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Depending on the State you live in there may be a
statute of limitations on how long you have to bring suit so don't delay.
I can only speak to my experience and what I knew to be true at the time
we filed suit here in Washington State (1992 - 1995) and everything I will say about the
suit is based on this knowledge.
I am not one to say you should bring suit on
frivolous matters that are of no consequence. I didn't sue the Doctor that
tried to remove a kidney stone and in so doing had me in the stirrups too
long which caused a blood clot that messed up my leg and caused me to lose
my business. I truly believe he did the best he could and that it was just
misfortune that things went the way they did. I'm not going to punish him
for doing his best even if that wasn't good enough. It may have crossed my
mind as I lay in bed in agony but I never contacted a Lawyer. Frivolous
lawsuits just drives up insurance
rates for the rest of us . BUT refer to what I said above. Any suspicion
should be investigated fully by competent professionals. If you have legal
recourse use it. This is your child your fighting for.
In our case we didn't contact a lawyer till Amber was
over a year old. We didn't have a clear diagnosis and there was just too
many unknowns till we did. Also we were unaware of the 3 year statute of
limitations. A good thing we talked with a lawyer before that had passed
or we would have been able to do nothing. Once we decided to seek out a
lawyer we saw three different ones. All were willing to investigate (We
pay expenses) and all said they thought we had a very good case. Now a bit
of advise. Some will investigate for free (Or so I've been told). They
will get the records from the Hospital or wherever and they will have them
gone over by competent professionals to ensure there is substantial
evidence that a lawsuit is in order. Most lawyers will, at the very least,
charge you to have this done even if they waive their fee. It could cost
hundreds if not thousands to have this done. So be prepared for sticker
shock and have a few bucks set aside for this. Here in Washington there
are organizations for low income (without assets) that will help you. I
will post these in the LINKS pages. But for the
rest of us be prepared to pay through the nose. We knew we had a case
before we went to a lawyer. We just knew based on things we overheard and
things that were and weren't done. The lawyer merely confirmed what we
already knew, at a price.
We decided to go with a lawyer based on several
factors none of which turned out to matter. One that you should be
concerned with is how many such cases have they had and how many have they
won or settled. This might give you an idea as to their competency but
keep this in mind. Most Hospitals or rather insurance companies as that is
really the ones who are going to pay will settle any case that they deem
to have merit. As part of the settlement most will place a gag order
in the settlement so you cannot name the Hospital and/or amount. When
looking at cases the lawyer claims to have won how many will he name the
Hospital in? If he won't name it, it never went to trial. It was settled
out of Court. Not necessarily a bad thing as going to Court will cost you
everything you have, if you lose. But if all the cases are settled is the
lawyer really all that good or is the insurance company just trying to
save the Hospital embarrassment and themselves a greater sum of money? And
is the lawyer just taking cases that are easy settlements? Something to think about.
Anyway you have your lawyer and the ball is picking
up speed. You are either being billed for costs or the lawyer is carrying
them, with interest. Either way the initial amounts don't add up to much.
Some copies of records, paying to have someone look at them, the initial
filing of the suit. All can be done for a thousand or less. Then things
stall as the games are played. In our case nothing much happened for close
to a year. Then we had to take Amber to a Neurologist in Seattle. The
lawyer saying that local Doctors are reluctant to do anything to other
local Doctors. Made sense. Then we had to take her to one in California.
Then the paperwork was sent to UCLA in California to specialists to
determine if the standard of care was adequate. Then the other side had us
take Amber to their doctors for assessment and on and on it went. We paid
the first 8 or 9 thousand dollars out of pocket, then just let the lawyer
carry the expenses at 12% interest as we needed our money to pay for
essential services for Amber and to live on.
Somewhere along the way the lawyer told us if this
went to Court we'd be looking at over $100,000.00 dollars in expenses as
we would have to pay people to fly in from California and elsewhere and
pay their expenses and up to $10,000.00 a day per person while they were
needed at the trial. And if the other side dragged things out it could go
much higher.
