If you're involved in a South Carolina personal injury claim, you may be wondering how to start the settlement negotiation process. Or maybe you've heard about a “demand letter” and wonder what that is. Settlement negotiations in South Carolina, personal injury claims, start with the demand letter. For the purposes of this article, a personal injury claim could be a slip and fall, trip and fall, dog bite, medical malpractice, nursing home or assisted living facility neglect, or another injury case that's not a motor vehicle accident case.
For South Carolina car accidents, we have a separate article devoted to those demand letters.
What Is a Demand Letter?
A demand letter is a brief, powerful summary of the most important facts in your case, proving why you should get a good settlement. Your personal injury lawyer will draft the letter and send it to the insurance adjuster. But it's far more than “I got hurt, pay me money.” The first thing to remember about an insurance company is that it makes money by not paying seriously hurt victims.
Here's the key to a South Carolina personal injury demand letter: You've got to prove you deserve a settlement. The demand letter is your settlement offer, backed with evidence proving you legally deserve it. Below, we cover the important aspects of your case that need to be addressed by your demand letter.
If you're overwhelmed by the prospect of a demand letter or dreading negotiations with the insurance company, I’m here for you. Get your questions answered in a free, no-pressure strategy session with a Spartanburg, SC, personal injury attorney. Call toll-free at 888-230-1841 or fill out a Get Help Now form.
First Things First-Prove Liability
Before you can qualify for a settlement in any South Carolina personal injury case, you've got to prove the person, business, or facility that hurt you is at fault. This is called “legal liability.”
To do that, the first thing you need to know is the law. That's what establishes liability. For instance, if you slip on a puddle in a grocery store, the law requires you to prove that employees knew or should have known the puddle was there or put it there and did nothing about it. Additionally, due to the defense of comparative negligence, you've got to prove you weren't more at fault for failing to see the puddle.
In cases where you get hurt by a medical provider, like medical malpractice or assisted living facility neglect, you've got to prove the provider broke a safety rule. These safety rules are called the “standard of care.” In these cases, proving liability is highly complex. It almost always requires hiring an expert, usually a doctor or nurse, who can testify your provider violated the standard of care and caused your injuries. These cases are extremely hard to win, and they are high risk for patient victims. That makes it critical to get an experienced medical malpractice or assisted living facility and nursing home neglect attorney to guide you.
Once you're familiar with the law, you've got to know all the facts about how you got hurt and evaluate whether they fit into the law to prove liability. For example, if you trip over a tool left in a store aisle from floor repairs, you might still have a case, even if you should have seen it. That's because the law provides liability where a store should have known you would be distracted from seeing the hazard. However, you've got to prove you were looking at the shelves and never saw the tool. That will involve a close recall of exactly where the tool was located and where you were looking when you tripped over it.
On the other hand, if you just walked past a large yellow sign that says “Warning: Floor Repairs,” you have no case. The store warned you about the repairs, putting you on notice items could be amiss on the floor.
Liability can be extremely hard to prove in South Carolina personal injury accident cases. Insurance companies know this and will seize on your ignorance of the law to convince you there's no case or shortchange you in a cheap settlement. If you're seriously hurt, don't let that happen to you. Contact an experienced Spartanburg, South Carolina personal injury attorney. Call toll-free at 888-230-1841 or fill out a Get Help Now form.
Once you've got liability nailed down, you have to prove what your settlement is worth, or what you should recover in damages.
Prove Your Medical Treatment Is Related to the Accident
The next step to get a settlement involves proving your medical bills resulted from a South Carolina accident. It may be harder than it seems. You certainly can't just mail the insurance company copies of your medical bills and say pay me. You've got to provide the medical records and highlight where those records make it clear you needed treatment because of the accident.
That can be a challenge in even a clear-cut case because doctors aren't lawyers. Doctors are not concerned with getting you a settlement. Their job is to diagnose an injury and treat it. Sometimes, their medical records make no mention of the fact you got hurt in an accident, or it's unclear whether the doctor believes your injury resulted from the accident.
In that case, ask your doctor to confirm she relates your injuries to the accident. But be careful: Doing so requires understanding liability law and medical terms, and you need to tie the injuries to an accident. In my cases, I meet with doctors regularly. What often results from those meetings is a questionnaire where the doctor answers a series of yes or no questions about the key parts of your medical case:
- Relating your injuries to the accident
- Confirming key aspects of treatment, like surgery, are related to the accident,
- Affirming medical evidence of the harm and disability you suffered from the accident.
It can be a powerful tool because insurance companies know if the doctor testifies, she won't back off what she checked in that questionnaire.
If your accident injury worsened a prior condition, your case is even more challenging. Let's say you have a bum knee that you've treated with an orthopedist off and on over the years, maybe going to a little physical therapy and even having a few injections. Then, you injure the same knee in a South Carolina accident, requiring the orthopedist to operate. Count on the insurance company seizing on this prior condition to say you would have needed this operation anyway, and they don't have to pay for it because it's a prior condition.
You don't have to fall for that. But you do have to make sure your doctor supports the fact that the accident caused a worsening or aggravation of your prior injury, resulting in the surgery. This can be an extremely touchy situation that's got to be handled by a professional. You can't risk having a doctor meeting without someone on your side who understands how medical evidence works in your case.
