Wednesday, March 19, 2008

Horrible Idea

I know this is a horrible idea.. but I have a legal question to any of you Lawyer/Poker players who Hoyazo says infest this realm. So as you may or may not know a year or so ago my little daughter (three at the time) was in the "care" of a small (But Ritzy) gym chain in their tots program. These buffoons were not watching her closely and also had the mats setup wrong and also she was on equipment she should not have been on and she fell. She snapped the bone in her arm and had to be rushed to the hospital where they put her on a morphine drip and set her arm as she howled in amazing amounts of pain. No fun for anyone. So anyway the insurance company wants to send us 5K to settle the whole thing and not sue the fuck out of them. We probably were not going to sue the fuck out of them but were considering it.

My first question is how do you quantify the value of this kind of case. Is it worth going after them for more money? Is there some easy way to figure out a probable dollar amount? I mean if we are talking a few thousand more then its probably not worth it. If we are talking 10-20K more and up then why the fuck not. Consider that she is four and very cute. Go Jury!!!!!!

The second question is how do we protect against future problems. Now she has been back to the doctors and the arm is growing back correctly and nothing is out of place. Hopefully that is the end of it but there might be a slight chance it does not heal correctly and she might need surgery in the future. I assume taking the payout stops us from getting this treatment paid for in the future. Is this something we should be concerned about? Would insurance cover it all? Any idea? Can we make a clause that any future medical bills related to the injury must be paid by them but we will not ask for future pain and suffering damages?

Anyway I figured I would throw it out there for the fuck of it. Let me know if anyone has any experience with this kind of thing.

18 Comments:

Blogger Shrike said...

This is meat-and-potatoes stuff for a US-based civil litigator who does insurance work. Sadly, I am *not* that person. Short answer, though: YES, see if you can get more money out of them. Maybe Evy or CK would have more detailed advice to offer?

2:22 PM

 
Blogger Evy said...

Hey waffles...

I can maybe answer a little bit...i'm not only a paralegal, but also an insurance claims administrator (not for liability insurance, though).

Normal disclaimer: I am not an attorney and this does not constitute legal advice. These are just some thoughts based on my experience in the field.

Most likely you are dealing with a claims administrator who does not have a lot of authority. Ask to speak to claims counsel (they should have in-house attorneys). Explain the situation. Tell them that you don't want to have to file suit, but that you don't think $5K is reasonable whatsoever if it is a clear case of negligence like you think.

As to quantifying the injury, you really can't. I also used to do medical malpractice defense work (yes, i get around, lol). She would have to be examined by a doctor (most likely an expert witness if you do decide to sue), who will issue a report regarding the extent and the causation of her injuries. He will also probably opine and any future effect the injury will have on her, if any.

Your damages are your actual damages -- medical bills, lost time out of work taking her to doctor/hospital, etc. Then there are special damages -- pain and suffering, etc. You can also ask for future medical expenses for a certain period of time -- I think they call it "open medical" -- so you would settle for a lump sum of $$$ plus six months of open medical or something like that.

I would recommend that you ask to speak to claims counsel or some kind of claims supervisor. If you still don't get the resolution you seek from them, you should consult with an attorney to see what your options are. Each state has different laws and there is also the statute of limitations issue (you only have a certain amount of time from the injury to sue).

ANyway, i hope this helps.

3:06 PM

 
Blogger mookie99 said...

"If we are talking 10-20K more and up then why the fuck not. "

Look out 5/10NL, here comes Waffles!

3:15 PM

 
Blogger SirFWALGMan said...

So how much should I be looking for though Evy. For like 2 broken upper arm bones. Morphine applied to a 3 year old for the pain. I doubt hospitals do that lightly. What would a fair figure be and how would I come to that figure? As far as doctor bills so far they have been negligible.. probably like 5-10 50$ Hospital/Doctor visits for like $500. So the actual out of pocket expenses are not much at all.

3:18 PM

 
Blogger HighOnPoker said...

Since I am not an attorney in your state, I cannot give you legal advice, but I can point you in some directions to help you find the answers you need.

Woffle, you have a certain amount of time to file a lawsuit. I can't say how long it is in your state, but if you search online for the statute of limitations for your state for personal injury actions, it shouldn't be too hard to find. In NY, it'd be 3 years. I recommend you wait before accepting the check, just so you can get an idea as to whether there will be any long-term consequences because of the break. The insurance company may make the money time-dependent though (i.e., decide in a month or its off the table) but usually its a BS ploy and the money will still be available to settle when you need it. Also, speak with your kid's doctor to get an idea about potential long term problems and ask him how long it'll take before she is fully healed. If it is within the statute of limitations, you may want to sit on it for a bit just to see that it is progressing well.

