The purpose of this blog is to give the client a basic understanding of the claim process and a basic understanding of the time parameter in which a case can either be settled or proceed through trial. Since the case can settle at any time during this process it is difficult for me to give the client a definitive answer when asked how long their case will take.
Clients often ask how long their case will take. My answer is “it depends”.
It first depends on the length of the client’s treatment. I do not want to make a demand for payment until I know the extent of my client’s injuries or the effects his/her injuries have on his/her life. The client’s treatment often requires him/her to attempt different types of treatment starting with the least invasive treatment – medications and physical therapy. If the client continues to have pain and/or objective findings indicating a more serious injury, the physician may order an MRI to determine the extent of his/her injuries. If the MRI reveals evidence of injury, the physician may refer the client to a pain management doctor or a specialist who deals with that type of injury. The pain management doctor may suggest additional medication or injections to reduce inflammation and/or reduce pain. The pain management doctor will require follow-up examinations to determine if treatment is beneficial. If it is ultimately decided that treatment is not working, the pain management physician may refer the client for a surgical consultation.
The surgeon will examine the client to see if he/she is a good candidate for surgery. If the client is a surgical candidate, the client will decide whether he/she wants to undergo surgery. Most surgeries are “elective” meaning the client decides whether his/her pain and/or physical symptoms are so severe that he/she wants to undergo surgery. If the patient decides to undergo surgery, there will be a recovery period generally followed by a period of physical therapy. The length of time to undergo the above treatment may take 6 – 8 months.
At some point the client will reach a point where his/her condition cannot be improved any further or a treatment plateau has been reached. This point is known as a point of “maximum medical improvement” (MMI). At this point the treatment physician will issue a report detailing the client’s injuries / treatment and provide an opinion whether the client sustained a “permanent injury” as a result of this accident.
After the client reaches MMI a demand letter will be sent to the at-fault party’s insurance adjuster. The demand letter will include the client’s theory of liability, medical records, medical bills and demand for monetary payment. The adjuster will be given a reasonable time in which to respond; usually 21 – 30 days. Assuming the adjuster does not request additional information, the adjuster will make an offer at the expiration of that time period. All offers are taken to the client with a breakdown of the amount the client would “net” after payment of attorney fees, costs, medical bill balances, and insurance payment liens. The client will then give me authority to accept the offer, make a counter-demand, or file suit.
If a lawsuit is filed, the attorney must draft a Complaint / lawsuit and file it with the court. A copy of the complaint must then be served on the defendant by a process server. This often takes 5 – 15 days after the complaint is filed. Once the defendant is served with the complaint, he/she will contact his/her insurance company who will then hire an attorney for that defendant. The defendant has 20 days after being served with the compliant to file a responsive pleading/answer to the complaint.
After the defendant files its answer, the parties will conduct “discovery” which includes sending each other interrogatory (questions), requests for production (of documents), requests for admissions, taking depositions of parties and witness. The parties also have the power of subpoena which allows them to request documents from non-parties to the case (treating physicians, employers, etc…) Once the discovery process is complete the case will be set on the court’s trial docket which can be 6 – 9 months from the date the case is noticed for trial. This litigation process can last 6 months to 1 ½ years. Prior to trial the parties will be required to mediate the case which gives the parties an opportunity to settle the case without going to trial.
Even if the client is successful at trial, the defendant can appeal legal issues to the district court of appeals. The appellate process can last 6 months – 1 year. Because of the uncertainty involved in letter 6 strangers decide your financial fate as well as the time it takes to go through the litigation process, a large percentage of cases settle prior to trial. If a settlement is reached with the insurance company the insurer must tender payment according to the terms of the agreement no later than 20 days after such settlement is reached.
