Ep 75: Pre-Litigation Timelines and Expectations for Catastrophic Cases

Welcome to the Personal Injury Lawyer Podcast. I'm Clark speaks. This is the anatomy of a personal injury case today. Our guest is Audra Dunlap. She is our pre litigation managing attorney at speaks law firm. We are thrilled to have you. Thank you for being here. Thanks

for having me.

You're welcome, Audra, when we talk about pre litigation, pre lit. What does that mean? Or what is, what does litigation mean?

Litigation is going to be when your claim goes into the court system,

and what's the the event that would begin that process,

filing of a complaint is going to put your file into the court system,

okay? And so that complaint, it has to be done within a certain period of time, the statute of limitations. And sometimes the statute of limitations varies from case to case, but, but what you're saying is that litigation starts the moment that case is filed. That's right, okay, so when we talk about pre litigation, then what is that

pre litigation is going to be anything leading up to the filing of suit or filing of the complaint within the court system.

And can you give me an example of some of the things that might happen in pre litigation?

Sure. So pre litigation, we like to think about as stages. Your claim is going to go through multiple stages, primarily through our intake department and then into case management, and then over to negotiators or pre litigation attorneys to see if we can resolve the claim pre suit now

in a in a million or a multi million dollar case, in a catastrophic case that this process is more involved. Is that fair? Absolutely. And so, so I would, I'd like to talk to you about some of the different stages that are involved in these in these complex cases and these exceptional cases and cases that involve millions of dollars, because we people here see on TV, or they're reading the paper or whatever, that case settles for $20 million and I'm sure they wonder, what makes one case worth $20,000 and another case worth $20 million can you give us an idea of what the difference is?

Yeah. I mean, I think that there are a lot of differences between the two. I think the biggest, the biggest difference is going to be the significance of the injuries, the amount of the treatment, if there's future medical treatment that's going to be required, are there lost wages involved? Loss of household services? Are there impairment ratings? There are a lot of moving factors that go in to claim value, and a lot of that depends on, you know, the injuries, diagnoses, the treatment. You're going to have some folks who are going to treat for a few months, and they are, fortunately, going to get back to their pre accident condition, and you're going to have other folks who are going to treat for the rest of their lives.

So when people are listening to this, we don't want them to think, if you have a sprained ankle, or if you have you know a mild whiplash, that you're going to get millions and millions of dollars. That's just not true, not true. That's fair and but, but some people are much more seriously hurt, and they have lifelong, permanent injuries, and so part of our process is to make sure that we have adequately told the story of these injuries and how they affect our clients and their families and their lives, and we want them to help them recover physically, financially and emotionally. And in doing that, I'd like to talk to you about the stages of a more everyday garden variety of an injury case. Can you talk to me about the timeline of like a person on Independence Boulevard in Charlotte or on Market Street in Wilmington might get rear ended. They have whiplash their back and their neck hurt. They need medical care. Can you talk to me about the timeline for lots of those kinds of cases? Sure. So

when the client contacts us, we're going to have our intake department get they're going to do some investigation with respect to documentation accident reports, getting certain documentation from the client that we need for our case managers to set up the file send out letters of representation to the insurance company. That's a very small, you know, sort of view of intake and what intake does, but as just a general summary, then intake is going to move that claim over to case management. Our case managers are going to follow the client with respect to their treatment. A lot of our clients don't have health insurance. They don't have the ability to just go to a medical provider, so we can help them with respect to getting the treatment that they need. But with respect to soft tissue cases, you're generally looking at treatment timelines that are going to span three to six months, maybe some. Times a little bit longer, depending on if they have follow up visits with primary care provider or any follow up imaging to ensure that that issues have resolved. But once they have finished their treatment, then we're going to collect the information. We're going to get the medical records, we're going to get the billing we're going to get any lost wage information, any additional information that would have, you know, resulted in any loss for the client, and we're going to put that into a comprehensive demand package that's going to go out to the insurance company. Once the insurance company gets the demand package, we typically tell clients 30 to 60 days for that adjuster to reach back out to us. So general timeline, I would say, nine months to 12 months, you know, depending heavily, depending on the client's treatment and our ability to get the medical records from the providers. How

much of that time are they actually waiting on us to do our job, versus waiting on the insurance company, or waiting or treating or those types of things.