3:23 PM

 
Blogger Luckbox said...

I'm not an attorney at all, but I watch Law & Order all the time.

I say sue the fuckers and ask for $1 million. Tell them your daughter is now afraid to leave the house.

And then you can settle for like $200K and it's like you cut them a deal.

3:35 PM

 
Blogger Mondogarage said...

I'm only a paralegal, and cannot offer actual legal advice in any jurisdiction.

However, you want to keep in mind the costs to litigate. If you're going to go beyond trying to ask the insurers for more money, you're looking at retaining counsel. I suspect standard P.I. cases are running 30% or so contingency, plus costs.

Whatever amount they tell you they can get out of hoity-toity gym insurer, you have to slice that right off the top.

3:41 PM

 
Blogger John said...

everyone in new england knows the answer to this:

http://www.jimsokolove.com/

3:47 PM

 
Blogger Evy said...

dammit...i just left a huge response and your page gave me an error and wouldn't publish it. ugh. i can't retype it all....

But, basically, it all depends on whether your daughter is going to need future treatment/therapy. If yes, then you need to wait and consult with her doctor before settling anything.

If not, then you have to try to express to the claims person/counsel the emotional impact this has had on you and your daughter....how its going to be hard for you to trust leaving her at a daycare...how she may have nightmares, etc. These are all things they are not going to want to have in front of a jury. However, if you try to ask for too much, and they think they have a decent shot at prevailing in court (which all depends on your state laws as to what the standard of care is in the situation), they would probably choose to pay a lawyer to defend because that would be cheaper than paying you.

If it was me, I would probably counter with $25K. Most likely we'd end up splitting the difference and settling for $15K. Again, this is assuming there is no future medical treatment needed.

In a case like this, you can't do A + B = C to get damages. There is no way to properly quantify emotional damage.

Good luck...

5:29 PM

 
Blogger KajaPoker said...

I love how all the legal eagles start of with some CYA disclaimer. Awesomeness!

I don't give a rats ass about being able or allowed to give legal opinion. There's a reason the USA has two of the three letters in the word SUE. Sue everybody I say!

Ritzy Chain - Sue!
Local Gym Franchise - Sue!
Local Government who gave them a business license - Sue!

Morphine to a 3 year old - Sue!
Who can put a dollar figure on the mental issues she will develop from this? The memories she will have? The flashbacks in gym class? The relationship issues she will? The drug abuse? The bi-sexuality?

She's got her whole life ahead of her? How can you even put a price on that?

Make them pay I say. Make them pay!

5:39 PM

 
Blogger KajaPoker said...

Sorry about the rant. Sue me!

5:41 PM

 
Blogger Gadzooks64 said...

I received a settlement from an insurance for a minor car accident ages ago.

I was told then that P&S was usually paid out at whatever the medical bills came to.

Dunno if that helps you at all but that's my experience with it.

6:42 PM

 
Blogger AgSweep said...

not my area of law, but most law librarys have a set of books with settlement amounts (valuation guides), or at least they did in the dark ages when I worked in one. I would speak to your local law librarian. One such set is called Personal Injury Valuation Handbooks (KF1256.A8 P872)(that's the call number) there are lots more.

8:58 PM

 
Blogger Klopzi said...

Your daughter broke her arm and it was an accident. Don't go back to the chain and let friends know what happened.

Just be glad that you're not living in Canada: you wouldn't even get the $5K to begin with.

6:09 AM

 
Blogger Special K said...

Don't talk to the insurance company personally!!! Get a lawyer to do it for you. You don't know when you will say the wrong thing and it cost you and your daughter many k's. Then get the lawyer to ask for more, then take it and get on with your life. It's almost never worth the hassle.

My 2 cents.

6:39 AM

 
Blogger CC said...

I am not an attorney, but it seems you could get a couple guys from Columbia to kidnap their executive, get some sort of large ransom, then split it with the muscle. That seems like more than $5k.

11:57 AM

 
Blogger mik said...

im not an attorney but im sure you could find some whore lawyer who would take this case...he/she knows he/she would already pocket a third of your first 5 K. easy money.

you should just take the money and enjoy it. your daughter will be fine...in spite of her father being a greedyplaythesystemsoits ruined for people with legit pain and suffering.

if your daughter fell on the in front of your house, broke her arm, youd look to sue some higher being....and ask all the rabbis and priests who read your blog for advice.

5:16 AM

 
Blogger Hammer Player a.k.a Hoyazo said...

5k is paltry man. That is chump change to any real company. I'm liking your thoughts of describing the morphine drip with the cute 4 year old on the stand.

Shall we start the bidding at, say, $100,000?

12:20 PM

 

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