OK. I don't doubt this is true as we had already
incurred almost $30,000.00 in expenses and they just kept adding up. But I
also feel the lawyer was setting us up for a settlement. I think he was
giving us time to let that $100,000.00 + number sink in and let us think
about, could we afford it if we lost?
At $30,000.00 I already knew I was going to have to
take a second mortgage out on my home as to take one out on one of the
rentals would have cost me more in interest as a non-owner occupied place.
I wasn't sure I could make the payments. I was thinking I was going to
have to sell a rental or two just to pay the expenses and then where would
I be?
Anyway so another year drags on and we are getting
close to that three year thing and so we set a date for arbitration to see
what they have to offer. Why they couldn't do it close to home I have no
idea and why we had to go at all I have no idea as it could have all been
done in a conference call at the lawyers office. But off we went to Seattle
to some huge building with fancy offices and we all sat down and
introductions were made. The talk gradually got around to Amber and My
expectations and I said what I felt. That Amber had been harmed by incompetent
Hospital staff and that I felt she deserved recompense for her disabilities
that arose from her receiving less than what would be considered adequate
standards of care. It may not have been those exact words but close. I'd
read the reports and had talked with the lawyer and felt I needed them to
know I wasn't some dumb shit who hadn't a clue. So I talked the talk and
walked the walk, as it were, but inside the butterflies were eating me
alive.
They questioned the wife and I for a half hour or so
and then made an offer.
Now I need to give you a little lesson on Washington
State as regards lawsuits of this type. During the early 90's.
In Washington don't get all excited about winning a
hundred million dollar lawsuit. In fact don't even think you are going to
win the 10 million that woman who spilt hot coffee on her did. In
Washington there are no awards for damages above those necessary for the
care of the injured person for the remainder of their lives. That
"Care Assessment" is supposed to be made by a qualified independent
person who is familiar with associated costs. And the assessment is done
based on the 'current' knowledge we have of the 'current 'condition.
Nothing is added for things that may arise in the future and nothing is to
be subtracted if like say through therapy motor skills improve.
We had a person come into our home and assess
Amber's needs and then figure a cost sheet over 70 years. This person did
not and could not know the extent of the disabilities that may arise over
time as Amber was only 3 years old and many things have arisen over the
years that we never even considered. It wasn't till she was older and in
school that we knew how the stroke had affected her mental abilities and
though we could guess at her physical ones it wasn't till she was older
that they became more apparent. This cost analysis was not even close to
being what was needed, especially considering the rise in medical
care (20% a year according to the news) and housing (doubled in the last 3
years here where we live) probably triple or more since the suit. Who
knew? But her condition at the time and the associated costs were used as
a basis for settlement.
I suppose housing wasn't even considered as
they only concern themselves with what the personal needs are and how they
can be met. Our assessment looked at therapy till Amber was 18 and medical
devises like Orthotics (she was wearing a small one in her shoe at the
time, She now wears a much larger one going up to mid calf of the leg and
she needs to buy a size 7 shoe for the right foot and a size 11 shoe for
the left foot. I don't think this was in the accounting) and to some
degree devices to aide in daily living. A few associated costs like Amber
cannot cut the fingernails of her right hand cause the left hand doesn't
work so she will need to get manicures. And now with the Dystonia and
spasms and the need of a walker and possibly a wheelchair soon these costs
were never even considered. Neither was the rising cost of health insurance.
Suffice to say the
"Care assessment" was very low.
The offer was below this "Care
assessment".
We walked out and went home.
10 days later we got a call from the lawyer. Another
arbitration had been set up for the following week. The lawyer said he
didn't know what the offer would be (yea right) but as the other side had
asked for the meeting he felt confidant it would be higher.
Back to Seattle only this time we never saw the other
side. We were told they were in another room but they might as well have been
on the phone or on the moon or not even players, cause we never saw them.
