Settlement with the Insurance Company of the Driver Who Hit Me

I reached a settlement with the insurance company of the driver who hit me for all but 5% of the full liability limit on the policy--which is $100,000.  The lawyer gets a third and there is an additional few hundred dollars taken out for fees related to filing against the driver and their insurance company for liability in court.

That may seem like a lot of money, and in fact some of my able bodied friends even commented, "Sounds like it's worth it!"  Trust me, it's not.  If someone proposed paying me far more than that to get hit by a car, lose my job, go through multiple surgeries, do all the paperwork I've had to do, not do the thing I love to do best for a year, go through at least a year of physical therapy, and have to build my strength back up from zero, I would spit in their face.  

This is not a reality show.  I was really injured, and I have had a hell of a lot of pain and suffering.

So then you might wonder why I settled for the limit of the insurance rather than take the driver and Utica to court considering the fact that my case is worth $300,000 at the minimum.  The main reason is that I don't have job security.  I had only started in my new job one week before getting hit, and as predicted going out on Disability immediately afterwards means there really is no way I will be able to return to it.  Let's just say the environment at work was not kind to the freshly disabled, even with a number of board certified surgeons swearing I was unable to perform my job (or even get to it) due to my injuries.  Bottom line: If I took them to court, I would be looking at winning the case probably two or three years later, and even after I won it would be a fat chance that I would ever see money from the driver who hit me.  If I had been in my job for several years, and knew I could return to it at the end of all this, no doubt I would have taken the case to court.  Likewise, if they offered me even $20,000 less I would have taken them to court.

Here's how it went.  The driver was served about two months earlier, and given a deadline to respond.  If she or her insurance carrier did not respond by the deadline then that would mean a decision in my favor automatically.

Like I wrote in an earlier post, Utica had blocked out all the surgical facilities in advance of my second knee surgery.  The strategy there was to not only avoid paying for the surgery, but to not pay the liability.  If I didn't fight the whole way, I could have ended up with only the left knee having been reconstructed, having my right knee and back disabled for life, and getting paid a small fraction of the liability money for pain and suffering that I had coming to me.  Since I did have the surgery, they then had to face the fact that they were in for a large amount, and it would cost them more to fight it than to simply pay up.

First they wanted to try offering me $70,000 but they knew I was a professional who was going to fight so they offered $90,000 which is just $10,000 short of the policy limit.  How do I say no to $90k? I did knowing that my case is worth at least $300k.  They were literally nickel and diming me.  But I also understand the pressure someone in insurance is in to get even a small reduction.  Giving them 10% would be like me paying them a service fee, and I wasn't willing to do that, so I instructed my lawyer, Robert S. Fader (link below), to tell them we needed the whole $100,000.

Utica's response was ridiculous.  Their representative said they were only authorized to offer $90,000 and that simply wasn't true.  If the policy limit is $100,000 then that's what they are authorized to offer you in a settlement.  They talked to their supervisor and came back in less than an hour with $95,000 and I agreed immediately.

Honestly, later on I regretted not going back one more time and telling them we need the entire $100k or we're going to court.  It's only 5% but on the other hand it's $5,000.  I finished off one of my student loans for about $4,300 and paid off about $700 in credit card balances--so there's an example of where I could have used another $5,000 right there.  And it wasn't like I didn't deserve it for my injuries.  Ultimately, if I pushed more, I may have ultimately accepted $95k without regret, but I do regret that I didn't give it that one last little shove.

OK, so like I said, I only saw about $63,000 of that money after paying the lawyer and court fees, and that still seems like quite a lot of money, but it isn't.  Consider what you would do if you won that much money--after taxes--in a lottery.  Sure, you might dream of world travel and a fancy car, but if you were smart like I am, you might catch up on buying some items that you really needed anyway, treating yourself just a little bit, paying off the car you already have, killing off some if not all debt that has been hanging over your head and never seems to go away.  And that's exactly what I did--with money left over of course.

