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Pain & Suffering.(34 posts)

Pain & Suffering.Len J
Oct 2, 2002 1:29 PM
Question for all of you that have dealt with insurance companies after a Bike car accident.

How does one determine Pain & Suffering value?

As you know, I was involved in a brutal accident Sat a week ago. Damage was as follows:

-One year old Trek 5500, total loss, Ins co. tells me they will settle the property portion of the claim for $2,700.00.

-Injuries were, Broken clavicle, Compression fracture of the second lumbar vertibrae (sp?) in my back, 2 fractured ribs, plus numerous bruises and road rash. Ins Co tells me they will pay for Lost wages, all medical bills plus an amount for pain & suffering (that they will determine when the doctor releases me).

I am not trying to make money on this, I just want to be kept whole.

So what should I expect them to offer/settle for the Pain & Suffering portion of the claim? What has been your experience?

Len
whoa betty. you have suffered serious injuries, and youbill
Oct 2, 2002 1:37 PM
don't know the full result of these injuries. Take your time. I know that you're no spring chicken, and we aging folks don't heal the way we used to.
Where do you live? I could try to hook you up with a lawyer, if you'd like. I do recommend that you consider it.
There may be multiple sources of recovery for your injuries, including your own auto insurance. You also need to understand how your own health insurance factors into this.
e-mail me. wcusmano@aol.com
Why an attorney?Len J
Oct 2, 2002 1:44 PM
If my goal is to be kept whole, What would an attorney gain me that would justify the espense? (As opposed to "Making a killing" on the accident)

Why would it be covered under my auto ins? He was driving, and his ins co has admitted he has taken responsibility.

What would my health ins contribution be? All bills are being paid by me & reimbutrsed by the ins co?

BTW, I was misdiagnosed in the ER originally, friends are telling me I should sue the hospital. I say Why? If the only purpose of suing is to get money over and above my costs, I don't see the point.

Len
Len, I like you. I respect you. I really do. I read yourbill
Oct 2, 2002 2:49 PM
posts, I enjoy them, I think about them. You seem like a very solid guy.
But, dude, you're asking a bunch of bike geeks what's it all worth and what to do, and you wonder why you should need a lawyer?
If you had a little bit of soreness and road rash that went away with some ice and alleve, I would agree with you. Get the bike fixed, get a couple of hundred bucks for the inconvenience of it all, and be done with it. But that's not what's going on.
You're really hurt. With all due respect to my friend below, three times bills is an oft-quoted rule of thumb that is applied so infrequently as to be, sorry to say, all but meaningless. Depending on your injuries and the circumstances, maybe getting your medical bills paid is a good result. Maybe ten times the bills isn't enough. This is what a lawyer does.
As far as the collateral sources, as they are called, for your bill payments, dude, you paid the premiums, you may as well use the coverage.
Don't be fooled, either, by the "this makes premiums go up for everyone" bullsh*t. What makes premiums go up is how well the insurance companies do with their investments; sometimes a major hurricane can matter, too. Whether you get $1,000 or $10,000 or $100,000 is tiny little peanuts.
Talk to me, big guy.
Bill, thanks for the kind words.......Len J
Oct 2, 2002 6:35 PM
& I am asking these questions in all seriousness. I also am not trying to rush the settlement, nor am I looking to the board "asking a bunch of bike geeks what's it all worth and what to do". What I am asking the board is for their experiences as to what is a reasonable expectation for the pain & suffering component.

I have to admit that generally I think that too many people use the judicial system to "Milk the cow" so that circumstances like mine become a way to make money. And I think that (Many) attorney's knowingly exploit this to make money for themselves. Look at the attorney's fees for the tobacco settlement and compare the fees to what actually got distributed to the harmed parties, it is absurd. I, for one, choose not to "ride the gravy train".

You say; "Don't be fooled, either, by the "this makes premiums go up for everyone" bullsh*t. What makes premiums go up is how well the insurance companies do with their investments; sometimes a major hurricane can matter, too. Whether you get $1,000 or $10,000 or $100,000 is tiny little peanuts." To this, I say you are wrong. Actuarial premiums are based on statistically projected loss experience, which are a direct result of paid claims. Paid claims are impacted by the "working of the system" by attorneys and people who believe that they are entitled to more than just being made whole for their injuries. We have become a society that sues for the most rediculous things.

As to my injuries. Yes they are serious, but they will heal. I should be paid for the medical bills & the lost wages and the property damage. The question is what other losses have I suffered, and how should I be compensated? I've lost riding time, and suffered with discomfort for a few weeks. But I also knew up front that I was participating in a dangerous activity, do I share no responsibility for what happened?

