I am a 71-year-old male on a fixed income. Two weeks ago I was hit by a car and knocked to the ground while crossing a Safeway parking lot after buying groceries.
Although 911 was called and a police report was filed, my injuries seemed minor and I refused a trip to the ER. Because of COVID and being in that high-risk group, I am avoiding hospitals and doctors as much as I can.
However, the next morning I couldn’t raise my arm due to shoulder pain. A trip to Urgent Care revealed no breaks and what could be a partial rotator cuff tear. I started physical therapy yesterday and now after two weeks there is some improvement.
I have since filed a claim with the at-fault driver’s insurance company and am waiting for things to shake out.
Because I have very good health insurance (which I pay for along with Medicare) there probably will be very few medical bills not already covered by my medical insurance. Am I still entitled to compensation from the at-fault driver’s insurance company?
I am still suffering from shoulder pain and am unable to do a lot of things I would normally be doing this time of year. I am hoping to settle this matter without the aid, or expense, of an attorney.
Thank you for pointing me in the right direction.
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.
You can file a claim with the driver’s insurance company. But, under Washington law, Medicare and your private insurer can file a lien against the settlement you receive from the driver’s auto insurance company.
Claim with the Driver’s Insurance Company
You can definitely file a claim with the driver’s insurer. You’ll succeed in the claim as long as you can prove that the driver was negligent. Negligence means that a driver failed to act reasonably under the circumstances.
Claimants typically have to prove the following to show that a driver was negligent:
- The driver owed the claimant a duty of care
- The driver breached that duty
- The breach injured the claimant
- The claimant suffered verifiable damages
Here, it seems that you can likely show all of the above elements. Drivers owe a duty to pedestrians to drive carefully. The driver injured you, and as a result, you suffered verifiable damages.
The only question we have is whether the driver breached the duty owed to you. Your email didn’t mention many of the facts regarding the accident, so we’d have to learn more to say to a level of certainty whether the driver was indeed negligent.
Facts suggesting that the driver failed to uphold the duty to drive safely include:
- The driver was speeding
- The driver was not looking
- The driver was distracted (for example, by a phone or mobile device)
- Whether you were walking in a crosswalk at the time of the accident
Medical Liens Against Your Settlement
If you succeed in proving negligence, the driver’s insurance company will compensate you for the full cost of your medical care, out-of-pocket medical expenses, replacement services that you had to hire out during your recovery, and an amount to account for your pain and suffering.
Medicare and your private insurer have a legal right of subrogation under Washington statute WAC § 182-501-0100. In other words, your health insurance company has the right to recover the amount they spent on you for injuries caused by the negligent driver.
It’s important to maximize your compensation by gathering bills and receipts for the full amount of your medical expenses, not just the copays or amounts paid by Medicare. You get to recover the full value of your medical bills, but Medicare only gets to reclaim the discounted portion they paid on your behalf.
You can probably file a claim with the driver’s insurer and resolve the lien without assistance from a lawyer. Car insurance companies generally aren’t allowed to cut a check before identifying and satisfying liens.
Still, it’s worth your time to speak with a personal injury attorney before deciding to handle your own claim. Experienced attorneys can often negotiate liens so you get to keep even more of your settlement.
Learn more here: Pedestrians Hit by Cars
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.
We wish you the best with your claim,
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