January 13th, 2017
Whiplash Damages in Rear-end Collisions The Patient’s Dilemma
The rear-end collision is a major cause of cervical spine injuries which often require treatment by chiropractors and other health care practitioners. Claims adjusters trivialize soft tissue injuries [it’s “only” a sprain or strain] but whiplash is real and so are the damages that come with it.
While many auto claims scenarios raise troublesome liability issues [who’s at fault?], such is not the case with the patient who’s been rear-ended. Almost without exception, the driver who caused the accident is responsible for the damages suffered by the victim of his negligence.
The insurance carrier for the at-fault driver will readily concede liability. From a claims perspective, the battle is half won when the parties agree that the driver who rear-ended the patient should pay for the damages he’s caused.
The patient seldom has to fight to get medical bills paid. Claims adjusters routinely extend offers to pay the out-of-pocket costs of care. Sometimes, the settlement pot is sweetened with a few hundred dollars for “pain and suffering.” The patient signs a release. A check is issued. The claim is settled and the adjuster closes his file. And justice has been served … or has it?
In addition to the stressors of accident-related symptoms, patients must deal with insurance issues, payment for the cost of care and the uncertainty of a sometimes daunting claims process.
Unsuspecting accident victims are often tempted to settle long before treatment is complete because resources to pay for their care may be limited. Usually the settlement offers tendered by adjusters represent a fraction of what the claims are worth.
Is legal representation the answer?
Legal representation may be required to get full and fair compensation if the patient can find an attorney willing to pursue the claim. However, the availability of counsel is driven by the contingent fee system in which fees are paid in proportion to the amount recovered. For claims in which the recovery potential is modest, fees paid to the attorney are also lower.
Cases involving soft tissue injuries and relatively minor chiropractic bills are not attractive economically to plaintiffs’ counsel. Because of the economics of the contingent fee system, the patient is often left to go it alone in negotiating with the claims adjuster.
Critical yet basic knowledge concerning personal injury damages can go a long way to level the playing field between an experienced adjuster trained in negotiating techniques and a patient who usually knows little about the claims process.
Adding Value to the Benefits Assigned by Your Patients
The patient’s claim against the at-fault driver is a source of compensation for services rendered for treatment. Often the patient will assign benefits to which he is entitled from the at-fault driver.
A generous settlement increases the prospects that the chiropractor will be paid. The potential for a win-win professional relationship is enhanced when the chiropractor is assured that, upon settlement, his fees will be paid.
Similarly, the patient can receive a full course of treatment reasonably expecting that recovery from the at-fault driver will be adequate to pay for the costs of care.
In a rear-end collision or other auto accident scenario where liability is undisputed, effective communication from the patient to the claims adjuster which describes his or her damages can significantly increase the recovery. This can be accomplished without involving attorneys and paying contingent fees.
The following components of your patient’s damages should be covered, if applicable:
- Medical bills. The costs incurred by the patient for treatment are recoverable. Such costs include reasonable and necessary diagnostic tests even if the results are negative. If accident-related medical bills are likely to be incurred in the future, such prospect should be documented and the cost of future care quantified. You can assist your patient in doing this. Only charges which relate to necessary treatment are recoverable. Similarly, only reasonable charges will be reimbursed.
- The nature, duration and extent of the injury. These elements of damages can be demonstrated by having your patient provide the claims adjuster with a copy of your records and bills. Your treatment records will reflect the diagnosis, course of treatment and prognosis.
It is helpful for the chiropractor to include a brief statement “To Whom it May Concern” which states that, to a reasonable degree of medical certainty, the injury was caused by the accident.
Only damages for injuries caused by the accident are recoverable.
- Pain, discomfort, suffering, disability and anxiety. During recovery, the patient should keep a diary which reflects how accident-related symptoms have impacted the quality of his or her life.
Pain, discomfort, suffering and anxiety are legitimate components of damages for which the patient is entitled to compensation in most states. Pain includes headaches and stiffness of the neck and spine. Discomfort and anxiety may involve going for weeks without a good night’s sleep. Accident-related symptoms may prevent your patient from participating in a favorite sport or recreational activity.
- Lost income. Another aspect of your patient’s claim may be loss of income.
He should obtain documentation from his employer which shows his rate of pay along with copies of his W-2 forms and income tax returns for recent years. Documentation can be obtained directly from the patient’s employer which reflects the precise dates and time frames when work was missed and income lost because of accident-related symptoms and treatment.
A claim for lost income by self-employed individuals raises challenges because the financial loss is not as easily quantified. One solution is to determine the patient’s hourly income by referring to tax returns and other income records then multiplying that number by hours spent in recovery and treatment.
- Lost pleasures of the marital relationship. “My Baby’s Got a Headache” is a popular song by the Bresnan Blues Band based in northern Arizona. The singer laments a lost opportunity for sexual intimacy because his “baby’s got a headache.”
Bresnan’s lyrics are humorous but the sobering reality is that accident-related pain and stress do diminish the joys of the marital relationship, including the gift of sex. Spouses and those in relationship have the right to the company, affection, love and services of each other. These damages are sometimes referred to as a “loss of consortium.” Your patient is entitled to compensation for this intrusion upon the marital relationship and its mutual benefits.
- Compensation for the reasonable value of nursing care and other services rendered gratuitously by friends or relatives. In many states, compensation is allowed for the reasonable value of nursing care and other services rendered gratuitously by friends and relatives of the patient.
The rationale for the rule is that someone who receives such services actually suffers a detriment because of the well-known fact that persons wear out their “welcome” with friends and relatives unless favors are returned. If your patient has had to rely on a neighbor, relative or friend for transportation to your office during treatment, the reasonable value of such chauffeur services may be compensable.
In receiving these favors comes a moral obligation to repay them. Such obligation is a detriment which many courts have found to be legally compensable.
The patient should document nursing care and other services rendered gratuitously by family members and friends. The dates of service, their nature and the time it took to render them should be detailed. In presenting a claim, your patient should offer evidence which demonstrates the commercial value of the services.
Timing is Everything
Your patient should resist the temptation to settle before treatment is complete. A signed release will discharge the at-fault party and his insurer from all further liability including claims for unforeseen symptoms and losses which may surface after the release is signed. There are no second bites of the proverbial apple.
A Practice Tool For Patients.
[Editor's Note: This book is no longer available from ChiroCode]
My book, Auto Claims Without Attorneys, is a user-friendly guide for patients who have been in auto accidents. It covers the ins and outs of the claims process in easy-to-understand layman’s terms.
The book has discussions concerning damages, liability and insurance coverage issues. It has many useful forms, including sample demand letters to insurance companies.
Auto Claims Without Attorneys will add value to your patient’s claim and increase the fund from which payment of treatment costs can be made through an assignment of benefits or other agreement with the patient.
The information is only useful if it’s put to work by the patient.
The chiropractor is in a unique position to get the knowledge into the hands of those who need it when it’s most needed.
The book can be purchased at wholesale prices to give or sell to patients.
The book is available in the ChiroCode store. This article is not intended to serve as a substitute for legal, tax or other professional advice. Laws regarding insurance coverage, liability and damages vary from state to state. If legal or other advice is required, the service of a qualified professional should be obtained.