Day 1, I immediately paid off my car loan.  Had I chosen instead to just make the regular payments through the end of the finance term, I would have paid $7,000 more for the car.  I also paid off a couple of student loans, as well as all credit cards.  By doing this--no exaggeration--I just reduced the amount of money I pay out in bills by over $700 per month. That's $8,400 a year that will stay in my pocket without the interest on it going to various financial institutions!  I don't know about you, but to me that's quite a chunk of money.

Basically, anything that has an interest rate on it needs to be paid off right away before you can even think about having any fun.  Just do it.  But also consider this before you settle your case against the driver and their insurance.  After you do whatever you need to do with the money, including paying the lawyer and killing off debts, is the amount that is left worth it to you given what you have had to go through with your injuries and all you have had to do to get it?  

In my case, I have to say the answer is no, but I balanced it against waiting another two or three years to settle this case for the amount of money it would receive in court, and then fighting to collect it.  The benefit is, I'm done and I have the resources to get me through to the next stage of my life, which may include a whole new career (or returning to the old one I liked so much) and relocation for all I know.

Auto Insurer Preemptively Blocks Surgery

Want to read something outrageous?  The No Fault insurer contacted ALL the surgical facilities in my area in advance to tell them that they would deny any claim for surgery performed on me, saying the surgery is 'not medically necessary.'


Of course I had the surgery anyway.


So what happens next is the claims will be submitted to the no fault insurer, and when they deny the claim it will go into arbitration, and they will have to pay anyway.  All they've done is delay payment, and cost themselves more in fighting it.  This is one of the many unjust reasons your insurance premiums are so high, not entirely because of bad drivers, but because insurance companies and the firms they hire to perform bogus 'independent' exams are allowed to spend great amounts of money to deny and arbitrate claims that they know they are supposed to pay.  They know!  And yet this is standard practice, which is costing you money and injured people in many cases their physical abilities or even livelihoods.


Naturally you ask yourself, why would they bother doing this when they know that the surgery is medically necessary and they will have to pay for it?  The fact is, most of the time when an insurance company throws up obstacle after obstacle in front of an injured person, even though the injured person is right they will give up.  For example, imagine if I, like most people, didn't have my own Disability insurance, I couldn't work, and I wasn't receiving even the inadequate amount of money that the insurer is obligated to pay for lost income (about $2,000/month)--which they haven't paid a dime of yet.  Obviously I could not afford the time off work and therefore the surgery, and eventually I would maybe get a couple of thousand dollars out of them for pain and suffering, but no treatment.  Further, if I didn't have my own property insurance, or know how to use it as I described in an earlier post, I wouldn't even have a bike to ride.  In other words, I would have been disabled for life, and lost the ability to do something which is not only a normal activity for me, but dearly important to me as well.


That's what they do, to thousands, perhaps tens of thousands of people every year, who have been injured.


--------


OK, so now that we have that out of the way, a bit about this latest surgery and how it went.


The first surgery, on my left knee was done at Surgicare in Manhattan.  The right knee surgery--which was the same surgery--was done at Manhattan Eye Ear and Throat (MEET), also in Manhattan.  Both facilities are excellent, but I can do a little comparing for those of you who might be in the position of choosing one or the other.


Since this was my second time in less than six months having knee surgery, I went prepared.  I brought a book, my iPod with a movie rental download, my glasses, mobile phone fully charged, and various other little comfort items which I was or would have been allowed to use while at Surgicare for the first surgery.  This preparation was almost completely useless at MEET.


I arrived early, at about 5:45am, was done with the paperwork in a flash, then taken to a locker room to change into my surgery clothes.  I was not allowed to take anything with me while I waited for surgery to begin, so the iPod and all  were not worth bringing for pre-op.  However, at Surgicare I had a lot of paperwork to do and quite a long wait compared to MEET where I only had to sign a few things (after reading them of course) and hardly waited at all.  Even if I was allowed to bring my things, I wouldn't have had time to use them.


