Celebrating 10 years! 2007-2017

PI - demand letters

I am working on a PI case for a family friend and don't real cheapbrass05/16/17
I have done PI for 20 years. What state are you in? A lot wi elphaba1205/19/17
What are the limits and who is the insurance company? So mnjd05/16/17
Too many factors go into making a demand to give you a solid trickydick05/16/17
From what I've seen in WC cases, it seems common to ask doub qdllc05/16/17
Maybe someone has had a different experience, but don't expe pauperesq05/16/17
Ask for something higher than 2x/3x your medical to start. W isthisit05/16/17
It really depends. In a tough venue like the Bronx (NY), ask notiers05/16/17
Demand the policy and go from there. parlance05/16/17
That can stop a negotiation dead in its tracks if the policy elphaba1205/19/17
Can your client show a documented history of pain and effect guyingorillasuit05/17/17
Okay here are the additional details: Client was at a natio cheapbrass05/17/17
I would demand 150K since it is a big company. State that yo mnjd05/17/17
bumping this thread for any additional input? Should i file cheapbrass05/19/17
Only file a complaint if you are fully prepared - which you ruralattorney05/19/17
Absolutely not. This case is a lost opportunity. The righ trickydick05/19/17
I have to echo what everyone else has said here -- another f lolasaurusrex05/20/17
I think trickydick's numbers sound about right. Given Medic jeffm05/20/17
-Demand $70k. In the demand letter, spell out the facts, the tcpaul05/20/17
I agree with tcpaul's pre-filing negotiating advice. An open trickydick05/21/17
Tcpaul- I appreciate your advise and will be following it. cheapbrass05/21/17
I'll send the discovery this week. For what it's worth, I th tcpaul05/21/17

cheapbrass (May 16, 2017 - 2:30 pm)

I am working on a PI case for a family friend and don't really have experience in PI cases. Plan to just settle early on (family friend understands my lack of experience in this field and is okay with settling). I am getting ready to send out my demand letter. There is about $10k in medical bills (liability seems easy as there is video and Defendant pretty much admitted liability). I had read that cases typically settle for 2x-3x medical bills. Should I put in a demand for $30k in my demand letter or should i leave it open ended and let the Defendant/Insurance company open up negotiations. any help is appreciated.

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elphaba12 (May 19, 2017 - 11:41 pm)

I have done PI for 20 years. What state are you in? A lot will depend on whether or not you are in a PIP state. 2-3x the meds is no longer the standard

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mnjd (May 16, 2017 - 2:34 pm)

What are the limits and who is the insurance company?

Soft tissue? Any broken bones or surgery?

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trickydick (May 16, 2017 - 3:02 pm)

Too many factors go into making a demand to give you a solid answer. Injuries? Emergency room treatment? Reputation and speciality of the doctors that gave them treatment? Did they pay for treatment out of pocket or through insurance? Who if anyone has a lien on this case? What are the policy limits? Details of the accident? Carrier? Are you representing multiple claimants? Is the defendant an insolvent debtor or a company with deep pockets?

If it were me and this was your typical MIST case, I'd ask for policy limits or $50,000, wait for them to laugh and send an offer of $12,000 then try to walk it to something in the area of $30,000 and file a lawsuit if they wouldn't go above $20,000.

But whether or not that's a good idea or idiocy depends on the answers to all those questions above. With medicals in the range of $10,000, I've settled cases for between $15,000 and $75,000 depending on the underlying facts. At the end of the day, the value of a case is what you get for it, not what someone claims they could have gotten or what they say you should have gotten.

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qdllc (May 16, 2017 - 3:11 pm)

From what I've seen in WC cases, it seems common to ask double of what you realistically expect to settle for. In the back-and-forth, you get to the realistic number. I don't think any of the claimant attorneys realistically think they will get the inflated numbers they ask for at the beginning.

Start to close to your "bottom line" and negotiation tends to happen in painful baby steps.

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pauperesq (May 16, 2017 - 4:24 pm)

Maybe someone has had a different experience, but don't expect the insurance company to throw out the first number. They aren't going to set a floor without seeing your number first.

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isthisit (May 16, 2017 - 10:32 pm)

Ask for something higher than 2x/3x your medical to start. Without knowing more detail, 50-75K might not be out of the question but expect to settle for way less than that.

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notiers (May 16, 2017 - 11:22 pm)

It really depends. In a tough venue like the Bronx (NY), asking for 2 or 3 times medical bills is border line malpractice - you can and should get your client more.

Provide some detail:
Liability/fact scenario
Injury
Treatment
Venue
Insurer
Policy limits

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parlance (May 16, 2017 - 11:59 pm)

Demand the policy and go from there.

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elphaba12 (May 19, 2017 - 11:41 pm)

That can stop a negotiation dead in its tracks if the policy is really big and the case isn't worth that much

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guyingorillasuit (May 17, 2017 - 2:02 am)

Can your client show a documented history of pain and effect on his daily activities? If he has gone to a doctor for 6 months, showing a pain level of 6+; if he was unable to pick up his child during their time together; if he was unable to go on hikes with his beloved wife every Sunday as he has for the last 15 years; if he was forced to resign from his non-profit board because sitting down at the monthly meeting for over 3 hours at a time caused him great pain; if he was unable to sleep on his back because of the pain... then he can show the precise effects the injury had on him.

