Head injury when my SUV flipped in a rear end accident...

by Candace
(Bartlett, TN)

I was coming home and was at a stop sign getting ready to make a left hand turn. As I was pulling out, I looked back in my rear view mirror and noticed a car coming from the same direction. The car was going too fast and I knew they were not going to be able to stop. As I stepped on the gas to hurry up and finish making a left hand turn I got rear-ended.

She hit me so hard that my SUV flipped up on its nose and started spinning. My SUV continued to spin and roll until it landed upside down. My head hit my driver side window so hard it broke the glass, but I don't remember that. The only thing I remember is my car flipping up as I put my hands on the roof to brace myself and covered my face.

It took me five days to heal and gather my courage to move around a little bit better to go see what was left of my SUV. Immediately when I saw it I started feeling nauseous and sick to my stomach. My whole drivers side was completely caved in and I was told several times how I should have been paralyzed or dead.

It took me about 6 hours to get to the emergency room, so I had to have someone watch my children. Luckily they went with me to the emergency room. But the ER staff did not do a damn thing except touch my neck and my shoulder and say "your muscles are all tight."

I received no x-rays or anything. Then 3 days later I blacked out behind the wheel with my kids and my step mom in the car. It scared me so bad I had my friend take me to the hospital - a different one this time.

I found out I had a lot of swelling on the left side of my head and I had suffered a severe concussion. My right hand is always numb and I've been having really bad short term memory loss.

Do I have a valid claim? How much do you think my medical claim is worth? Is the first hospital liable for not identifying and treating my concussion? Thank you for any information you can give.

Visitor Question:
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ANSWER for "Head injury when my SUV flipped in a rear end accident...":

Candace (Bartlett, TN):

We live in a litigious society. For you to have the basis of a viable personal injury or medical malpractice claim will require medical proof linking your recently discovered injuries to the car crash.

Here's more about liability in medical malpractice cases.

While the facts would indicate your concussion and swelling was the result of the car crash, it will be a challenge to convince the at-fault driver's insurance company your injuries resulted from the car crash, and as a direct result of their insured's driving. This is especially so because the physician at the first hospital failed to diagnose your injuries.

From the facts you present, there isn't enough evidence to support a medical malpractice claim. For there to be medical malpractice, you would need to show that the failure to diagnose your concussion was the direct and proximate cause of the swelling, or of another injury which might have been diagnosed and treated.

You presented no evidence the failure to diagnose exacerbated your injuries.

Tennessee is a third party tort liability state. In Tennessee, the victim in a car accident may pursue compensation from the at-fault driver directly. Some drivers carry personal injury protection (PIP) insurance coverage for those occasions when medical bills must be paid promptly while the car accident claim against the at-fault driver is being negotiated.

In your case, the best course of action is to pursue the at-fault driver for compensation for medical bills and resulting costs stemming from the car accident.

Surely there must have been a police report. In the police report, the other driver was likely issued a traffic citation for "Following too Closely" as set out in Section 316.0895 of Florida Statutes below:

"(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway."

You have three basic options under Florida's 3rd Party Tort Liability provisions:

1. File a claim with the at-fault driver's insurance company

2. File an insurance claim under your own PIP policy

3. Sue the at-fault driver personally

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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