The arbitrator would hustle between us and them with offer counter offer.
What concerned me was with every offer he seemed to be talking to us of
our responsibilities to our daughter and that in his opinion it would be a
great disservice for us not to hear the other sides position. Thing is the
other side wasn't there. I got the distinct impression, though he never
actually said it but that he wanted us to settle. Maybe it was just me but
that's the impression I got. Biased? Maybe. True? Probably. In either case
isn't he supposed to be impartial? I got the distinct impression that I
was being set up or manipulated.
In the room with us was our lawyer and his right hand
aide that went everywhere with him and another paralegal we had met and
another woman we had never seen before. She was introduced as an employee
of the law firm but I don't even recall her name. During the entire
proceeding which lasted a couple hours she never spoke a word except to
say, Hi. What she did do was take out a full size spiral binder and open
it to a blank page and writing along the full length, as if in portrait
mode on the printer, a six figure number with a $ sign in front. She just
methodically wrote the same number over and over again throughout the
meeting. By the end she had worn through several pieces of paper. I immediately
knew what the final offer would be and I knew I was being played by my own
lawyer.
After this revelation I barely kept track of what was
being said. It was all for show anyway. What I did was weigh that number
against what I knew.
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I knew that should we settle the lawyer was going
to get 35% right off the top.
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I knew that we had to pay the insurance company
back every penny they had spent from the birth onward. This is a
standard thing in insurance documents though they do not tell you.
Yes, if you sue and win an award they get second dibs on the money
right after the lawyer. To date that amount was a bit over $58,000.00.
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I knew I had to pay expenses out of what was left.
I had already paid close to $9,000.00 out of pocket but there was
another $37,000.00 on the books I needed to pay. (I think the final
total came in at just under $40,000.00) I couldn't do it without a
second mortgage, which I couldn't pay for so that left selling at
least 1 rental if not 2. If we lost at trial I'd be in big trouble but
it gets worse.
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I knew if we went to Court we would be looking at
another $100,000.00 on top of everything else if we lost.
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I knew that even if we were to win I would still be
looking at all these costs coming out of any award we received.
Including the $100,000.00. So being prudent I had to add at least
another $250,000.00 to the offer on the table if we went to court as
that is what would come out in the 35% to the lawyer and added costs
of a trial.
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I knew if the award was any larger the lawyer would
just get that much more. And after his stunt with the new lady and the
notepad I wanted to break his balls. I sure as hell didn't want him to
get any more money.
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I did some quick calculations in my head and knew
that if I settled for the amount that bitch was writing over and over
on that paper Amber would get just about what they had figured the
"Care assessment" to be. Far less than she deserved and far
less than she would need given inflation.
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It was only in the six figures and mediocre 6 at that. How was I going to justify a settlement that didn't even cover
the "Care assessment" that was estimated and low-balled at
that? But then again how was I going to survive if we lost in court?
My fledgling excavation business was not bringing in enough to survive
without the rentals.
Finally the offer came in. Right on with what the
bitch had been writing over and over since we sat down 2 hours earlier. The arbitrator said final offer from
the other side. Take it or leave it. I knew I was being played. I was in a
corner though. If I were rich I'd have said "No Way!" But I
wasn't rich. I turned to my lawyer and knowing his answer before even
asking the question I said. "If this was your child. Knowing what you
know about the case, and the odds of us winning or not. Would you take
this offer?"
He looked down as if in contemplation and then nodded
an affirmative without ever looking directly at me. ( I knew he was lying)
He then switched gears and said that if I took the offer on the table he
would only charge 33% If it went to trial he would charge the full
35%. He also said he would take 33% from what was owed the insurance
company so I would not have to pay the full amount out of our cut. If it
went to trial I would have to pay the full amount from our cut after he
took his 35%. Then he said it all hinged on us winning and even if we did
prevail and win there was no guarantee that we would receive as much as
what the offer was. It could be more but it could also be less. he
mentioned the associated costs of a trial ( The $100,000.00 +) and then he
reiterated that there was no guarantee we would prevail at trial, we could
lose.