I would say that we are very proactive at all phases of the claims process. So if, if we are waiting for a certain step to take place, it's because we've sent out the record requests, we've sent out the authorizations. We're waiting for the provider to respond. And a lot of times, especially these bigger hospitals, in the bigger facilities, you know, they are higher volume, they've resourced out these types of requests to third party companies. And so we get, you know, anywhere from 60 to 90 days in terms of a turnaround for requests for records and billing. Adjusters can can be the same. You know, it depends on the insurance company. Some are going to be more responsive than others, and some adjusters are going to be more responsive than others, but typically, we are proactive in getting the information where it needs to be to get that claim to the next step of the process. But there are times when we have to receive the information back from providers, insurance carriers and things like that for the claim to progress. So I would say majority of the time we are waiting for another party to fulfill, you know, the request that we've sent out in order to process the claim.

Okay? So you described the normal personal injury case, most personal injury cases where somebody's rear ended or hit at a stop sign or at a stoplight or whatever. And they'll go and they'll receive care, either orthopedic or physical therapy or maybe chiropractic, and they get that treatment for, you know, two or three months and and three to six months. Why do we have to wait till till the end of treatment in order to try to negotiate a settlement or try to work with the insurance company to resolve a case?

We want to make sure that they get the treatment that they need to get back to their pre accident condition. If that's a possibility, and a lot of times in the soft tissue claims that we're talking about right now, it is just a matter of getting the treatment that they need to get back to the pre accident condition. So you get one opportunity to resolve your claim with the injuries that we present to to the insurance company. And so if we prematurely send your demand to the insurance company and it's not inclusive of all of your treatment, or it's not inclusive of all of your injury, then I don't know that that represents a fair settlement, and we want to make sure that we are advocating for the client. They're getting the treatment that they need. We're getting the best value for the client with the one opportunity that they have to resolve the claim. Okay,

so you're saying that these the garden variety personal injury case is going to take somewhere in the nine to 12 month range. So, and I think I guess then the difference between a nine month claim and a 12 month claim is probably the magnitude and the degree of entry. Is that fair? That's fair. Okay, now for catastrophic case, let me ask you, before we go into catastrophic cases, what percentage of those cases go into litigation,

maybe 10% okay?

Now that doesn't necessarily mean they go all the way to jury verdict. That just means they go to the point at which you said litigation is the point at which a complaint is filed and it starts the litigation process. Is that right? Okay, now let's talk about catastrophic cases and how they're different. What percentage of catastrophic cases do you feel like goes goes into goes into litigation? For example, we talked with some other people that are in on our team the litigation people in. The idea was that almost all catastrophic cases go into litigation before an insurance company is going to pay somebody millions of dollars for their entries, they want to be able to go through the litigation process to have a much better feel and understanding of the evidence and the witnesses and the legal theories and the lawyers. Has that been your experience? I

would agree with that

two things. Number one, the timeline. Can you tell me about the timeline in a catastrophic case, the

timeline, I think, is going to be more significant than your regular claim, because a lot of times in these catastrophic cases, your treatment is going to be ongoing for the rest of your life, and so we're trying to do our best at conveying that to the insurance carrier by getting as much information as we can with respect to your treatment. A lot of times that means getting a life care plan. And so you may have to have certain procedures in order to do that, to get impairment ratings and things of that nature, you oftentimes have to be at what they say is maximum medical improvement,

and so that, sorry, what's Can you define that for us? Please, maximum

medical improvement. So you've just reached a point in your treatment where you're you've plateaued. There are no other options for you. That's my understanding of of maximum medical improvement. And that's, that's at what point they would assign an impairment rating.

Okay, so you said for for ordinary cases, we want people to be finished treating so that we can get full value. And then for these kinds of cases, these catastrophic cases, people are never going to be, potentially never going to be finished treating. They're always going to be receiving some kind of medical care. It's an ongoing process. So how can you then resolve those cases for full value if they're never going to be fitting to finish treaty?

