Basis for pain and suffering?

[Dragonbits]

State of Illinois. Motor vehicle accident, the other party is at fault.

The value of a claim is based on vehicle damage, medical injuries, pain and suffering, lost wages, etc. Most of these are pretty clear.

The basis of pain and suffering while no doubt complicated has one big element as part of this calculation the actual medical bills that have been generated by the accident.

If a health care company paid those medical bills, there is the a bill that is generated by the hospital, then there is the amount allowed by the health insurance company ,then there is what they actually paid.

As a real example, my health insurance was billed $30,000 for an operation, they allowed $15,000, and actually paid $5,000. No doubt if I did not have health insurance the hospital would have billed me $30,000 absent any negotiation on my part. A typical multiplier for pain and suffering is 1.5-5 times the medical bills. The higher numbers no doubt are for serious permanent disabling injuries.

When pain and suffering is being estimated, which number is used as a basis of medical bills?

The $30K, $15K, or $5K?.

I get that the health insurance is likely to come to me to get paid out of any settlement for repayment of the $5K they paid. And of course any out of pocket cash I paid out like co-pays will be straightforward part of a settlement.

My question is would my pain and suffering part be based on the $30K bill or the $5K actually paidl?

 

[adjusterjack]

My question is would my pain and suffering part be based on the $30K bill or the $5K actually paidl?

Neither.

Pain and suffering has nothing to do with the amount of medical bills. That's ancient history. I was taught the multiple thing in claim school 50 years ago. It went out the window decades ago.

Pain and suffering is based on, well, how much pain you had and how much suffering you experienced. Each case is different.

If you want to go the multiple route, pick whatever number floats your boat and present it to the other driver's insurance company and see how it goes.

If you want an opinion about the number you pick, tell me the number, then explain the nature of your injury and how much and what kind of pain and suffering you experienced.

 

[Dragonbits]

That makes sense as medical bills are also somewhat arbitrary and can vary as much as 1000% for the very same procedure done as the exact same hospital.

It didn't seem important, but this is for my wife's injury, I was driving, she was sitting in the rear seat while stopped at a red light traffic signal and we were rear ended. The car had $5,000 damages, that has long since been taken care of.

Though I imagine medical bills are still used in a guard rail sort of way, meaning it's difficult to claim $100,000 pain and suffering while only having $1,000 in medical bills, or $100,000 in medical bills would likely result in a lot more than $1,000 pain and suffering. So I have to think they are still an important factor.

The easy part, I had two numbers I have already used.

$78,000 in a demand letter, $168,000 In a lawsuit I filed. Though I only filed the lawsuit to protect the stature of limitations, while the $168K was based on a rational argument, I mainly picked that number to be high enough for a real lawyer to be able to negotiate from. I filed the lawsuit pro se, but there was no illusion on my part of being able to go to trial. And the only reason I filed the lawsuit was because I misunderstood the statue of limitations, 2 years in Illinois, I filed ~12 hours before the 2 years were up. (foolish on my part, but it is what it is)

I got a cell call 11 minutes before the adjuster was going home for the day, they offered to settle for the limits of the policy, $25K. I decided to accept, as there is still my own UIM insurance coverage that is for $100K.

So now I am moving on to my own UIM insurance. IMO the total of $125K (25K + 100K)) is more than I would expect to recover, though I have no experience in personal injury.

The injuries were both ankles, which have mostly resolved after therapy and 2 years, and a rotator cuff injury (and moving a bicep tendon) that needed surgery. My wife is still undergoing therapy for her recovery from the surgery, which is expected to go on for another 2 months (twice per day) minimum. She still has somewhat limited range of motion in her right (dominant) arm.

I feel like I need to may need to give more details than what I have currently provided for you to make an assessment, but that will have to wait till next week.

Anything else you might want to know, I will try and proved next week.

 

[not2cleverRed]

Part of what you should take into account is the cost of all that therapy, past and future. Having both ankles injured probably caused mobility issues for her as well - there are costs associated with that. Like, if she needed a wheelchair or a walker, where she did not previously.

Limited range of motion in her dominant arm is non-trivial.

However, all this is waaay beyond the scope of this forum. We don't know your wife, and how the accident has affected her. There are a myriad of things that could affect a settlement.

 

[justalayman]

Here is a good article on UIM (and UM) coverage in Illinois.


https://www.dcba.org/mpage/vol250313art3

You also need to understand that if your separate medical insurance has paid any of your bills they would likely have a claim to be reimbursed from any insurance proceeds you receive.

 

[Zigner]

I can't for the life of me understand why you don't (and/or didn't) have an attorney.

 

[adjusterjack]

Jeez, lord, please save me from people who ask for opinions without providing relevant facts.

It didn't seem important, but this is for my wife's injury,

It certainly is important. There is no "I" here. This is your wife's injury, your wife's lawsuit, your wife's claim, your wife's signature on the settlement papers when she accepted the $25,000 policy limits from the other driver's insurance company. And now it's your wife's claim against her UIM coverage. She is the one who will have to convince her insurance company that her pain and suffering is commensurate with the amount that she claims.