You have to understand that here in Washington State there is no award for
damages above those deemed necessary to provide for the injured person. So
even if we won the Jury may say that the injury to Amber was not so great
and so this $ amount is all we think she will need for essential
services.
There is no award
for the hospitals staff screwing up. No multi-million dollar settlement no
mater how terrible was the care. No award for expenses that are incurred
either. Though I'm sure the jury would have taken this into account if we
won and tacked it on to the award. There was always the possibility they
wouldn't so what would we be left with. An award less than the current
offer and expenses to pay out of that award and the lawyers 35% plus the
insurance company and what would be left for Amber. NOTHING! that is what
would be left.
Only what
was thought needed for the care of the person for the rest of their life
would be awarded if we went to court. And though I thought it to be
considerably more than the offer; would the jury?
Well Amber
had difficulties and there would be needed care but she could function on
her own and though she was disabled she would most likely be able to get a
job although it may be at minimum wage. So what care assessment would the
jury look at. That provided by a supposed independent observer. Who did
not take into account 20% medical inflation or even the 3% annual
inflation rate and how could we know housing would double in 3 years and
nearly double again in the next ten. or that Amber would develop Dystonia
and eventually be in a wheelchair and in great pain. As Amber was not even
in Kindergarten we had little knowledge of her mental abilities and these
were not included either.
I had an offer
before me that was far less that that which I knew we needed to care for
Amber. But I also had a pregnant wife and we could ill afford to lose at
trial and then even if we won what would be the award of the jury?
I turned to the wife and asked what she thought. She
just shrugged and deferred to me to make the decision. I don't think she
was unaware of the gravity of the situation but I do think she hadn't
considered all the possibilities as I had. I think she felt as I did the
offer was low but I don't think, at the time, she had considered just what
we would be left with and how it was going to affect our lives if we lost.
I talked with her afterwards and found I was right. She thought the offer
too low and expected I would turn it down, but left to me the decision as
she knew I was ( How do I put this politely?) Well I was more apt than she
to consider all the possibilities. There lets hope that flies high enough.
I knew it wasn't right. I knew I'd been played like
some puppet on a string. But the thought of all that money I would have to
pay if we lost weighed heavy on my mind. Our standard of living would
suffer greatly and with another child on the way I just couldn't risk it.
I accepted the offer.
I've regretted it ever since.
The lawyer took care of the details. He paid out to
the insurance company and to his expenses after he took 33% off the top.
Amber got a lump sum for expenses and a structured settlement paid out
over 10 years. This is over now.
We received a lump sum to us to pay our personal
expenses and with that we got the bank account back to a nice nest egg and
what was left over we put towards the mortgage on our house. Not that we
got enough to pay it off.
On a personal note:
Our son was born some 6 months later. Luckily my
health problems did not begin till a couple years later. By then we'd
saved enough and together with the sale of a duplex we were able to pay the house off. Even if we lost everything else we
would have a roof over our heads. Unfortunately my father suffered a
stroke about that time and we moved him in with us. That meant 5 of us
living in a 2 bedroom house. We had to sell a another duplex to pay for a
new larger house we had built where another rental was. A mobile home that
we evicted the tenants out of and sold. We already owned the land so it
was the obvious and practical choice but we lost the income from that
rental while the new house was being built. The consolation being
when the house was done we were able to rent the old house. My
father had several more strokes and died 4 years after the 1st stroke. We
had used all the monies we received in the settlement and the sale of 2
duplexes to help pay for the
new house and care for my father. There's nothing of what we received
left. We eventually had to sell the last of our duplexes to pay off
outstanding debt. We are now down to 3 mobile homes and the old house we
used to live in as our sole income.
Back to the lawsuit.