Also, if your client is an upstanding citizen, his case is worth much more than an ex-con with prior injuries and prior history as a plaintiff. Consider your plaintiff's character.

$10k is probably an ER bill plus a few chiro sessions. Pay an orthopedist to say the chiro was necessary, and that the injury would cause pain and suffering as described. You will then have a case worked up (at least partially) to make a decent demand.

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cheapbrass (May 17, 2017 - 12:16 pm)

Okay here are the additional details: Client was at a national warehouse type of retailer (deep pockets and probably lots of insurance), an employee accidentally dropped a moderately heavy box (think about 10-15 lbs) from the top of the shelves and it hit my client on the head/upper back. The client did not go to the ER in an ambulance, and drove himself there about 1-2 hours later after feeling a bit of neck pain/headache.

Client is in his late 80s and retired and already has a host of back/neck/shoulder problems. x-rays show nothing wrong from the injury. Doctor recommended Physical Therapy. My client was not a good patient, went to a few sessions then stopped going when it didn't seem to be working as it was too much of a hassle to have his wife drive him to the sessions. Client still suffers from neck/shoulder pain (more like exacerbated his pre-existing pain) and sometimes has headaches. Doctors can't pinpoint the cause of his headaches. Injury occurred about 6 months ago.
Medical bills were paid by Medicaid (which means they have a medicaid lien on any recovery). Is it too late for the client to go to an Ortho/chiro again?

Also would most of his recovery go to the Medicaid lien? Or is the Medicaid lien limited to the amounts medicaid paid out for this particular injury? Or can they reach back to include other amounts paid out (almost 13 years of Medicaid paid medical expenses for prior treatment).

Venue would be Cook County IL.

Any advice guys? Thanks

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mnjd (May 17, 2017 - 12:32 pm)

I would demand 150K since it is a big company. State that you will be pursuing a claim for negligence for the employee along with a claim for negligent hiring, training, retention and entrustment. They will laugh at your demand due to the non-treatment.

You can either go back and forth and take whatever you can get or get him back into a doctor. The adjuster at this point won’t care one way or the other if he gets in to the doctor as he already has a 6 month gap in treatment. I would only get him back in if your client is committed to treating and you plan on litigating the case.

Sadly, he shot himself in the foot with non-treatment. Not to mention the preexisting conditions.

Medicaid or Medicare will follow a formula and reduce accordingly so that you get paid and the client ends up with something.

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cheapbrass (May 19, 2017 - 11:55 am)

bumping this thread for any additional input? Should i file a complaint first without sending a demand letter so that they will take this more seriously? thanks

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ruralattorney (May 19, 2017 - 12:29 pm)

Only file a complaint if you are fully prepared - which you are not.

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trickydick (May 19, 2017 - 12:46 pm)

Absolutely not.

This case is a lost opportunity. The right attorney could have worked up the medical record to settle it for six figures or close to it. It would have taken compliance with medical treatment from the client, filing a lawsuit, and some protracted discovery, but there was a chance. Not saying I could have done it, but I know some attorneys who have managed similar feats.

The gap in treatment and the client's overall non-compliance with treatment are fatal to this case.

Ask for a million dollars, ask for half a million, ask for a hundred thousand. It won't matter. I'd be surprised if they even countered with $20,000. More realistically they'd put $12,000 to $15,000. I wouldn't put it beyond them to offer $5,000 or $8,000. If you file, they'll tear you apart in discovery and on the courthouse steps before trial the case would probably settle for only a few thousand more than whatever their initial offer is. Yeah, if you went to trial, you'd prevail on liability, but on this medical record the damages just aren't there.

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lolasaurusrex (May 20, 2017 - 1:46 am)

I have to echo what everyone else has said here -- another factor against you along with the pre-existing conditions is the age of the client. While very fact specific a PI claim with a client in her early 20's with permanent injuries is worth a whole lot more than than a client in his late 80's. You also can get an possible Medicare lien information from Medicare's website if you get a client authorization. This case however is nowhere near ready to suit, however even given the lack of compliance by your client I do think it has value with the facts as you presented them based on the negligence of the employee/ employer. I'm sure they didn't follow whatever policies were in place to even be in a situation where a box could fall on someone. I'm going to have to disagree with TrickyDick on his opinion that you would get torn apart in discovery. I think you would get some good stuff on them depending on how you went after discovery and if they were especially egregious they might be more amenable to negotiate with you. Of course you also have to consider how much time,effort, and money you want to expend on it. That all being said -- you aren't going to make a killing off of this and it really is unfortunate the client didn't follow through with treatment. See in the first instance if you can get an orthopod to evaluate him.