The injuries were both ankles, which have mostly resolved after therapy and 2 years, and a rotator cuff injury (and moving a bicep tendon) that needed surgery. My wife is still undergoing therapy for her recovery from the surgery, which is expected to go on for another 2 months (twice per day) minimum. She still has somewhat limited range of motion in her right (dominant) arm.

I feel like I need to may need to give more details than what I have currently provided for you to make an assessment, but that will have to wait till next week.

Anything else you might want to know, I will try and proved next week.

No, you don't need to provide me anything. It's your wife who needs to come to this forum and tell me all about her pain and suffering and then I will give you an opinion about the money.

 

[Dragonbits]

I can't for the life of me understand why you don't (and/or didn't) have an attorney.

It’s a combination of reasons, and I haven’t ruled out an attorney for the UIM part of this claim.

My biggest misunderstanding was that I had 2 years to file a claim, which I thought meant file bills, doctor’s notes, etc, with the insurance company. Au contraire, it means that has to be all concluded in 2 years or one needs to file a lawsuit.

And I had thought this should have been fairly simple, perhaps I was influenced by my own lack of injuries. What complicated things was that after 17 months the orthopedic surgeon suggest the best solution was rotator cuff surgery. On the plus side, had I settled prior to that, I wouldn’t have been able to factor in the surgery.

You should understand that the following are generalizations.

IMO attorneys as a group overcharge and don’t provide a good ROI for their services. Several plaintiffs I have talked to complained that after lawyer cost, reimbursement cost, etc, there wasn’t much money left over. Since in this case liability has already been clearly established, my recent thinking was that ~20% is a more appropriate fee. The forum however would have to tell me if many attorneys would agree with that?


Partially, just my own personality, and one problem I have is a tendency to procrastinate. Also, it seems I end up doing 90% of the grunt work in most legal situations (bills, doctor’s notes, collecting MRIs. Etc.), then hand it off to an attorney. Correct me if I am wrong, it’s not like we can just hand my lawyer a HIPAA authorizations form, forget about it and let them collect all the info.

I can do all that grunt work, hand it off to the insurance company, if I think they are way out of line then I can hire an attorney.

Recently when I tried to talk to lawyers, 3 of them said it was already too close to the statute of limitations and they didn’t want to take the case, or even provide hourly advice.

My guess is an hourly rate for limited consultations isn’t enough money for them and could cause some sort of liability for bad advice. And I think the personality of most lawyers is they want to totally control the situation and have a lot of time to play with. They don’t seem accustomed to acting quickly.

My recent experience e-filing a lawsuit was that if I had experience doing that, it would have taken me no more than 2 hours. Not having any idea at all about motions, need to issue a summons, how to do that, having to look up phrases like “Ad Damnum”, it took me 5 days and several rejections before it got filed. The biggest problem was there is a mismatch between what the online menu refers to as some motion Vs the actual name/number of the paper form. It was already complicated enough to e-file, then have to file a motion to dismiss, that I would never want to go any further than that. IMO a real trial would be sure to blow up if I tried pro se.

As I said, I don't rule out contacting an attorney for the rest of this process.


Fwiw, this was an explanation, not a justification, likely I would do it somewhat differently if I ever had to do it again.

 

[Zigner]

IMO attorneys as a group overcharge and don’t provide a good ROI for their services. Several plaintiffs I have talked to complained that after lawyer cost, reimbursement cost, etc, there wasn’t much money left over. Since in this case liability has already been clearly established, my recent thinking was that ~20% is a more appropriate fee. The forum however would have to tell me if many attorneys would agree with that?

I understand where you're coming from, but I disagree. The plaintiff's you have talked to seem to forget that, without their attorney, they may have received substantially less and still would have had to reimburse the various providers. In fact, attorneys often have stronger negotiating skills when it comes to medical providers. For example - the provider wants to be reimbursed $10,000. You ask for a discount and they come down to $9,500, whereas the attorney may have been able to negotiate the amount down to $5,000.

 

[justalayman]

My biggest misunderstanding was that I had 2 years to file a claim, which I thought meant file bills, doctor’s notes, etc, with the insurance company. Au contraire, it means that has to be all concluded in 2 years or one needs to file a lawsuit.

Actually, all it means is you must file a suit or lose your right to do so regardless of whether the issues involved are completed or not.

IMO attorneys as a group overcharge and don’t provide a good ROI for their services. S

well, so far you have $25k and a battle in front of you. I’m. not sure your concern of ROI is valid.

Your case liability has NOT been established unless the insurance company specifically stated they acknowledge liability. More likely there was a release included that specifically stated they do not accept any fault or liability and the payment is simply to settle your claim. That is the typical statement when a case has not been adjudicated in court



Has your medical insurance paid for any of the services your wife received? If so, you need to refer to your policy regarding repayment of their expenses in the case you are compensated by the at fault party that is likely there.