We had to hire another lawyer to handle the setting
up of a guardianship over the money Amber received and it was placed in
blocked accounts, in like a trust till she turns 18. We have to have a
lawyer do the annual accounting to the courts this costs about $1700.00 a
year. We pay for this. We do not use any of her money to pay for anything
except her income tax.
According to the lawyer we could use her money for
her care but we are her parents and if she didn't have this money we would
still have to provide for our children anyway. So we do not ask the court
for any monies out of her trust. We pay all the bills as parents should.
There is not enough for her to live off of. Not even
close. She will still need to find work. Hopefully there will be enough
for her to buy a car, (Update; Due to her Dystonia and spasms I do not
think she will ever be able to drive) see her through college, pay whatever medical
expenses she has including health insurance, if she can get it, and put a
down payment on a home of her own when she gets out of college and settles
down. If she can do this the money will have been spent and she will have
to live off what she earns like everyone else. Hopefully she can get a
good job that pays well cause she will still have some special care
issues. And she will most likely have to pay for these out of what she
earns. The care assessment was way off the mark.
My advise: Beware of lawyers! Their only interest is
in making themselves rich. But they are a necessary evil and hire one if
you even think you have grounds for a suit.
A bit of a shift here. I recently had to hire a new lawyer to do the
annual accounting and I prefaced
our meeting by saying that I wasn't a huge fan of lawyers. He said
"If you don't like lawyers, why should I handle your case?" I replied
"Cause my money is just as green as the dumb ass who loves
lawyers." I didn't give a damn if he took the case or not. There are
a dozen more just like him in the phone book, and a couple dozen more
after that. But even after having said what I did, He took the case.
Though his fee was nearly $1800.00
It's all about the green.
If you live in Washington State don't expect a huge
settlement.
I hope my experiences have taught you what not to do.
And Lawyers
wonder why we consider them as less than slime!
Best of luck
Robert
P.S. Update Nov
2, 2008; Amber is having a really difficult time. Her spasms have gotten
to the point where we think she will soon be in a wheelchair full time.
She currently uses one at school. She is becoming more despondent and
depressed and nothing we or her psychologist says is doing any good. She
is talking more and more of killing herself and we just do not know what
to do. We have taken control of her meds so she cannot use them to
overdose but that seems a very small thing to do when there are so many
other ways to end ones life. She either shuts us out and stays to herself
in her room or she attaches herself to her mother and lays on her in
the evening or follows her about the house. I know the pain she suffers is
difficult and I know the depression is real and formidable.
Amber cannot deal with disappointment
and so we try to not promise anything and try to get others to do the same,
cause when those promises are not kept it just really sets off her spasms and depression.
She is so far down I do not think she can see any light at the end of the
tunnel. She is a wreck and I don't know if she has the ability to hold it
together till we find a way to control the spasms.
I sometimes wonder if
we had gotten more money in the lawsuit could we do anything to alleviate these
problems? Could we have her seen by really qualified specialists and get the
spasms under control? Could we take her places she would like to go to put a
smile back on her face? Could we afford some necessities that would make things
easier on Amber as well as ourselves? Could we afford some luxuries that would
brighten Ambers sprits? Would money make a difference? Or would we still be
facing these same problems?
They say "Money
can't buy happiness." But I do think it could buy better doctors and the
items we have to fight the insurance to cover and it would allow for more care
and more specialists and more things that would make Amber smile more often.
So do not settle for
what they say is enough. Fight for what you think should be enough. My opinion
and you can take it or leave it, but had I to do it all over again I would not
have settled. I would have fought for more even it it meant we wound up with
less.
I would suggest you read the page on this site called
" More Information
of CP provided by NINDS ". As it delves deeper into CP and its causes
and treatments than I do on this page.
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Spanaway, WA. 98387
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Or doing a simple link exchange and having your site appear on the ‘CP Family’ links page, if you or your child has CP or any disability. Your site does not have to be about any disability so long as you or your child has a disability.
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