So that's where future medical expenses come into play, Life Care plans, economists for future lost wages, we can cost all of those things out based on the past treatment and the recommendations of the physicians, or your prior employment history and earnings history, tax returns and things of that nature. So on all of the catastrophic claims that I've ever worked on, we have always utilized those resources. Can

we break those up into two different parts? He said, one of them was economic damages. And who, who would be an expert that we would use for, what qualifications would an expert that we would use for catastrophic cases and to assess the economic damages? What is it? What is their what do they do? And what does that person do? Generally,

generally, I think that that person is an economist. They have to be able to use specific mathematical formulas to cost out the loss. They have to discount it to present value. They have to be an expert in their field. A lot of times this person is going to be in the educational realm. They're going to be a professor, you know, they're, they're going to have, you know, a history where they have done this type of work before, maybe they've testified before. But generally, it's going to be someone who who has a financial background, an economist background, and

we can't just make these numbers up. These numbers have to be, you mentioned earlier, they're going to be looking at past wage information. They're going to be looking at, you know, for tax returns they're going to be looking at, and they're so they're going to be doing that to try to quantify lost income. But you mentioned household services. Can you explain that to me please? Yeah,

so they're going to be looking at a lot of things. They're going to be looking at your tax returns. They're going to be looking at whether or not you have any impairment ratings. Are you able to go back to work that would be a mitigator, or have they put you at sedentary work when you did a very active labor intensive job previously. But with respect to household services, think about things that you do day to day, your activities of daily living, with respect to yard work, you know, even caring for your children, fixing meals, cleaning your home, cleaning your gutters. You know, just generally, doing the things that you would typically do, to take care of your home, take care of your family,

maybe bathe in yourself. You know, those kinds of things, right?

So if you have to have a nurse on staff to do those things for you, to help you bathe, to help you dress, to get you in and out of bed, to fix your food, to feed you, to change out your bed pans or whatever dressings you may have, someone who cuts your lawn weeds, you know around your home, takes your trash out. Those are all things that are going to be, you know valuable to you, you're going to have to pay someone to do these things that you did before, that you can't do anymore. You.

Welcome to the Personal Injury Lawyer Podcast. I'm Clark speaks. This is the anatomy of a personal injury case today. Our guest is Audra Dunlap. She is our pre litigation managing attorney at speaks law firm. We are thrilled to have you. Thank you for being here. Thanks

for having me.

You're welcome, Audra, when we talk about pre litigation, pre lit. What does that mean? Or what is, what does litigation mean?

Litigation is going to be when your claim goes into the court system,

and what's the the event that would begin that process,

filing of a complaint is going to put your file into the court system,

okay? And so that complaint, it has to be done within a certain period of time, the statute of limitations. And sometimes the statute of limitations varies from case to case, but, but what you're saying is that litigation starts the moment that case is filed. That's right, okay, so when we talk about pre litigation, then what is that

pre litigation is going to be anything leading up to the filing of suit or filing of the complaint within the court system.

And can you give me an example of some of the things that might happen in pre litigation?

Sure. So pre litigation, we like to think about as stages. Your claim is going to go through multiple stages, primarily through our intake department and then into case management, and then over to negotiators or pre litigation attorneys to see if we can resolve the claim pre suit now

in a in a million or a multi million dollar case, in a catastrophic case that this process is more involved. Is that fair? Absolutely. And so, so I would, I'd like to talk to you about some of the different stages that are involved in these in these complex cases and these exceptional cases and cases that involve millions of dollars, because we people here see on TV, or they're reading the paper or whatever, that case settles for $20 million and I'm sure they wonder, what makes one case worth $20,000 and another case worth $20 million can you give us an idea of what the difference is?

Yeah. I mean, I think that there are a lot of differences between the two. I think the biggest, the biggest difference is going to be the significance of the injuries, the amount of the treatment, if there's future medical treatment that's going to be required, are there lost wages involved? Loss of household services? Are there impairment ratings? There are a lot of moving factors that go in to claim value, and a lot of that depends on, you know, the injuries, diagnoses, the treatment. You're going to have some folks who are going to treat for a few months, and they are, fortunately, going to get back to their pre accident condition, and you're going to have other folks who are going to treat for the rest of their lives.