I've rambled on enough for one night, (painkillers do have quite an effect), I hope you understand where I am coming from.

Keep talking to me.

Len
To clarify a little.......Len J
Oct 2, 2002 6:38 PM
what I really want from the board is what are your experiences with pain & suffering settlements.

I reread the above & realized I have not been as clear as I would like.

Len
I agree with bill; you need to wait; very importantDougSloan
Oct 2, 2002 6:47 PM
Most importantly, take your time. You get once chance to be compensated for injuries that may plague you for the rest of your life. Wait at least a year on this one for any settlement related to permanent injury. Seriously. You need a doctor's informed opinion about any future treatment and what you condition will be. What if you settle for $10,000 and a year later a doctor tells you you need a $100,000 operation? Or, that you will have 10 years knocked off your life because of this? Or, you'll develop critically painful chronic arthritis? See? You just don't know yet.

The two major unknowns are future medicals and future pain and suffering. That simply cannot be determined yet.

Nonetheless, find out what the policy limits are and if the guy has any assets or substantial income. If he has no money and only a $50,000 policy, then this gets relatively easy. Get the limits.

There is no way anyone could recommend a settlement amount without seeing your medical records, talking to your doctor, spending several hours at least talking to you about this, and then waiting to see how it develops. It could be $10,000 or millions. Really.

Doug
My experience with pain and suffering settlements, whichbill
Oct 3, 2002 5:49 AM
includes my seven or eight years defending these sorts of claims, my eight or nine years bringing them, and my ten years as a mediator helping other people settle these sorts of claims, is that the rules of thumb are not a very good guide. There is only one guide, which is what a jury would do, which is known to no one really but about which experience can tell you a little, which depends on too many factors to discuss here.
No one, no matter how experienced, can or should tell you now what the claim is worth. If you walked in my office, asked me to represent you, and talked to me for two hours about the incident, your entire medical history, and everything you were experiencing right now, I still wouldn't tell you what I thought it was worth, even though I'd have a pretty good idea. I have broken that rule on a handful of occasions and have been sorry every time.
Switching gears to your defense of insurance companies, which, I promise, you will learn not to do after this matter is resolved, because insurance companies are evil (not everyone that works for them is evil, but evil they are just the same), yes, actuarial loss rates factor into premiums. Stop and think, though, about what's the goal? What's the target profit margin? Where does that come from? It comes from the investment experience, pure and simple. Insurance companies are NOT in the loss indemnity business. Their core businesses are investment and financial services. Collecting premiums is how they get the money to pursue those businesses, and their investment experience determines premiums to a far greater degree than loss experience.
compareDougSloan
Oct 3, 2002 6:09 AM
You make some good points. The best (but far from perfect) way to assess a settlement is to compare your circumstances to known jury verdicts in the area, if you can. At least that gives you something to go on. There are services and computer programs that help with this, too.

Doug
totally agreeColnagoFE
Oct 3, 2002 6:43 AM
just remember one thing the insurance companies are not your friend and they are in business to make money and they do make money or they wouldnt be in business. if they can screw you they will...sure this is an overgeneralization and there probably are many great people out there in the biz, but personally after dealing with my adjuster on the very first phone call I was on my way to a lawyer the next day. Just not worth the aggravation.
Good points.Len J
Oct 3, 2002 6:55 AM
In thinking about this, pondering your advice & comparing it to my own motivations, I think the issue comes down to one's definition of "getting screwed". Your experience is that insurance companies do everything they can to reduce the amount they pay out, and that the only balance to this is a good attorney, to ensure the maximum payout possible from the ins co's. The difference between the total payment with & without an attoney is the "getting screwed" amount. I on the other hand think that as long as I am kept whole, then I haven't been screwed.

In addition, there is a break even for me on using an attorney. For instance, if I have $10,000 in Medical expenses reimbursed & I use the 3X rule (I know it is arbitrary, but follow me for a moment), then an attorney might be able to get a $30,000 Pain & suffering settlement, If you assume that lost wages & property settlement is $7,500, then the total insuranse payment would be $47,500, deduct a 1/3rd fee for the attorney & the total to me is $31,666. If I, without an attorney can get a Pain & suffering settlement from the Ins co of $14,166, the amount I keep is exactly the same. The only difference between the two cases is what the insurance co pays my attorney.