 

[justalayman]

Partially, just my own personality, and one problem I have is a tendency to procrastinate. Also, it seems I end up doing 90% of the grunt work in most legal situations (bills, doctor’s notes, collecting MRIs. Etc.), then hand it off to an attorney. Correct me if I am wrong, it’s not like we can just hand my lawyer a HIPAA authorizations form, forget about it and let them collect all the info.

well, it depends on what you hire the attorney to do. I can say that I have been in a situation that was just about as simple as handing the attorney a Hipaa release and letting him run with it. I also know of people who did a lot of legwork to keep an attorney’s hourly billing low.

 

[Dragonbits]

Jeez, lord, please save me from people who ask for opinions without providing relevant facts.



It certainly is important. There is no "I" here. This is your wife's injury, your wife's lawsuit, your wife's claim, your wife's signature on the settlement papers when she accepted the $25,000 policy limits from the other driver's insurance company. And now it's your wife's claim against her UIM coverage. She is the one who will have to convince her insurance company that her pain and suffering is commensurate with the amount that she claims.



No, you don't need to provide me anything. It's your wife who needs to come to this forum and tell me all about her pain and suffering and then I will give you an opinion about the money.

For the limited purpose of the question I had about how pain and suffering was calculated in regards to medical bills, it wasn't important.

My wife isn't very confident about her English, she has only lived in the USA for 4 years. I filed the lawsuit for her, granted it was her as the plaintiff, we went to the court house and sheriff’s office together, she signed the settlement papers. the check was in her name.

However, in this entire process so far, the only thing anyone ever wanted from her was her signature.

If she does need to testify / talk to the insurance company directly, no doubt she is much better than I at describing her pain and suffering, I tend to be very un-emotional about it and assume my health will get better. I tend to be much better at justifications, numbers, and understanding in general the legal system. For me, it's the details like what exactly the stature of limitation means and exactly how pain and suffering are calculated that I am not familiar with.

Since I am the only one dealing with the insurance company, making doctor's appointments, paying for out of pocket costs, etc, I took the liberty off posting this question for her.

BTW, I assumed someone would post that my wife needs to be the one posting on this forum, which is the reason for not mentioning it.

 

[not2cleverRed]

well, it depends on what you hire the attorney to do. I can say that I have been in a situation that was just about as simple as handing the attorney a Hipaa release and letting him run with it. I also know of people who did a lot of legwork to keep an attorney’s hourly billing low.

The key is, they still have the lawyer handle the legal portion - like making sure that the correct things are filed within the statute of limitations. If there are ongoing medical issues that will not be resolved within that time, a lawyer will know how to negotiate that there be no settlement until the full extent of the medical costs and the other financial implications are known. THAT is what the lawyer is important for: knowing and navigating legally.

For the limited purpose of the question I had about how pain and suffering was calculated in regards to medical bills, it wasn't important.

My wife isn't very confident about her English, she has only lived in the USA for 4 years. I filed the lawsuit for her, granted it was her as the plaintiff, we went to the court house and sheriff’s office together, she signed the settlement papers. the check was in her name.

However, in this entire process so far, the only thing anyone ever wanted from her was her signature.

If she does need to testify / talk to the insurance company directly, no doubt she is much better than I at describing her pain and suffering, I tend to be very un-emotional about it and assume my health will get better. I tend to be much better at justifications, numbers, and understanding in general the legal system. For me, it's the details like what exactly the stature of limitation means and exactly how pain and suffering are calculated that I am not familiar with.

Since I am the only one dealing with the insurance company, making doctor's appointments, paying for out of pocket costs, etc, I took the liberty off posting this question for her.

BTW, I assumed someone would post that my wife needs to be the one posting on this forum, which is the reason for not mentioning it.

SMH.

 

[Dragonbits]

I understand where you're coming from, but I disagree. The plaintiff's you have talked to seem to forget that, without their attorney, they may have received substantially less and still would have had to reimburse the various providers. In fact, attorneys often have stronger negotiating skills when it comes to medical providers. For example - the provider wants to be reimbursed $10,000. You ask for a discount and they come down to $9,500, whereas the attorney may have been able to negotiate the amount down to $5,000.

In general I would agree with you, but specifically in this case I would not.

Certainly

attorneys often have stronger negotiating skills, I have no doubt.

As far as medical bills go, the health care company only paid whatever their negotiate rate was set at, which as we know is often weirdly low.

I only directly paid the surgeon, a bunch of co-pays, and I ended up paying some other items that got bounced from the health company. My total out of pocket was ~$8700, the surgeon's part of that was $5,000. ​

 

[justalayman]

You need to realize that you could not legally file a suit on behalf of your wife. That is the unlicensed practice of law. You also cannot negotiate on behalf of her either or representing her in the discussions with the insurance companies for the same reason.

As to understanding the legal system:

Apparently you still don’t understand the statute of limitations. It is basically quite simple: you are given a limited amount of time to file a suit regardless of whether the injuries are healed or not. If you fail to file suit within that time, you are barred from filing a suit.

As to not knowing exactly how pain and suffering is calculated

There is no exact calculation. More than anything, it it is a negotiation.

Here are the jury instructions for California regarding non economic damages

https://www.justia.com/trials-litigation/docs/caci/3900/3905a/

Not a lot to go on there.