So when people are listening to this, we don't want them to think, if you have a sprained ankle, or if you have you know a mild whiplash, that you're going to get millions and millions of dollars. That's just not true, not true. That's fair and but, but some people are much more seriously hurt, and they have lifelong, permanent injuries, and so part of our process is to make sure that we have adequately told the story of these injuries and how they affect our clients and their families and their lives, and we want them to help them recover physically, financially and emotionally. And in doing that, I'd like to talk to you about the stages of a more everyday garden variety of an injury case. Can you talk to me about the timeline of like a person on Independence Boulevard in Charlotte or on Market Street in Wilmington might get rear ended. They have whiplash their back and their neck hurt. They need medical care. Can you talk to me about the timeline for lots of those kinds of cases? Sure. So

when the client contacts us, we're going to have our intake department get they're going to do some investigation with respect to documentation accident reports, getting certain documentation from the client that we need for our case managers to set up the file send out letters of representation to the insurance company. That's a very small, you know, sort of view of intake and what intake does, but as just a general summary, then intake is going to move that claim over to case management. Our case managers are going to follow the client with respect to their treatment. A lot of our clients don't have health insurance. They don't have the ability to just go to a medical provider, so we can help them with respect to getting the treatment that they need. But with respect to soft tissue cases, you're generally looking at treatment timelines that are going to span three to six months, maybe some. Times a little bit longer, depending on if they have follow up visits with primary care provider or any follow up imaging to ensure that that issues have resolved. But once they have finished their treatment, then we're going to collect the information. We're going to get the medical records, we're going to get the billing we're going to get any lost wage information, any additional information that would have, you know, resulted in any loss for the client, and we're going to put that into a comprehensive demand package that's going to go out to the insurance company. Once the insurance company gets the demand package, we typically tell clients 30 to 60 days for that adjuster to reach back out to us. So general timeline, I would say, nine months to 12 months, you know, depending heavily, depending on the client's treatment and our ability to get the medical records from the providers. How

much of that time are they actually waiting on us to do our job, versus waiting on the insurance company, or waiting or treating or those types of things.

I would say that we are very proactive at all phases of the claims process. So if, if we are waiting for a certain step to take place, it's because we've sent out the record requests, we've sent out the authorizations. We're waiting for the provider to respond. And a lot of times, especially these bigger hospitals, in the bigger facilities, you know, they are higher volume, they've resourced out these types of requests to third party companies. And so we get, you know, anywhere from 60 to 90 days in terms of a turnaround for requests for records and billing. Adjusters can can be the same. You know, it depends on the insurance company. Some are going to be more responsive than others, and some adjusters are going to be more responsive than others, but typically, we are proactive in getting the information where it needs to be to get that claim to the next step of the process. But there are times when we have to receive the information back from providers, insurance carriers and things like that for the claim to progress. So I would say majority of the time we are waiting for another party to fulfill, you know, the request that we've sent out in order to process the claim.

Okay? So you described the normal personal injury case, most personal injury cases where somebody's rear ended or hit at a stop sign or at a stoplight or whatever. And they'll go and they'll receive care, either orthopedic or physical therapy or maybe chiropractic, and they get that treatment for, you know, two or three months and and three to six months. Why do we have to wait till till the end of treatment in order to try to negotiate a settlement or try to work with the insurance company to resolve a case?

We want to make sure that they get the treatment that they need to get back to their pre accident condition. If that's a possibility, and a lot of times in the soft tissue claims that we're talking about right now, it is just a matter of getting the treatment that they need to get back to the pre accident condition. So you get one opportunity to resolve your claim with the injuries that we present to to the insurance company. And so if we prematurely send your demand to the insurance company and it's not inclusive of all of your treatment, or it's not inclusive of all of your injury, then I don't know that that represents a fair settlement, and we want to make sure that we are advocating for the client. They're getting the treatment that they need. We're getting the best value for the client with the one opportunity that they have to resolve the claim. Okay,

so you're saying that these the garden variety personal injury case is going to take somewhere in the nine to 12 month range. So, and I think I guess then the difference between a nine month claim and a 12 month claim is probably the magnitude and the degree of entry. Is that fair? That's fair. Okay, now for catastrophic case, let me ask you, before we go into catastrophic cases, what percentage of those cases go into litigation,

maybe 10% okay?

