Visitor Question

Calculating compensation if at-fault party was billed?

Submitted By: Nancy (Corvallis, OR)

I was the victim in a pedestrian-automobile accident in August 2015. Driver was cited and cooperated with police. I was transported to the emergency room and subsequently admitted for 48 hours.

Injuries: Broken shoulder blade, five broken ribs and a broken toe (more about that later), plus assorted contusions, lacerations and abrasions. Two staples in the scalp, three stitches in my left ear.

My auto insurance covered the first $15K. My health insurance was informed that it was a MVA. When I received any subsequent bills, I contacted the provider and gave them the contact information for the at-fault party. So far I am only out of pocket for pain meds, replacement of my iPad that was destroyed in the accident, and my share of the ambulance bill (health insurance paid 75%).

I will claim lost wages, spouse/caregiver’s lost wages, and loss of consortium.

Question 1: When I calculate for pain and suffering, do I total up ALL bills, whether I paid out of pocket or not? Or can I only claim what I paid out of pocket? I received the lien letter from the hospital, so I’m thinking I should use the total of all, then wait for the various providers to ask for their cut.

Question 2: About the toe: the hospital nursing staff examined it and agreed that it did appear to be broken, but it was never x-rayed and there is no mention of their opinion in the nurses notes. (I am asking for the record to be amended.)

It was x-rayed five weeks later, and the physician reading the film agreed that the break appeared to be several weeks old. If the at-fault party’s insurance refuses to pay compensation for the toe, what are the chances that the hospital will accept fault?

Thank you for any perspective you can give.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.


Dear Nancy,

Answer 1: In most personal injury claims, pain and suffering is not calculated separately. To arrive at a settlement which includes pain and suffering, most attorneys use a multiple of medical bills anywhere from 1x to 5x, or even higher, depending upon the seriousness of the injuries.

Your injuries are quite serious. As a result, you can be confident the insurance company is not going to offer you a settlement that comes close to what you might receive if you were represented by an experienced personal injury attorney. Serious injuries like yours should never be handled without legal representation. There is just too much to lose.

Insurance company adjusters are trained to settle injury claims for a little as possible. To do so, many adjusters appear empathetic and try to identify with victims. They are trained to make victims like you believe you have just negotiated a settlement which is far beyond what the claim is worth. That’s almost never true.

This may be happening with you. Insurance company adjusters like to do everything they can to stop a victim from retaining an attorney. The adjusters know once an attorney is retained, it may take much longer for the claim to settle, and the claim will undoubtedly settle for much more than then the insurance company wants to pay.

As a victim representing yourself, you have virtually no leverage with the adjuster. The adjuster knows if you don’t accept the amount offered, there is nothing you can do. An attorney can file a lawsuit in higher court.

Fortunately, most personal injury attorneys do not charge for initial office consultations. Your interests would be best-served by visiting with several experienced personal injury attorneys in your area.

Take along copies of all your medical records and bills, along with receipts for your out of pocket expenses. Also bring a letter from your employer verifying the amount of wages you lost while treating and recovering.

Answer 2: DO NOT sign any agreements, releases, or endorse any checks you may receive from the insurance company until you have visited with several attorneys.

Learn more here: Pedestrian Accident Claims

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.

Find a local attorney to give you a free case review here, or call 888-972-0892.

We wish you the best with your claim,


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