I recently decided I should write a blog discussing the process of evaluating a client’s case for settlement purposes. The first part of that blog entry was published back on Tuesday, May 8. This is Part 2.
Factor #3 in the case valuation process is the nature of the injury sustained. Cases where the injuries are obvious and apparent to anyone who looks are generally easier to prove (and settle) than cases of less obvious (but equally painful and problematic) “soft tissue” injuries. To explain, imagine the case where the plaintiff suffers a broken arm in a car wreck. That plaintiff is taken to the hospital, where x-rays of her arm are taken. The doctor looks at the x-rays and can clearly see the fracture. The insurance company can’t really argue about the nature of the client’s injury, because it’s on an x-ray for the whole world to see. Contrast that with the case where the client’s vehicle was violently struck from behind by another car doing 35mph. She was wearing her seat belt, so fortunately she didn’t sustain any broken bones. The problem is that the muscles and tendons in her neck and back were seriously damaged by being ripped back and forth much faster and much farther than nature designed them to go. We know the pain from such damage is both severe and long-lasting, but the injury is not one that shows up on x-rays or similar tests. We can’t just put up some film and point to the injury; it is one that a doctor has to diagnose based upon a variety of clinical factors. Because of that, factor #4 comes into play.
Factor #4 is the adverse medical exam. When you file a lawsuit seeking damages for injuries you have sustained, the defense is almost always given the opportunity to require you to undergo an adverse medical examination. Put simply, this means the company can select a doctor to examine you and then write a report expressing his opinion on whether or not you are actually hurt. The doctors chosen by the insurance carriers often derive a very substantial portion of their annual income from doing these examinations for insurance companies. It is not at all unusual for an AME doctor to testify that he makes as much as $200,000 or more each year by testifying for insurance companies. These companies know which doctors are going to give them opinions that are favorable to the defense (i.e., the plaintiff isn’t really hurt), so do I really have to tell you which doctors get the bulk of the insurance companies’ business? I recently tried a case where the AME doctor changed his opinion no less than three times, all because the defense lawyer called him and convinced him to do so. No doctor wants to see $200,000 in annual income go away, and that is exactly what will happen if he starts giving opinions that aren’t favorable to the insurance company that hires him. Because of this obvious bias, most adverse medical exam reports aren’t worth the paper they are written on. Nevertheless, juries will hear from these hired guns, and that fact has to be considered when determining case value.
Factor #5 is the whether or not your injury is considered to be “permanent”. Is this something that is going to affect you for the rest of your life, or is it something that will become a distant, unpleasant memory after several months of therapy and treatment? For obvious reasons, a permanent injury results in a higher settlement value for the case under consideration.
The last factor I will discuss is one that is often overlooked by clients but can be the most significant factor in obtaining the best settlement value for the client.
Keep watching the Bordas & Bordas blog for the “final factor”.