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CAR ACCIDENT SETTLEMENT WITH PRE-EXISTING CONDITION

Jun 7

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6/7/2014 10:09 AM  RssIcon

            If the claimant has a pre-existing condition in the same part of the body where the claimant claims to have been injured in the car wreck and has been receiving treatment for that pre-existing condition, the defendant’s insurance carrier is almost always going to deny any claim for injury damages.  If the claimant’s pre-existing condition is worsened by the accident, and the claimant incurs expense for medical treatment of the worsening, then the claimant’s treating doctors will have to provide proof that the pre-existing condition was aggravated or that a new injury was superimposed on the pre-existing condition, and document what treatment was necessitated by the new injury or exacerbation.

            In the recent settlement the claimant had a pre-existing cervical scoliosis, spinal stenosis and chronic neck pain, and had sought extensive treatment for that condition for years before the minimal impact rear end collision car accident in question occurred.  After the car accident, the claimant developed new symptoms and underwent a cervical fusion.  The defendant insurance company did not offer any settlement money and a lawsuit was filed.  A month before trial, the claimant’s surgeon gave a deposition and established that the new symptoms were caused by the car accident, and that none of the surgery would not have been necessary but for the car accident.

            After that deposition, the defendant insurance company paid it $100,000 policy limits and the claimant’s underinsured insurance carrier paid its $30,000 policy limits.  This was essentially a court house steps settlement.

            The most difficult part of concluding the case was negotiating with the entity that paid $62,350 of the cost of the spinal fusion.  That entity was an ERISA Self-Funded employee benefit plan.  That entity could not be forced to reduce its subrogation lien one penny.  However, through negotiation and reasoning, I was able to get the subrogation lien reduced 36% to $40,000.

            Cases such as this one are very difficult because if tried to a jury, a jury could reasonably conclude that the car accident did not cause the claimant’s problems.  Such a jury could conclude that all of the claimant’s suffering and impairment were independent of the car accident, and then award the claimant little or no money damages.

            In this case, it settled about 30 days before the date it was to go to trial.  The claimant’s surgeon very strongly testified in a video deposition that but for the car accident the claimant would not have incurred over $62,000 in medical expenses for the spinal fusion.

            The moral of the story is that unless the claimant’s attorney has a good successful track record of taking cases to trial, and shows he or she is ready to pick jury and go to trial, the defendant’s insurance company will never pay top settlement money.  Car accident victims should always hire a board certified personal injury lawyer.

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VERDICTS AND SETTLEMENTS in which Rockne W. Onstad was Lead Counsel or Co-Counsel