Honestly, I'm not sure which of the two experiences I liked better.  Both were rather decent; MEET is a bit fancier of a hospital, but who really cares when you're not even awake most of the time.  MEET has tiny TVs with streaming news, but without being allowed to bring my glasses to the waiting area I couldn't see them and the volume wasn't high enough to hear anyway.  At Surgicare, I had a good amount of time before and after to mentally even out, lots of people came to talk to me, and though I had to fill out a lot of paper work it really wasn't bad at all.  For the surgeons, I'm sure MEET is better, but for the patient it's a toss up.


By this time, my surgeons knew me, so when they came over to talk before the surgery it was more like were shooting the breeze.  They said they never saw anyone with such huge, muscular legs as me.  I told them it was really due to cycling all my life.  I told them I had done a fresh cycling leg shave a couple of days before, so one less thing to do, and that I would be taking my new knees up Mount Fuji next year--which I genuinely plan to do.


OK, so all rather boring, and that's what I really want you to know.  There is nothing to be scared of or nervous about.  By the time you're getting prepped for surgery, you've been checked in every possible way to make sure you actually need the surgery and that you're healthy enough for it.  All you have to do is relax.  Your big job is going to be physical rehabilitation afterwards.


The anesthesiologist came, put a tube in my arm and the next thing I remember I was sitting up in the recovery room being asked if I wanted coffee or juice.


Then they asked me if I had any pain.  I said I had a little so they gave me a Percocet.  This was a mistake.  A little while later I threw up.  I had an empty stomach--hadn't eaten in over fourteen hours--so what was this yellowish stuff I asked.  It was bile--which according to Wikipedia is "(ater (85%), bile salts (10%), mucus and pigments (3%), fats (1%), inorganic salts (0.7%) and cholesterin (0.3%)) which is produced by the liver."  That "ater" part is basically cholesterol as I understand it.


My brother arrived around 1:30pm--a little later than the planned 1pm.  At Surgicare they told us 1pm, that's when they woke me up, and my brother was sitting right next to me.  At MEET they woke me up right after surgery at about 11:30am, and the expectation was that I had some poor soul waiting in the lobby since before dawn--so Surgicare wins on that point.  MEET is a lot busier facility.


We went out front, flagged down a taxi, rode it home, deposited me on the sofa, chatted awhile before sending my brother off to the one pharmacy in my area that takes No Fault for prescriptions without me having to wait for them to get paid first, he came back, I gave him a bottle of Michael Collins whiskey--from the last independent whiskey maker in Ireland by the way--as a thank you, and he went home.


For the rest of the day, I attempted to eat and threw up absolutely anything that went down my throat, except for some homemade bread my landlord had made for my wife and me, with a bit of Smucker's Natural Peanut Butter.  The next day I asked the doctor if it would be OK to take Pepto Bismol along with my medicine and he said OK--so long as it wasn't anything with other medicine in it.  The Pepto Bismol saved me from throwing up after taking Percocet from then on.


And that's my story for now.

IME (Independent Medical Examiner / Examination) : 'Independent' from the Truth That Is!

As noted in an earlier post, the IME visit is required by the insurance company that is paying for your medical care.  If you fail to appear at the IME appointment they will refuse to pay your claim, but that only seems slightly better than what happens after you do show up.


I just received a Denial of Claim letter from Utica Insurance in the mail including the IME's detailed report with the "D&D Associates" fax tag at the top of each page--a quak doctor, the lawyer who hired the doctor, and the auto insurance carrier doing it's best to keep its hands clean while committing insurance fraud. There are several inaccuracies in the report; to name a few:

• ACCIDENT HISTORY:  It states that I said the ER x-ray revealed displacement.  I actually said--in writing--there was no displacement or broken bone.  I was specific about this because my injury is not to the bone structure and only the latter MRI could have shown the ACL tear and other damage.  I also wondered at the time of the IME why I--a non-expert in medicine of any kind--was being asked for diagnosis.  I have a degree from Harvard in Social Sciences, not medicine.
• EMPLOYMENT HISTORY: It says I state that I do not perform household chores, shopping, heavy lifting, kneeling, or carrying bags.  I currently can't perform these normal, every day actions, but normally I perform all of these functions--particularly because my wife has Rheumatoid Arthritis.  As respects kneeling, not only are we a Japanese household, but we are Buddhist, so kneeling is something I normally do on a daily basis, but obviously can't (been practicing Buddhism in a chair lately, and outstretched on the sofa before that).  We need a copy of the document I filled out at the IME's office to verify the context of the question and how I answered it--particularly because I wrote all over it.
• ORTHOPEDIC EXAMINATION: Lumbar--I told the IME I have constant pain in this area which makes it impossible to sit in a chair for long periods of time--like at work for example.  I recently had an MRI of this area to determine if I need surgery or some other kind of treatment as a result of being twisted when the car hit me.  It hurts as much right now as it did the week after I was hit.
• SUBMITTED RECORDS (Page 3): He notes the narrative report of the foot and ankle specialist but none of the other orthopedists who examined my knees.  Basically, they've chosen to review all medical information irrelevant to what I am being treated for and ignored the rest. 

This IME performed examinations on an assembly line.  His whole business seemed to be examinations like mine where the aim was to deny claims. 

At one point in the exam he said, "So the right knee isn't so bad." And I replied, "Not so bad?!  The MRI revealed a torn ACL and the surgeon says I need to have the same reconstructive surgery I just had on the left knee!"  But no note of this.  In fact, it seems my right knee is injured worse than my left knee was, but because the left knee was hit directly by the car it was in greater pain.

OK, so here's the game.  Do you stop going to treatment because you received this Denial of Claim Letter?  The answer is no.

Before this next part, please note the following Disclaimer:

EVERY CASE IS DIFFERENT AND EVERY JURISDICTION IS DIFFERENT.  THIS EXPLANATION IS NOT MEANT TO BE LEGAL ADVICE AND READERS ARE ADVISED TO SPEAK TO A LAWYER ABOUT THEIR OWN SITUATION.

OK, got it?  Good.  So here is the basic explanation why you shouldn't immediately go back to work untreated and injured for life (between the dotted lines):

--------------------------------------------------------------------------------------------------------

When you go to see a doctor after an accident involving a motor vehicle, the doctor asks you to sign a form called an "Assignment of Benefits".  This form allows the health care provider to bill the no fault carrier directly and to get paid directly.  It also assigns to the health care provider all the "rights and responsibilities" relating to the bill.  So, basically, the doctor assumes all of your rights to fight the insurance company to get paid.  This is very important because it means that once a doctor submits a bill to the no fault carrier, it is the doctor's sole responsibility to fight a denial.  The assignment further insulates you because, unless the denial is based upon something that you did wrong, such as failing to appear for an IME, or failing to give the doctor the no fault carrier's information within 45 days, the doctor is legally barred from trying to collect the bills from you. (You might want to confirm that you did sign an assignment for your surgeon).  The theory behind this is that the doctor is the best one to make a determination as to whether or not a particular treatment is related to the accident and once he has made that determination he should be willing to stand behind it.  

Now, many doctors do not realize that they cannot come after the patient for any denied bills but many do realize that and most busy medical practices employ lawyers who only do fault arbitrations. 

There is one thing to remember, however, about no fault arbitration:  If a doctor arbitrates or litigates a no fault denial and loses,  you would be barred from claiming that the treatment which was the subject of those bills was part of your case because a judge or a jury alread said it wasn't.  As a practical matter, though, it's not much of a problem because most of the arbitrations settle, most of the ones that don't settle are won by the doctors and, your case will likely be over before the arbitration is done.

--------------------------------------------------------------------------------------------------------

I will add my bit as an Insurance Guy that this really isn't dissimilar from what I said about Subrogation.  It means that you have waived your right to pursue compensation for your losses and given that right to someone else--a lawyer, doctor, or insurance company for instance.  Your monetary losses are therefore no longer your own, they belong to someone else.  The obligation you have to that other party is to assist in any way possible in their recovery of those losses and--very important--not to admit liability by saying things like "Oh wow, I'm sorry, it was at least partly my fault."