Actually Bill, what I was trying to determine with this post was if an attorney would be worth it to me, not worth it to the attorney. I am still not sure, you have given me much to think about. Thanks.

Len
I understand your dilemma. I remember sitting with one guybill
Oct 3, 2002 7:24 AM
for a couple of hours, telling him what I would do for him, and he decided that he was up for doing it himself and didn't retain me. You can do it for yourself.
The thing to remember is that the primary service a lawyer provides is advice (as well as dealing with some of the sh*t). You want what's fair; that's what a lawyer does, to try to reach a resolution that's fair to you, fair being a pretty subjective thing. For that he earns a fee.
I don't look at it as if the sole question is whether my client gets more money in his pocket with me or without me, because that's not the whole picture. I provide a service that costs money.
I believe that in the vast majority of cases, I earn my fee. Big time. Every once in awhile, we get a result that exceeds any of our expectations. Is that "fair"? Well, often enough, the insurance company isn't fair. I sleep at night.
Len, you'll never be sure. You cannot make the same claim twicedjg
Oct 3, 2002 7:28 AM
and compare the results.

It seems that everybody on this board is telling you the same thing. Make of that what you will.
another ideaDougSloan
Oct 3, 2002 8:27 AM
I don't know if someone else brought this up, but you have some flexibility in hiring a lawyer. It's not a 1/3 or nothing issue. You could agree to hire one, pay by the hour, with a cap on the amount of time spent without your approval, with the understand that you can convert to a contingency at some point at your option. I would think most PI lawyers would do that; I have. That way, it may only cost you $500 or so to get some basic advice you need, and then you can proceed with the lawyer only if you want to. I would think the lawyer would agree to apply the amounts paid on the hourly basis to any continency fee later, too.

Also, there can be variable contingency agreements. Could be 15% if settled within so many days or months, 20% after that but before filing suit, 33% after filing suit, 40% if going to trial, for example. You are perfectly free to shop around with lawyers and agree to anything.

In any event, this is too important to do with only RBR advice.

Doug
It's not that simple when injury is involvedColnagoFE
Oct 3, 2002 9:07 AM
Lawyers do this stuff day in and day out and know the laws back to front. You don't. You're likely to miss a lot of things that could go bad for you down the road. Sure you're gonna have to give up some to the lawyer, but it will be worth it not to have to deal with the headaches the insurance company will inevitably throw your way. All the documentation, all the forms...having been there it's a nightmare to do it all yourself. I'm guessing you'll come out ahead in money even after paying the lawyer if that's your real concern. If you don't get a lawyer you might consider hiring a lawyer for an hour or two once this gets a little further just to give you peace of mind you are doing this right and not setting yourself up.
misdiagnosed in the ERphilippec
Oct 3, 2002 12:06 AM
Funny that this happened to you as well. When I crushed my vertabrae it was in a race (in the US) and when they brought me to the "doc-in-the-box" medical centre, they diagnosed me as having only torn some back muscles (no x-ray!). It was only the next day when the pain was so great that I had the prper diagnosis made!!!

I guess I could have brought a lawsuit against the doc-in-the-box ... but I didn't bother. Sometimes mistakes happen and I am no worse off for it now. In any case, best of luck for your recovery.

A+

Philippe
If you've suffered no substantial increase in your injury (andbill
Oct 3, 2002 6:55 AM
not just a matter of maybe days or weeks or even months without a proper diagnosis and proper treatment), I don't know who would take that case. I wouldn't, and I wouldn't recommend that it be pursued. Although the pain sucks and the indignity of unnecessary suffering is there, all of that tends to fade a bit when you are talking about laying out a minimum of $5,000 in costs and more typically $20,000-$30,000 to bring a malpractice case, to say nothing of the time and emotional investment.
Len: listen to Bill.djg
Oct 3, 2002 5:48 AM
IMO: The insurance company does not have your interests at heart. They may be reasonable. They may ultimately settle fairly. But making you whole--and making sure they've done so--are not all that high on their list.