Now that doesn't necessarily mean they go all the way to jury verdict. That just means they go to the point at which you said litigation is the point at which a complaint is filed and it starts the litigation process. Is that right? Okay, now let's talk about catastrophic cases and how they're different. What percentage of catastrophic cases do you feel like goes goes into goes into litigation? For example, we talked with some other people that are in on our team the litigation people in. The idea was that almost all catastrophic cases go into litigation before an insurance company is going to pay somebody millions of dollars for their entries, they want to be able to go through the litigation process to have a much better feel and understanding of the evidence and the witnesses and the legal theories and the lawyers. Has that been your experience? I

would agree with that

two things. Number one, the timeline. Can you tell me about the timeline in a catastrophic case, the

timeline, I think, is going to be more significant than your regular claim, because a lot of times in these catastrophic cases, your treatment is going to be ongoing for the rest of your life, and so we're trying to do our best at conveying that to the insurance carrier by getting as much information as we can with respect to your treatment. A lot of times that means getting a life care plan. And so you may have to have certain procedures in order to do that, to get impairment ratings and things of that nature, you oftentimes have to be at what they say is maximum medical improvement,

and so that, sorry, what's Can you define that for us? Please, maximum

medical improvement. So you've just reached a point in your treatment where you're you've plateaued. There are no other options for you. That's my understanding of of maximum medical improvement. And that's, that's at what point they would assign an impairment rating.

Okay, so you said for for ordinary cases, we want people to be finished treating so that we can get full value. And then for these kinds of cases, these catastrophic cases, people are never going to be, potentially never going to be finished treating. They're always going to be receiving some kind of medical care. It's an ongoing process. So how can you then resolve those cases for full value if they're never going to be fitting to finish treaty?

So that's where future medical expenses come into play, Life Care plans, economists for future lost wages, we can cost all of those things out based on the past treatment and the recommendations of the physicians, or your prior employment history and earnings history, tax returns and things of that nature. So on all of the catastrophic claims that I've ever worked on, we have always utilized those resources. Can

we break those up into two different parts? He said, one of them was economic damages. And who, who would be an expert that we would use for, what qualifications would an expert that we would use for catastrophic cases and to assess the economic damages? What is it? What is their what do they do? And what does that person do? Generally,

generally, I think that that person is an economist. They have to be able to use specific mathematical formulas to cost out the loss. They have to discount it to present value. They have to be an expert in their field. A lot of times this person is going to be in the educational realm. They're going to be a professor, you know, they're, they're going to have, you know, a history where they have done this type of work before, maybe they've testified before. But generally, it's going to be someone who who has a financial background, an economist background, and

we can't just make these numbers up. These numbers have to be, you mentioned earlier, they're going to be looking at past wage information. They're going to be looking at, you know, for tax returns they're going to be looking at, and they're so they're going to be doing that to try to quantify lost income. But you mentioned household services. Can you explain that to me please? Yeah,

so they're going to be looking at a lot of things. They're going to be looking at your tax returns. They're going to be looking at whether or not you have any impairment ratings. Are you able to go back to work that would be a mitigator, or have they put you at sedentary work when you did a very active labor intensive job previously. But with respect to household services, think about things that you do day to day, your activities of daily living, with respect to yard work, you know, even caring for your children, fixing meals, cleaning your home, cleaning your gutters. You know, just generally, doing the things that you would typically do, to take care of your home, take care of your family,

maybe bathe in yourself. You know, those kinds of things, right?

So if you have to have a nurse on staff to do those things for you, to help you bathe, to help you dress, to get you in and out of bed, to fix your food, to feed you, to change out your bed pans or whatever dressings you may have, someone who cuts your lawn weeds, you know around your home, takes your trash out. Those are all things that are going to be, you know valuable to you, you're going to have to pay someone to do these things that you did before, that you can't do anymore. You.