be saying about my client to a jury were the case to go to trial.

Calculating past medical bills is easy. It is simply the total amount billed by medical providers for medical care to date. Future medical care is a bit more complex. It requires asking the treating doctor or other professional to provide a life care plan of what the patient is likely to need medically in a 1 year, 3 year, and 10 year time horizon. Often, once the doctor details future care needs, including prescription drugs, future therapy, and other care over a future time period, we sometimes hire an economist to help value the future medical needs. For example, if a client is going to need a second back surgery in 10 years, we need to calculate how much money we need from the insurance company this year in settlement to assure sufficient money to pay for that surgery when it is needed. That is a great question for an economist. Certainly, no one should start settlement talks in a major injury case without knowing the present value of future medical needs. We also frequently use an economist to assist us in valuing any future wage loss. If a client has lost the ability to do his chosen profession, we will often retain a vocational rehabilitation expert to determine the cost of vocationally retraining our client.

Lastly, an often neglected consideration in valuing an injury case is the permanent loss of function or impairment of function. Many times, treating doctors release clients that have a permanent limp, or pain, or have permanent physical restrictions. At the end of the treatment, the doctor may simply tell the client, "you're going have to learn to live with it." That is the definition of a permanent injury. But without asking the right questions of the doctor to ensure the permanent injury is documented, the client could miss out on substantial and well-deserved additional recovery.

Contrary to what you might hear from some lawyers who do a high volume of cases, there really is no "going rate" for an injury. There are certainly ranges of recoveries for certain kinds of injuries. For example, cases with back surgeries have a range of value, while cases with only chiropractic care have another range. Also, there are other factors that also drive the valuation of an injury (i.e. whether a client has extensive injury to the same part of the body prior to the accident, how the client would present in front of a jury, etc).

The bottom line is that every case is unique. A good attorney will make proper inquiry and document every aspect that can make a difference in the ultimate recovery for the injury victim.

Give us a chance to show you how we are different. We are available for home visits, evening appointments, and hospital meetings. As always, our initial consultation is always free.


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