A good attorney will not counsel you to pursue undeserved riches. "Lottery" verdicts--much less settlements--might make the news, but in fact they are few and far between. A good attorney will provide relevant knowledge and advice about the process that would be hard for you to obtain. He or she should be able to get you a good--and fair--settlement and should earn the contingency fee in the process. Ask around for someone reputable in your area. Take your time and do it right. All decisions are ultimately yours in any case, but if you've really been banged up like this your decisions should be judicious and well informed.
I agreems
Oct 2, 2002 1:46 PM
Given the seriousness of your injuries, you should not settle quickly. Also, it would be worth your while to consult with a lawyer who knows something about personal injury claims in your part of the world. (I'm a lawyer, but I do no personal injury work.) Although the lawyer comes with a cost (usually personal injury lawyers want a percentage of the recovery as their fee), the net result probably will be higher than if you negotiate on your own.
slow downColnagoFE
Oct 2, 2002 1:43 PM
do you have a lawyer? personally with your injuries and the possibility that you might have long term complications from them I wouldn't be in a hurry to settle anything until you are convinced you won't need further medical treatment. you can usually settle the property thing separate from the medical/pain and suffering portion.
I am going slow.Len J
Oct 2, 2002 1:50 PM
Thanks, but my question really is in preparation, I'm not going to settle anytime soon.

The real reason that I am asking is because I would like to settle the property portion and order a new bike, but having no idea about what to expect above the $2,700 (Property settlement), I don't know what I can afford to buy. Hence the question about what to expect in the Pain & suffering portion.

Len
could be anything from $100 to a millionColnagoFE
Oct 3, 2002 6:56 AM
I doubt you'll get nearly as much without a lawyer negotiating though.
Rule of thumbirregardless
Oct 2, 2002 1:53 PM
The insurance companies use a rule of thumb. Pain and suffering caps out at three times medical bills. That assumes you use a lawyer (no way you'd get that without one and a serious threat of trial). They may go higher if you have a permanent loss or disability and a serious loss of quality of life.
re: different type of accident, butMike Prince
Oct 2, 2002 2:38 PM
I had a car accident a few years ago (other persons fault), nothing even close to the injuries you have, but a total-loss car and a sore back, nothing serious. I needed to go to a chiropractor for a few months to get things straightened out and after being released by him got a $2,200 settlement for P&S. Keep in mind that you will have to sign a release saying you won't pursue any more claims against the insurance company.

Seems almost like a bribe to force you to end the claim. I have a few friends who work in insurance. I could put in an email to them and see what they think.

Get well soon.
re: How does one determine Pain & Suffering value?fbg111
Oct 2, 2002 3:20 PM
How about with a brand new $10k bike?

re: Pain & Suffering.DINOSAUR
Oct 2, 2002 4:05 PM
Sorry, I'm a day late and a dollar short (as usual). I missed the post regarding your crash. I can't provide you with any advice, although dealing with accident cases in my background it's best to seek an attorney for advice. Insurance companies won't want an attorney to get involved and will try to pay you off. Don't move in haste. You don't know your total outcome yet.

In a way you are lucky, when I crashed it was solo and I had no one to blame but myself. The recovery process was long and painful but I'm back to riding and putting in miles I never thought possible.

Good luck on you recovery and let us know how you are doing. I spent a lot of time on forums such as this to keep me interested in cycling. Without them I probably would have given up. This is one area were we all pull together, as a lot of us have been there.

Dino

P.S.
The ribs are probably your most painful injury (I fractured 5).
I AM A LAWYER, AND I HIRED ONE WHEN HIT...READ ON!2_cheap
Oct 2, 2002 4:29 PM
Len-

My wife and I were struck by an (as admitted by the driver)out-of-control cement truck back in June. After striking us, the truck tipped over onto a car, killing its two occupants. My wife suffered serious cuts, muscle damage etc...My injuries were very severe. I was taken by helicopter to a trauma hospital with the following injuries: a multiple open compound fracture of the left tibia/fibula (basically my left leg was crushed), two broken arms, a fractured vertebrae, four facial fractures, a dislocated elbow and cuts, bruises, road rash over most of my body. After several surgeries, my leg and face is held together with titanium plates, screws and wire.

I am a lawyer, but do not practice PI law. I immediately saw the value in hiring a specialist to handle my claim, and I suggest you do the same for several reasons. First, your attorney will handle ALL issues regarding the payment for your treatment, taking a potential major hassle off your hands. Second, he/she will assist you in coordinating treatment, and based on his/her experience, will steer you in the right direction regarding specialists, etc...Third, an attorney who specializes in PI law will have tons of experience in fighting on your behalf with the motorists' insurance company.

I'm glad that you're well enough to type the message. Ask for referrals for attorneys who SPECIALIZE in PI law. The recovery they get for you will more than make up for their (33%) fee. Continue to recover, and best of luck to you.

