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Subrogation Claims in a Personal Injury Case

Posted Friday, March 12, 2010 by Christopher L. Thayer

alt textOne of the more perplexing concepts that I need to explain to most personal injury clients is the concept of subrogation. Here is an explanation in a nutshell, in a typical personal injury action arising out of a motor vehicle collision, your medical expenses are paid through your own insurance company under what is known as your Personal Injury Protection (PIP) coverage. Under PIP coverage, your own insurance company pays for your medical bills (as long as they are “reasonable, related and necessary” to treat an injury or condition caused by the motor vehicle accident. This payment is made regardless of who is at fault for causing the collision.

Assuming there is a 3rd party at fault, you can (and usually should) pursue a claim for damages against the at fault party. A component of your damages that you are entitled to recover are your medical expenses – even though they may have already been paid by your PIP coverage. When/if you settle or receive an award against the at fault party, you will then need to deal with your PIP carrier’s subrogation claim that it will assert against your recovery.

Your PIP carrier is entitled to this claim based on the language in your auto insurance policy. You know, the one you have probably never read, right? There are also equitable principles that allow your insurance company to seek reimbursement. The theory is that your insurance company has paid medical expenses that were incurred due to the fault of another and if you recover any money from the at fault party, your insurance company will want to seek reimbursement to the extent your recovery includes compensation for medical expenses incurred.

Many clients find this concept frustrating. Why are they having to pay some of their money to their own insurance company? Why have they been paying premiums all these years if this is how the insurance company is going to treat them?

Well, the good news is that there are some exceptions and some Washington case law that helps personal injury clients in this situation, especially ones who have hired an attorney. I will come back with a follow up blog post on these tidbits in the next few weeks.

For more information, please contact Christopher Thayer at 206-805-1494.

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New Google Scholar Feature

Posted Monday, November 30, 2009 by Christopher L. Thayer

alt text Google has announced a new feature, Google Scholar, that allows users to search case law and legal journal articles on a variety of topics, and its free! As lawyers most of us have access to this information via a pay service, but now the public can access this information for free. I believe that this a huge step for Google and for how people will use the internet for research to help answer legal questions for average citizens.

Here is a blog entry describing this service.

And here is a link to the actual Google Scholar service itself.

For more information, please contact Christopher Thayer at 206-805-1494.

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Helpful Link on Personal Injury Claims from the American Bar Association

Posted Friday, November 13, 2009 by Christopher L. Thayer

alt text Here is a useful link from a site maintained by the American Bar Association (ABA) containing a basic overview of personal injury claims.

Link: “Personal Injury Claims”, American Bar Association

For more information, please contact Christopher Thayer at 206-805-1494.

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"What is My Personal Injury Claim Worth?"

Posted Thursday, November 12, 2009 by Christopher L. Thayer

This is probably the #1 question I get asked by my personal injury clients. The short answer: “It depends”. But, most clients or prospective clients don’t want to hear that, so I always take some time to explain what factors affect the value of their claim and how insurance adjusters view the process.

In Washington, a person with a personal injury claim, is entitled to recover two broad categories of damages: special damages and general damages. Special damages, also known as economic damages, are damages that are subject to precise calculation, such as medical expenses (must be “reasonable, related and necessary” to treat injuries/symptoms caused by the accident), future medical expenses (confirmed to be required by a healthcare provider), lost income or wages, lost future income (if any due to full or partial disability caused by injuries in the accident), and other costs and expenses that are subject to ready calculation. A good resource on this issue is to look at the Washington Pattern Jury Instructions (WPI). A free link to these can be found here.

alt textGeneral (or sometimes referred to as noneconomic) damages are defined as: “subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.” RCW 4.56.250.

The tough part is how to calculate what constitutes fair compensation for general damages? Again, “that depends”. These days, most insurance companies have software that they rely on to calculate what they think is fair. This software is proprietary, but based on practice and experience, I have a pretty good idea of what data goes into the software at least – we just don’t know how in the world they come up with their calculations. And it is good to remember that the amount of damages an insurance company thinks you are entitled to based on some software program is not dispositive. You always have the right to file a personal injury lawsuit and let a jury or arbitrator decide what is fair. In my experience, several factors come into play in determining what constitutes fair compensation for general damages: nature and severity of injuries, the severity of symptoms (e.g., pain scale ranking of 1-10 is a common measure), the degree to which the injuries and symptoms impacted the client’s life as shown by objective evidence, and the degree to which any of the injuries or symptoms are permanent and may require future medical treatment. There are other considerations, which I don’t want to discuss in this forum, but these are the most significant factors in my experience.

So, what does this mean? Each personal injury case has to be assessed individually. You can’t just plug in numbers and come up with a precised calculation – notwithstanding that is what insurance companies do.

For more information, please contact Christopher Thayer at 206-805-1494.

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Washington Supreme Court throws out medical malpractice law

Posted Thursday, September 17, 2009 by Christopher L. Thayer

alt textThe Washington Supreme Court issued a decision invalidating the requirements of RCW 7.70.150, declaring it unconstitutional. Under RCW 7.70.150, a patient who believed that they might be the victim of medical malpractice as a result of the breach of the standard of care, was required to obtain “Certificate of Merit” from a qualified expert prior to filing suit. Prior to filing a lawsuit it normally impossible to obtain information that is not included in the patient’s medical records, which might help prove a malpractice case. For example, hospital policy and procedure manuals can’t normally be obtained without filing suit. As a result, it is not uncommon to have situations where you suspect that there was medical malpractice but, absent the tools provided by an actual lawsuit to force the production of certain information, patients were kept out of the court room. After this decision, it will be easier for patient who have been the victim of medical malpractice in Washington State to investigate and pursue their claims.

The Seattle Times’ story about this decision can be found here.

And a link to the actual opinion can be found here:

For more information, please contact Christopher Thayer at 206-805-1494.

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