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jeffm (May 20, 2017 - 9:07 am)

I think trickydick's numbers sound about right. Given Medicaid's involvement in it, you have some work ahead of you even if you don't have to litigate. If you have to litigate, you will likely regret ever taking the case. Therefore, you are likely going to have to accept whatever they offer prior to suit.

I have had little experience with Medicaid liens. Had a co-associate go through hell trying to deal with them. In fact, it was so ridiculous that he just eventually blew it off and "escrowed" the Medicaid portion in the IOLTA account for a few years, until the time had passed for Medicaid to collect. Then, he released the money to the client.

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tcpaul (May 20, 2017 - 10:12 am)

-Demand $70k. In the demand letter, spell out the facts, their negligence, and exaggerate the f@&# out of your client's injuries and what a great case it is. Concede nothing and show no weakness. At the same time, be respectful.
-Make 1 or 2 moves back and forth to gauge whether it can settle close to $30k
-If you think you can get close to $30k, continue negotiations
-If you think the offer is going to stay below $20k, file suit. At the same time you file, pull your last offer and politely tell them, with great confidence, that they f@$#ed and should have settled.
-Serve INTs, RPDs, and RFAs. Don't waste time drafting them yourself. If you give me a dummy email account I will send you what you need.
-You will NOT get ripped apart in discovery. In fact, it should take you about 15 minutes to respond to their INTs. Don't agonize over every question. Basically, they just want medical expenses and provider names. You can get by with a lot of objections and "see Plaintiff's records produced hereins".
-Do NOT hire an ortho to relate treatment. I respect guyingorrilasuit but this is not a good idea. An ortho in Chicago will cost between $500 and $2,000 per hour just to talk to him. Instead, hold off on getting a doctor. If it doesn't settle and you need a doc, just use the guy's PCP to relate injury and treatment. The non-compliance hurts but is not fatal.
-Take depo of employee that dropped the box. Keep it short. Half an hour in and out.
-Consider the highly unusual move of taking your own client's depo depending on his health
-Request trial date and deadlines. See if you can get an expedited schedule given client's age
-Push, push, push. Don't wait for deadlines. If you're required to serve a preliminary list of witnesses and exhibits, do it now. You can also supplement later. Be aggressive.
-Don't engage defense in a lot of back and forth. In fact, I recommend that you don't even mention settlement in your discussions with defense counsel. Instead, just push for their discovery responses etc. and keep everything moving on track.
-Inevitably they will make an offer and it will almost certainly be higher than the pre-suit offers if you have followed the steps above.
-If you can get it settled for $30k, do it. If not, keep pushing ahead with litigation. Again, don't engage defense counsel a lot.
-Only take your client's doctor's depo if you are about a month or two out from trial and defendant's offer is below $25k. If the offer is at or above $25k, consider taking it.
-If the offer is below $25k, keep pushing. Show no hesitation. Show no fear. You own the f@$#ing courtroom. You were born for this.
-Take it to the courthouse steps. All you need is your client, your doctor depo, and one before and after witness. At this point, tell defense that if they would offer $30k, you would strongly encourage your client to take it but that you doubted anything else would get it done.
-Defense will give you their final offer. If it is at $25k or above, take it. If it is below, see if client will let you try it.


Any Medicare or Medicaid lien should only include related treatment. You may have to have them remove unrelated treatment. I think you can get $30k in this one. Good luck. If you want draft disco or have any questions, post an email.

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trickydick (May 21, 2017 - 4:13 pm)

I agree with tcpaul's pre-filing negotiating advice. An opening demand in the area of $75,000 sounds about right. It's higher than the case is worth under the circumstances, but not so high as to be a joke.

I recommend against filing a lawsuit for the reasons I posted above, but if you file, the strategy outlined by tcpaul is your best bet and his assessment of how it plays out sounds reasonable. If they offer anything in the range of $30,000, advise your client to take it. But your client needs to understand that even if you push the suit as aggressively as tcpaul is suggesting, they could still lowball you on the courthouse steps and push you to trial and after all is said and done, you may walk away with little more than what they were offering from the start. It doesn't sound like your client is interested in committing to a lawsuit, least of all if the potential pay off may be so low. Moreover, your lack of experience in this field also weighs against taking on a task like this.

I'd say don't even consider a lawsuit unless you have a doctor willing to apportion most of the plaintiff's injuries to this accident, whether it's his primary or an expert witness. Without even that much, I'm willing to bet the carrier would rather take their chances with a trial and pay one of their defense experts to lay out all the holes in the medical record for a jury.

If you do decide to file, brace yourself, because the sort of aggressive litigation contemplated above gets very nasty, very fast.

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cheapbrass (May 21, 2017 - 6:07 pm)

Tcpaul- I appreciate your advise and will be following it. It would be great if you could send me some samples. My email is oneredpen2@gmail.com

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tcpaul (May 21, 2017 - 10:48 pm)

I'll send the discovery this week. For what it's worth, I think the other posters made a lot of good suggestions as well. There's really no one way to do something like this. This is just a style that I found effective when I was defending these cases and that works for me now that I'm a plaintiff's attorney.

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