Gross Amount Client Recovery Attorney Fee Expenses Nature
$13,650,000 $8,055,000 $5,460,000 $135,000     Product Liability, Apache Helicopter Gear Box, Spinal Injuries (settlement)
$9,200,000 $6,320,064 $2,760,000 $119,358     Product Liability, Defective Aircraft Carburetor, Wrongful Death (settlement)
$6,800,000 $4,473,334 $2,266,666 $60,000     Premises Liability, Brain Injury, Water Park Slide (settlement)
$5,000,000 $3,662,224 $1,250,000 $87,775     Obstetrical negligence, cerebral palsy, Federal Tort Claim Act case (settlement)
$4,980,000 $2,437,000 $2,490,000 $53,000     Obstetrical Negligence, Fetal Asphyxia, Cerebral Palsy (settlement)
$4,300,000 $309,000 $138,000 $13,000     Pilot Error, Airplane Crash, Wrongful Death (jury verdict)
$3,850,000 $2,373,000 $1,425,000 $52,000     Labor & Delivery Negligence, Fetal Distress, Cerebral Palsy (settlement)
$3,500,000 $2,028,000 $1,400,000 $72,000     Product Liability, Design Defect, Spinal Cord Injury (settlement)
$3,235,000 $2,361,250 $808,750 $65,000     Brain Injury, Federal Tort Claim, FAA Negligence (verdict) affirmed on appeal
$3,000,000 $1,724,000 $1,200,000 $76,000     Neurosurgical Malpractice, Cauda Equina Syndrome (settlement)
$2,950,000 $1,731,000 $1,180,000 $39,000     Defective Design of Helicopter, Paralysis & Wrongful Death (settlement)
$2,900,000 $844,000 $694,000 $26,000     Auto Accident, Spinal Injury & Ankle Injury (jury verdict/settlement)
$2,800,000 $1,864,667 $924,333 $12,000     Premises Liability, Hotel Fire, Wrongful Death (settlement)
$2,500,000 $1,644,667 $833,333 $22,000     Product Liablity, Defective Farm Tractor, Arm Loss (settlement)
$2,300,000 $1,399,000 $960,000 $41,000     Anesthesiologist Negligence, Brain Injury (settlement)
$2,300,000 $1,091,000 $920,000 $59,000     Product Liability, All Terrain Vehicle, Spinal Injury (settlement)
$2,200,000 $1,321,000 $733,333 $44,000     Cerebral Palsy, Obstetrical Malpractice, Preeclampsia (settlement)
$2,200,000 $1,267,000 $880,000 $53,000     Construction Negligence & Insurance Bad Faith, Spinal Injury(settlement)
$2,200,000 $1,191,000 $880,000 $129,000     Product liability, subdural hematoma (settlement)
$2,183,796 $1,426,334 $557,666 $163,796     Hospital Labor Nurse Negligence, Fetal Distress, Cerebral Palsy (settlement)
$2,000,000 $1,303,334 $666,666 $30,000     Anesthesia Malpractice, Esophageal Intubation, Wrongful Death (settlement)
$2,000,000 $1,106,887 $800,000 $93,111     Radiologist Negligence, Brain Catheterization, Stroke (settlement)
$2,000,000 $976,484 $976,482 $47,034     Obstetrician Malpractice, Forceps Delivery, Cerebral Palsy (settlement)
$2,000,000 $972,331 $972,669 $55,000     Obstetrical Malpractice, IUGR, Cerebral Palsy (settlement)
$1,900,000 $905,000 $950,000 $45,000     Clinic Failure to Supervise Impaired Physician, 4 Injured (settlement)
$1,900,000 $73,000     Pilot Error, Helicopter Crash, Wrongful Death (jury verdict-no insurance coverage)
$1,860,000 $978,518 $645,000 $137,480     Neurosurgeon Negligence, Infection, Cauda Equina Syndrome (settlement)
$1,700,000 $1,130,730 $565,363 $3,907     Product Liability, Defective Design, Burns (settlement)
$1,500,000 $847,000 $600,000 $53,000     Defective Aircraft Component, Military Aircraft, Wrongful Death (settlement)
$1,425,000 $900,310 $457,571 $67,119     Intraoperative Spinal Cord Monitoring Negligence, Spinal Cord Injury (settlement)
$1,400,000 $848,221 $503,552 $51,227     Obstetrician Malpractice, Group B Strep Infection, Cerebral Palsy (settlement)
$1,400,000 $718,689 $560,000 $130,522     Neurosurgeon Negligence, Infection, Brain Injury (jury trial & settlement)
$1,400,000 $818,000 $560,000 $22,000     Auto Trucking Accident, Spinal Injury (settlement)
$1,350,000 $926,394 $370,835 $52,769     Wrongful death. Unnecessary hysterectomy (settlement)
$1,300,000 $718,689 $520,000 $26,000     Neonatal Nurse Negligence, Visual Impairment (settlement)
$1,300,000 $285,000 $250,000 $33,189     Emergency Room Negligence, Wrongful Death (jury verdict and settlement))
$1,237,000 $718,689 $400,000 $30,000     Cardiologist Negligence, Brain Injury (settlement)
$1,200,000 $659,879 $395,666 $144,455     Prolapsed umbilical cord, Labor Nurse Negligence (settlement)
$1,167,000 $594,086 $417,000 $72,513     Emergency Room Negligence, Heart Attack, Wrongful Death (settlement)
$1,150,000 $727,667 $383,333 $39,000     Obstetrician Negligence, Group B Strep, Cerebral Palsy (settlement)
$1,111,000 $594,933 $444,400 $71,623     Product Liability, Heart Stent, Heart Damage (settlement)
$1,100,000 $770,000 $440,000 $25,996     Radiologist Negligence, Failure to Diagnose Breast Cancer, Death (settlement)
$1,060,000 $532,715 $478,991 $48,810     Obstetrician Negligence, Breech Delivery, Cerebral Palsy (settlement)
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