When a head or brain injury is suffered in an accident another party is often at fault. Whether a motorist, product manufacturer, contractor, or property owner, the party at fault has an obligation to reimburse the injured person for medical expenses and any other economic consequences of their action or failure to act. To receive the compensation due, the injured person’s first step is to file an injury claim.
Resolving an injury claim proceeds in several phases:
- Notice of injury
- Documenting your claim
- Letter of demand
- Negotiation
- Settlement and release if a reasonable offer is made
- Lawsuit if the offer is not acceptable
When someone is not able to take these steps for him or herself, a representative will need to take these actions on the injured person’s behalf.
Notice of Injury
The notice of injury is simply a letter stating the date and location of the accident, that you were injured and that you may be seeking compensation for your injuries. Say as little else as possible because you may lock yourself into unfavorable terms in a later settlement. The less you say, the more you preserve your options. Send this letter to the other parties, their insurance companies, and your own insurance company.
The letter requires no demand for payment, no evidence of fault or any other type of substantiation. That will come later. For now, you’re merely satisfying your obligation to notify everyone involved. Failure to promptly notify the parties can undermine the validity of your claim, so send the letter as soon as possible after the accident, and request acknowledgement that they received your letter. File your letter and the acknowledgement away safely as proof you complied with your responsibilities.
Documenting your Claim
Immediately after the accident, you want to start writing down everything you can about the accident itself and any subsequent conversations with the parties, witnesses or insurers. Your notes will later prove invaluable in substantiating your claim. Also, obtain and keep copies of every document related to the accident and your injuries.
Small things can also make a huge difference in your case. Keep the clothing you were wearing at the time of the accident. Any photographs you’re able to take to substantiate your injuries are also valuable. Photographs of the accident scene, even if taken afterward, may later provide evidence you weren’t aware of. If any type of potentially faulty equipment is involved, don’t dispose of it.
Letter of Demand
The letter of demand is a request for a specific amount of compensation for your injury. Before you can send such a letter you need to know how much the injury is costing you in present and future medical bills, loss of income, and other costs.
In the formal demand, you want to provide all the documentation possible: including accident records, police reports, medical records, test results, witness accounts, copies of bills, work records showing time lost, and anything else proving the existence and cost of your injury, as well as the other party’s liability for the accident. Only send copies - never originals.
For a mild head injury, it may be several months before the extent of the injury is clear and what the future costs might be. For a severe traumatic brain injury, the costs of future care, rehabilitation, and disability may be extremely difficult to estimate even after six months have passed.
The insurance company knows this and may contact you to settle a claim even before you send your letter of demand, hoping that the lure of immediate cash in hand will lead you to settle before you discover the true economic cost of your injury. Settling too soon and for too little is one of the worst mistakes victims make.
In cases involving serious injury, an attorney with extensive background in brain injury claims can draw on his experience with past clients to help you estimate the true costs of future care, rehabilitation, and disability you may not even be aware of. The attorney can also place a value on the emotional stress suffered by you and your family and other non-economic damages you may be entitled to.
Negotiation
At first, the insurance company will try to claim that their insured party is not at fault for the accident, or that you share some responsibility. If you’re lucky, you’ll have police reports, witness accounts, photographs, and possibly even the other party’s own statements to deflate that argument.
Next, the insurance company will try to minimize the amount of damages you’re seeking. In arriving at a settlement offer, the insurance adjuster is visualizing how well your claim would be viewed in court. If you’ve documented your claim thoroughly and negotiate well, the insurance company may have to capitulate and make a fair offer to settle the claim. They will probably offer a little less than you’re asking knowing that if you have to hire an attorney to go to court, attorney fees could leave with you with less even if you win the full amount you’re asking for.
Settlement and Release
If you accept the insurance company’s offer, you’ll sign documents releasing the company and the other party from any future claim before receiving your check. If delayed symptoms of your injury later arise resulting in additional medical bills or loss of work, you have no recourse for additional compensation.
Lawsuit
If you don’t receive what you consider a reasonable settlement offer, you have little other choice than to take the matter to a court to settle the dispute. If you haven’t already involved an attorney in your claim, you’ll have to find one now.
Be sure to hire an attorney experienced in brain injury claims who is very familiar with the subtleties of proving cognitive impairment and understands the long-term consequences of traumatic brain injuries.
Note: This article is for information purposes only and is not intended to provide legal advice. For legal advice, please consult an attorney experienced in the appropriate area of law. If you need help finding an attorney, please use the form at the upper right to contact us for a referral.
This article was featured in the Carnival of Everything Money at The Penny Daily.
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