One of the most common questions asked when someone has a personal injury case is “When might I expect to receive my settlement?” Unfortunately, the answer to that question depends on a considerable number of factors and—although it sounds cliché—every case is different. This article will attempt to answer the question in its most general sense and at least provide information regarding the different issues that affect the timing of a settlement.
As the name implies, personal injury cases always involve some sort of physical or mental injury. Consequently, the first and most important factor involved in the timing of a settlement is making sure that the injury is treated appropriately and that the injured person, the attorney, and the medical professionals all have a concrete grasp on what the injury or injuries are, how long treatment will last, and what the future treatment recommendations will be.
Medical Care & Treatment
Part of determining the value of any case is establishing exactly what the injury is, what type of medical care and treatment will be required, and what the cost of that treatment will be. Often, the answer to those questions will be impossible to determine for many months and, in some cases, even years. As a general rule, a complete valuation of the injury portion of a case cannot be made until a person has completed medical care and treatment.
For example, if a person is involved in an automobile accident and suffers what might be referred to as a typical “whiplash” or “soft tissue” type injury, medical treatment will usually involve an emergency room visit, physical or chiropractic therapy, and a few visits with a medical doctor. All cases and injuries are different but, with an uncomplicated injury, this treatment may last in the neighborhood of three to five months. Accordingly, the attorney handling the case will not be able to determine the value of the injury portion of the case until medical care is completed.
It is categorically impossible to look at a person’s initial injury, physical complaints, and even diagnoses and physical examination findings and try and project into the future what the value of that portion of the case will be. Doing so is fraught with danger. Many persons will present at the beginning of a case with symptoms consistent with a relatively minor or moderate soft tissue type injury that simply does not improve as expected. The physician then may order an MRI and that diagnostic study may reveal a significant disk herniation that requires surgical intervention. In that scenario, the case may go from having a relatively modest value that could resolve in four months to a case with a substantial value that may involve medical care and treatment that may last years. If an attempt to value that case was made prior to the MRI, the difference could be in the hundreds of thousands of dollars.
Future Medical Care & Treatment
Occasionally, a person will need medical care and treatment for years and, in some serious injury cases, for the rest of their lives. It would be impossible in a third-party personal injury case to simply delay settlement for that reason. Thus, future medical care and treatment is a compensable element of damages and the attorney handling the case must establish within “a degree of medical probability” what that future treatment holds. The determination of what future treatment is needed can only be made by the appropriate medical care professionals. In order to be compensated for this type of damage, a physician must provide an opinion as to what the type of treatment will be required, and an expert must also testify as to what the cost of that treatment will be.
In order for a physician to render these types of opinions, treatment must have reached a point where it is reasonable to make these determinations. Appropriate diagnostic studies must have been made and enough time transpired to do so. Thus, it is impossible (and would lack credibility) for a physician to opine one month into treatment that a patient will need an additional three months of physical therapy, a number of diagnostic studies, and a number of additional medical appointments.
In short, the valuation of the injury portion of these types of claims can take time and patience is always rewarded.
Liability or Fault
Another impediment to a quick resolution of a case is when the defense disputes liability. This simply means that the insurance company or defense attorney claims that it is not the defendant’s fault or that the fault is split between the two parties. In this scenario, settlements typically take longer.
For example, in a simple rear-end automobile accident that involves soft tissue type injuries with five months of medical care and treatment, there is a substantial likelihood that when treatment has ended and a demand for settlement has been made, negotiations will be fruitful and the case resolved in a reasonable time period. However, if it is not a rear-end automobile accident but a red light-green light dispute, the case may actually need to be filed in court, depositions of parties and witnesses must take place, and expert auto reconstruction experts and bio-mechanical experts will be retained. In these scenarios, one case may be resolved in six months and the other case may not be resolved for more than a year.
As might be expected, the two sides of these types of cases may simply disagree on valuation. Even after appropriate medical care and treatment, evaluation of liability and mediation and settlement conferences, the two sides may just not be able to agree on a settlement number. In these types of cases, the only solution is to proceed to a jury trial. Not only will this dramatically increase the time it takes to resolve a case but some of the parties to the lawsuit control is ceded to the court. All sides could be ready to go to trial but there simply may not be an available courtroom.
Knowing When a Case Will End is Up in the Air
Although every injured person would like to resolve their case as quickly as possible, trying to rush a settlement could result in a serious under evaluation of the case and this is never advisable. Once the signatures are placed on a settlement agreement or release, the right to proceed is forever waived. If a person settles a case and one week later a physician tells them they need surgery for injuries sustained in the incident, it does not matter. The case has already been resolved and it cannot be re-opened. Thus, patience is always rewarded.