Valuing a Personal Injury Case
There’s a common misconception that to value an injury case, all you have to do is multiply the medical bills by 3, 5 or 7. In reality, that’s a terrible idea. It is nearly impossible to list all factors, but below are the most common things to consider when valuing an injury claim.
- Liability – chance of prevailing.
- Liability – percentage that’s your fault.
- Medical Bills
- Type of Physical Injury
- Need for Surgery
- Emotional Distress
- Length of Treatment
- Your Income Prior to the Injury
- Whether You Have Health Insurance
- Lost Wages
- Loss of Earning Capacity
Liability – chance of prevailing.
If the at-fault party (the defendant) in your case is clearly liable for your injuries, you better believe the value of your case will go up. The opposite is also true. If you have a bad case, the value will drop dramatically.
In Missouri, you can recover at trial even if the defendant is only 1% at fault for your injuries. However, don’t expect to settle with a business or insurance company unless they are at least 50-75% at fault. Yes, this can be a difficult to determine, but you need to gather as much information up front as you can to show the defendant is at fault.
Liability – percentage that’s your fault.
This is different than your chance of prevailing. That has to do with the defendant’s fault. This has to do with your fault. For example, let’s say another driver ran a red light but you were speeding. If you weren’t speeding, then you might have been able to avoid the crash. In this scenario, your ability to recover would be reduced.
Amount of Your Medical Bills.
Yes, your medical bills matter. The higher your medical bills, the higher your settlement (usually). As we explain below, health insurance hurts you, regardless of how much your medical bills are. Over-billing is also an issue. That’s why you have to be careful with which doctors you go to. Some charge too much for their services, and others simply treat you more than they should. The wrong doctor can blow up your case.
Type of Physical Injury.
A broken bone is worth more than a sprained ankle. A concussion can be worth more than a broken bone. In other words, not all injuries are created equal. Insurers use diagnosis codes to value cases. This is why getting the right diagnosis is so important. One wrong diagnosis code and you could cost yourself tens of thousands of dollars.
A temporary injury just simply isn’t worth much. But most injuries have some sort of permanency, even so-called “soft tissue” injuries. Think of certain parts of your body as Silly Puddy, not a rubber band. Silly Puddy remains stretched, rubber bands bounce back.
Showing that an injury is permanent is key. This can be done through objective testing (X-rays, MRIs, CT scans, etc.) and doctor testimony, among other things.
Then there are the obvious types of permanent injuries like blindness, scarring, lost limbs, etc. These types of cases are worth substantially more than a typical injury case, and rightfully so. These injuries are life altering and take a tremendous amount of treatment for the rest of the person’s life.
Establishing a permanent injury is not always easy, and hiring the right experts makes all the difference.
Need for Surgery.
Surgeries can make the value of a case to sky rocket. The reasons are pretty simple and obvious. First, surgeries are expensive. Second, a surgery is literally a doctor cutting on your body. That last part is a big deal.
But beware. A surgery can also reduce the value of your claim. How? Surgeries can sometimes resolve an injury almost completely, so this removes the pain and suffering portion of a claim. A prime example is scar revision surgery. If the doctor does a great job, then the scar won’t be visible. This would be great for you and bad for the value of your case. But that’s a good thing, right?
Oh, the often overlooked emotional distress claim. Injuries are not always on the outside, so many people ignore them. Don’t. I recommend that all of my clients get counseling for at least a couple visits to make sure the physical injuries didn’t cause PTSD or leave them with any other deep rooted issues.
Scarring and a loss of a limb are very traumatic injuries. As a result, these types of claims are worth substantially more due to the need for treatment in the future and effect on the person’s quality of life.
Length of Treatment.
Some insurance companies use programs like Colossus to value cases. A big factor in valuing claims is the length of treatment. The first key hurdle is getting past the 90-day mark. Once you’ve hit this mark, then your value jumps quite a bit. But be careful because overdoing it will cost you big time. Going longer than about 14 weeks can cause your case value to decrease.
Another part of this is the perceived value based upon your length of treatment. Obviously, juries are going to think you were more severely injured if you treat for a longer amount of time.
Your Job Status and Income Prior to the Injury.
It’s sad but true. If you had a good job and high income, juries value your claim higher than if you didn’t have a job. Part of this is bias, but part of it has to do with lost wages and loss of earning capacity, discussed below.
Whether You Have Health Insurance.
Tort reform and changes in case law in Missouri have dramatically changed how much you can recover if you have health insurance. At trial, all the jury gets to see is the amount you owe for your medical bills. If your health insurance didn’t pay for your bills, then the jury gets to see the full amount. For example, assume your ER visit was $10,000. If you had health insurance pay for your bills, the jury sees that you went to the ER and that you owe nothing. If you didn’t have health insurance pay your bill, however, then the jury gets to see that you went to the ER and that you owe $10,000. That’s $0 vs $10,000!
What may seem like a small thing could mean the difference in you getting $0 at trial and you getting $100,000. This is why handling your medical bills the right way is crucial.
Lost wages means wages that you missed out on because you couldn’t work due to your injuries or because you had to get treatment. This can also include lost business if you are self employed. Proving lost business is extremely difficult to prove, so keeping proper records is key.
Loss of Earning Capacity.
This means losing the ability to earn a living, either temporarily or permanently. This also includes not being able to make as much money as before. Proving this part of a claim usually requires an economist, which usually costs a minimum of $5,000, so your lost of earning capacity claim needs to be substantial to pursue this type of claim.
Where you pursue your claim matters. It’s true that cases in the City of St. Louis are worth more than in St. Louis County. And cases in St. Louis County are worth more than in St. Charles County and Boone County. This is because of the differences in the jury pools, political environments, and exposure to injury cases. Knowing this allows you to do a better job of valuing your case.