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$130,000 Settlement for Neck Injury Victim

Case Description: An accident caused by a sudden, improper lane change on I-264 in Virginia Beach left a woman with a serious neck injury

Firm Attorney and Staff: Richard N. Shapiro, Attorney; Roz Hughes, Paralegal; Meg Cudden, Legal Assistant

Court/Date: Virginia Beach Circuit Court/February 2009

What Happened: Our client, an urgent care medical assistant, had been driving a car when it was smashed in the rear at a high rate of speed by the another car's driver who suddenly changed lanes on I-264 in Virginia Beach, VA. The at-fault driver tried to change lanes at the last second but instead crashed into the back of our client's car, making the entire rear of the car a complete and total loss and causing serious injuries to our client, who was simply slowing down due to heavy traffic ahead. Our client was transported to a hospital emergency room right away, complaining of back and neck pain.

Our client was treated by the doctors with whom she worked, and those physicians eventually referred her to a neurosurgeon. Based on an MRI conducted on her neck, it was clear that she suffered from a disc protrusion/disc herniation in her cervical spine, caused by the serious wreck. The neurosurgeon told her that she was a surgical candidate and would likely need reparative surgery within 5 years.

She also had the classic symptoms of tingling hands and occasional numbness that signal a significant neck/cervical disc injury. However, our client wanted to avoid undergoing the neck/cervical surgery at all costs, as she was familiar with the difficult rehabilitation and the possible complications from such a significant surgery.

Key Strategy: Our client missed very little time from work at the urgent care office but obviously had a serious neck injury, and her medical expenses were about $8,000. When I explained to her  the limitations of her recovery under insurance law, I told her the only way to gain any compensation for needing neck surgery in the future was to ask her doctors to give an opinion, to a reasonable degree of medical certainty, that she would need the surgery. Without that medical opinion, we would not be able to obtain the recovery for the major surgery and physical therapy expenses in the courts.

I further explained that the second hurdle would be to convince an insurance company of the fair cost of that future surgery even though it had not been conducted or even been scheduled.

Our client felt strongly that she should be entitled to recover the money for the future surgery given that her neck had no herniation injury prior to the accident. I agreed with her and told her that we needed to not only get the opinions I outlined from her neurosurgeon, but we would probably need a nurse consultant to find out what the current costs were for all of the associated surgical and medical expenses relating to the neck surgery, including the normal amount of physical therapy and other testing that would be required.

Accordingly, we retained a nurse consultant to establish the reasonable and necessary medical costs for a neck surgery, and we asked the nurse consultant to consult with the neurosurgeon on these issues. We obtained a full and complete report from the nurse consultant outlining the future medical expenses, and then we had to follow up with our client’s doctor ourselves, obtain a telephone conference, and be sure the doctor agreed with all of the expenses and types of procedures outlined by the nurse consultant. 
The future expense report outlined over $200,000 in health care costs.

While the suit was pending in Virginia Beach Circuit Court, our client still had not undergone the neck surgery but we maintained that the driver who caused the crash was responsible for the medical expenses outlined by her surgeon. The defense argument was that our client had not undergone the surgery and it was about two years since the date of the accident.

During the lawsuit discovery phase, the defendant driver essentially admitted his fault, and our medical assistant client made an excellent witness as to the extent of her medical problems.

Outcome: A settlement was reached for $130,000, which will help our client pay for future medical treatments, including neck surgery.

Prior to the lawsuit, we could not get the insurance company to offer more than $25,000 to settle the case. Once we filed the suit and obtained all of the reports that I outlined above, we eventually received an initial settlement offer of $100,000 from the primary insurance company representing the driver who caused the crash. Fortunately, our client had access to two other different car insurance policies under what is called uninsured/underinsured motorist coverage, which covered her adult children, two of whom resided with her when the car accident occurred.

Different states have different rules, but in Virginia, all of the available uninsured motorist coverages can be combined, or stacked, together. If the combined polcies exceed the amount of the responsible driver’s total liability insurance, that stacked amount becomes additional insurance that may apply to compensate the injured person.

In this case, all of the uninsured motorist insurance coverage totaled $200,000. We eventually settled the case for $130,000, with three different insurance companies contributing.