What's Taking So Long?

Gavel_iStock_000015518511XSmall1Many of you have followed my progress from my own auto collision and offered many kind thoughts. Fortunately, I was not disabled from working, and was able to return to work within days. I've been sore for months, had to fit in doctor's appointments where I'd normally have appointments with clients, depositions, or productive work time, had to choose and purchase a replacement vehicle (and absorb a car payment), and overall been inconvenienced by the incident.

But it could have been so much worse.

So for those of you who have followed this, you are probably wondering why I have posted shortly after the incident, then a follow up post a month or so later, and then...nothing until this post.

The reality of the legal profession, insurance claims, and pretty much anything in real life (and reality TV is not reality for those of you who must be disabused of that notion), legal stuff is slow and boring. Besides, television lawyers are far too well-dressed, attractive, and sexual to be mistaken for actual lawyers. And no way do our cases ever resolve tidily in an hour or day or whatever.

Much like baseball, unless you are attuned to the finer points, "nothing is happening" is an often accurate description of the events unfolding. But much as baseball afficionados will tell you their game blows away MMA (well, it's real first of all) because of the nuance, once you really look into what is happening in a legal claim, you realize there is much interesting stuff occurring beneath the apparently stagnant surface.

Plainly and simply, a personal injury case is dependent upon what the medical treatment is and how bad the injury turns out to be. It is impossible to know the nature and extent of an injury, until the patient is released from a doctor's care and that doctor has opined as to the prognosis of his or her patient.

We hear the term "pain and suffering" bandied about often, but what does it really mean? It refers to the agony, discomfort, and pain suffered by the injured party, for a measurable time period. If you go to trial and you don't tell the jurors how long you couldn't bend over to tie your shoes, how will they know how much money they should award to you for "pain and suffering?"

In my case, I am still under a doctor's care. This does not mean I am bubble wrapped or unable to do anything (heck, I could play for the Cubs if that was the case!); it merely means that I am not quite ready to be released from any further medical care and treatment. I can turn my head almost all the way to the left (finally!), but it hurts if I do it or do it suddenly. My lower back still is stiff and doesn't loosen up or stay loose as it did before the collision. But the headaches are gone, the troubles sleeping went away, and radiation of the neck pain down the arms and shoulders is rare now.

Technically, you could call what I sustained "whiplash," a "sore neck and back," "soft tissue injuries," which is an insurance industry favorite, or "muscle and ligament strains and sprains."

None of those sound impressive, do they?

Unless we are either doctors or sports geeks (okay, guilty of of and my science grades wouldn't have gotten me into medical school), we "get" a "broken leg" or a "torn ACL" but we don't quite understand what a "soft tissue injury" is.

Part of this is by design, with the insurance liability industry trying to "spread the word" to the public, potential jurors, and the like, that "soft tissue injuries" are subjective and there is no objective test to demonstrate them like there is for fractures. Technology is catching up and plenty of medical professionals are now able to opine that this is not the case. But the vast majority of us probably have this perception embedded in our subconscious minds and if we were called as jurors would probably nod right along with Mr. Defense Attorney. We want to SEE SOMETHING TO PROVE THIS ISN'T B.S.

I went through a "motion x-ray," which did show some ligament damage in my neck as a result of the accident. Odds are there are several thousand doctors willing to testify for the insurance industry about what quackery this is, much as there are "experts" willing to testify that the "force of impact" to the car has a correlation to the amount of damage sustained by the passenger. Like Mark Twain said, " there are lies, damn lies, and then there are statistics." It is nearly impossible to find literature and expert testimony that doesn't say exactly what you want it to say somewhere out there. Which is precisely the way the game is played--insurance companies have the money to hire many of these "experts" to testify, forcing plaintiff's attorneys to counter this and do the same. Remember, in personal injury law, the plaintiff's lawyer is advancing any costs of litigation and is not paid until the case is resolved by settlement or verdict. Thus, to mix and old basketball metaphor with the baseball metaphors above, the old "Four Corners" delay tactics are employed regularly.

So one of the things I have to do, obviously, is reach a point where I am released from my doctor's care, to return on an "as needed" basis. That should come this summer sometime.

Then, it's time for the attorney (in this case me) to gather togeher all the medical documentation, bills, and other material verifying my injuries, pain and suffering, lost wages, and the like, and forward it to the insurance company for the woman who hit me.

You can imagine how many gazillions of pages of mailed, faxed, and emailed material these insurance companies received on a daily, weekly, and monthly basis. Tons of stuff that has to be scanned into the central system, evaluated by the adjuster assigned to the file, reviewed by the "Claims Committee" and/or a supervisor, and fit into a determination on factors. Among these factors that must be considered are: liability (is our insured completely at fault?), value of case--they commonly set aside a specifc "reserve" on cases so they have enough money set aside to pay what they think the claim might be worth, determination of what offer to extend, legal strategy (should we deny this claim or offer next to nothing and force the case into the court system?).

All that takes time, often months.

These and dozens of other factors are considered. Some insurers even input all the damages into a supercomputer program that spits out all types of information, such as the "actual value" of the medical damages, the amount of treatment this person should have had for this type of injury, the value of the pain and suffering, and tons of other information useful to the insurance adjuster evaluating the claim.

More time elapses in going through these processes.

My case should be a bit easier for them to evaluate on the basis of liability as the other driver plead guilty in court to the criminal charge of failing to yield while making a left turn. I actually traveled all the way to Joliet in case I needed to testify. This is significant in that a plea of guilty to a charge like this is admissible in a civil case. It pretty much ends any dispute about whether she was 100% at fault. But I can promise you that all the other factors will be employed and addressed, every piece of paper scrutinized and reviewed, every statement that can be construed against me will be, and all possibilities considered.

In a word, don't think you or your lawyer just sends stuff in, the adjuster reads it, and calls you up with a number. That actually used to happen somewhat regularly when I first began practicing in those old days before fax machines. Those days are long gone.

I expect that my case will be treated much like every other claim and that once my "special damages" are sent in to the adjuster, these same processes will be employed.

It doesn't matter whether I want to settle quickly or not. It doesn't really even matter what amount I ask for in the first place. The insurance company holds the cards in the end. It'll be up to me whether to call their bluff or endure the expense, time, and risk of taking the case to court.

This is how the system is set up and this is how it, er, works.

You have not heard from me in awhile because I am still treating. You will not hear from me for awhile because once I am done treating, The Process will begin.

This is pretty tedious and colorless if you ask me. Probably another reason why legal novels, television shows, and movies usually involve good looking people, with beautiful clothes and offices, entertaining judges, and cases involving lots of intrigue and action. I suppose we will just have to follow the story that's been given to me as I relay it, despite the lack of anything overtly attractive, exciting, action-packed, or easily resolved.

I will keep you posted on whatever does happen in the end.

Categories: General