And P.S., please do not settle the claim until you have spoken to an attorney, whether you hire one or not. You have been injured, and you owe it to yourself to make sure you're compensated for any permanent loss. I will probably need to have surgeries in the future, and if I have a new health insurer, they may not pay the claim based on a pre-existing condition. The same may apply to you, and you'll be glad you were able to settle for damages to pay for future treatment.
I have been hit 4 times and sued 4 drivers for negligence.onespeed
Oct 2, 2002 5:53 PM
The unwritten rule the insurance companies use to determine "pain and suffering" (at least in my cases) is the 1/3 rule.

1/3 to cover ALL of your medicals.
1/3 of your total award to your attorney fees.
1/3 of the total award for pain and suffering.

Basically it is your meds x3; I know there are going to be people who challenge this.

Property damage (bike, clothes, anything that was damaged) usually comes out of a different fund entirely.

It sounds like you deserve to make a killing in my opinion.
A coupla commentsLAIrish
Oct 2, 2002 8:58 PM
The purpose of an insurance company is to maximize its' profits, not to compensate you for any injury.

Lawyers almost always get their clients a settlement significantly larger thant the fee that the collect.\

Man, you've got a lumbar injury? That is serious S**t! MAKE SURE that you have that taken care of before you settle. (BTW, that maya require you to file a lawsuit, to preserve your rights before the statute of limitations runs, even though you are not yet ready to settle. Issues like that are the kind of things that make a good lawyer worthwhile.)
re: Pain & Suffering.zzz
Oct 2, 2002 10:48 PM
Hi Len,

I'm so sorry to hear abour your accident. My advice as a lawyer is to wait and get a better understanding of your healing process before you start thinking about any settlement amount. As you become more informed about your medical problems and prognosis you'll have a better understanding of what you will have to go through. Talking about amounts this soon is premature and not in your best medical interests. From what you say about your injuries the pain and suffering part of your settlement will cover any bicycle you choose.
I was able to talk to Lauren for a short time tonight and she asked me to tell you that she too is so sorry to hear of your accident. She also wanted me to tell you that her thoughts are with you in a positive healing way, that she is praying for your healing process to be without much burden to you, that she knows your positive and honest approach to things will serve you well during your recovery and that latter you might want to look into Wu style Tai Chi exercises to help in finishing the healing of your back injuries.

David Brecht
Thanks, My thoughts to her also. nmLen J
Oct 3, 2002 4:00 AM
Don't be stupidpmf1
Oct 3, 2002 7:22 AM
I'm not in favor of suing at the drop of the hat and extracting every penny using lawyers, but you have real injuries here.

Do not sign anything the insurance company asks you to sign. Do you know for sure that these injuries can ever be healed 100%? Might you need expensive therapy sometime in the future? Have you sought additional medical opinions? Will this result in a permanent change in yuor lifestyle (and what would you have paid to avoid it)? All these options will disappear once you settle. So don't do it without at least consulting a lawyer.

I had a friend whose wife worked for an insurance company. It was her job to pressure people into settling. She was kind of a nasty person and seemed to take joy in low balling claims and pressuring people into settling. She was good at it and paid highly.

They've got professionals trying to screw you, so you better get a professional on your side to protect your interests. Settling this prematurely could be a huge mistake. The insurance company is not looking out for your best interests. They may figure your dumb enough to settle for a new bike and a couple grand. Don't be.
Thanks all.Len J
Oct 3, 2002 8:50 AM
I'm glad I raised the question and appreciate not just the answers, but the obvious energy that you all put into the answers.

I am going to noodle on this for a little bit & then make a decision. I think that at a minimum, I will buy a couple of hours of an attorney's time and go from their.

I realized, as I reviewed & thought about the responses, that my reluctance to deal with an attorney comes from a history of being responsible for coordinating the defense (for companies I have worked for) against numerous frivilous law suits that ate up an inordinate amount of time & money. Additionally, seeing settlements for these suits making attorneys rich left me with a bad taste.

That being said, I do think it is wise counsel to review my situitation in detail with an expert and then make my decision.

Thaks to all for your time and attention.

Len
One more thoughtRode Warrior
Oct 3, 2002 2:47 PM
I have some experience with your type of back injury. I had a compression fracture of one vertebrae (sp) myself, and it took 3 months before I could twist at the waist. This is a very painful injury, but one that will heal completely. Basically the bone expands back to its proper size. I made the mistake of not using my back, and the muscles atropied (sp) to the point of major problems. After some therapy (exericises) I am have eliminated all back pain, so I recommend doing something to strengthen your back as soon as you feel comfortable. This won't be for a while though. Just take it easy, and know that these injuries can be overcome, but it will take a while. The rest has already been beaten to death.

Good healing,

Steve