If you've been seriously injured in a South Carolina accident, especially if it requires an operation, the stakes are high, and the insurance company will only fight harder because you will be asking them to part with way more money than they want to. Don't risk being taken advantage of. You need a personal injury attorney skilled in dealing with doctors and medical evidence to present clear medical proof the accident caused your treatment.
Are you worried about the impact of a prior injury in your case? Get peace of mind by calling me toll-free at 888-230-1841.
Once you prove your treatment is related to the accident, you can move to proving one of the hardest and most important aspects of your case.
Prove Pain and Suffering, Which We Call “Human Loss”
It can be extremely challenging to prove to an insurance company you should get a settlement including pain and suffering. Insurance companies are skeptical and tight-fisted. They've done a magnificent job convincing regular folks- maybe even you- that pain and suffering is a “made up” part of the “litigation lottery” to extort huge amounts of money from businesses and insurance companies.
You've got to know how to counteract this powerful idea with legitimate, sincere proof of actual harm and loss. By the way, it's not just pain and suffering. That's why we call it human loss. I've done it so long and confronted the challenge so many times that I've developed a method to help my clients think about how to precisely describe the pain and log the most important parts of their difficulties caused by injuries. It helps us present a better settlement demand to the insurance company, and if we go to trial, it's that much easier to remember in testimony.
Just as a quick example, make your pain personal. Which one is more convincing:
- “My shoulder hurts,” or
- “It feels like somebody hit my shoulder with a sledgehammer. I can't even raise my arm to pick up peanut butter from the shelf, and when I move it, it feels like I've been hooked up to a car battery with electricity shooting down my arm like lightning.”
The caveat here is that your description has to be what it's like for you and totally true, plus uncontradicted by medical reports. In other words, never, ever exaggerate to your doctor or insurance company. It will kill your case.
As stated earlier, this is one of the most important parts of your case and is likely the hardest to prove. If you've suffered a South Carolina accident injury, get some guidance on proving the impact of the injuries on your life. Call toll-free at 888-230-1841 or fill out a Get Help Now form.
Prove Future Treatment if You Need It
One of the most stressful prospects for any seriously injured South Carolina accident victim is getting a settlement to cover medical care after the case is over.
The first thing you need to know is you've walked into a legal minefield. Getting future medical care in a settlement requires some legal “magic words.” Again, you need your doctor to support you. The doctor establishes the possibility of treatment. Then you need to find out how much it’ll cost.
PRO TIP: the doctor won't know. You need to know who to ask in his office to get those estimates. You may need estimates from multiple facilities if treatment, like surgery or physical therapy, is required outside the doctor’s office.
Next, you may need an economist to prove the amount, as South Carolina law requires money for future medical care to be stated in present value. That's a reduced amount of money to reflect that you can put that money aside to earn interest, giving you enough when you need it in the future. I don't like it either. I think you should just be paid full value right now, but again, this is what the law says, and we are bound by it.
If you need future medical care, you can't risk getting it wrong. Get professional help from an experienced South Carolina personal injury accident attorney who can help you gather the medical evidence, find the cost, and present it to an economist if necessary to do the proper calculation to preserve your right to critical care. Call me toll-free at 888-230-1841.
Prove Lost Wages From the Accident
As you might expect by now, you don't get compensated for lost wages just by telling the insurance company how many days of work you missed and how much you get paid. Yep, it's more complicated than that.
The first thing you need is a doctor's excuse justifying the missed work. The next thing you need is a signed document from your supervisor or human resources officer attesting to how much you get paid, how much work you missed, and how much that cost you. I do that so often that I've developed a form for clients to use, making it simple and easy for everyone involved.
The Hardest Part: Settlement Value and Demand Amount
Now that you've told your story, you've got to do the hardest thing any South Carolina accident attorney confronts. You've got to take a step back from the emotions and harm of your case to evaluate what you predict a jury will do with your case based on your experience.
If you're a victim, that can be virtually impossible when you're seriously hurt because:
- You're an amateur. It's not your job to evaluate accident injury cases for settlement.
- You are emotionally and financially invested in obtaining financial compensation for what an irresponsible person or business put you through. Unlike you, a jury will not be emotionally or financially invested in your case. The jury will consider the defense side of the case, including whether it was even their fault or more your fault and whether you're really hurt as badly as you say.
That's why serious cases cry out for professional guidance from an experienced South Carolina accident attorney. Get your questions answered in a free, no-pressure strategy session. Call toll-free at 888-230-1841 or fill out a Get Help Now form.
Once you've figured out what your case might be worth, you have to figure out a negotiating starting point to arrive at a compromise. Start too high and you'll be ignored. Start too low and you'll cheat yourself.
Submitting the Demand
Once you have figured out the value for settlement, it’s finally time to send your demand to the insurance adjuster.
Even submitting the demand can present challenges. You’ve got to send all the medical bills and records, plus a summary of everything you went through as a result of the accident, including your human loss, lost wages, and medical evidence of future care plus the estimated cost of it. It can be a ton of information.
PRO TIP: In bigger cases, we often send the demand in several parts so it's not too overwhelming for the adjuster. It helps the adjuster gradually put more money on the case so they don't just show up in their supervisor’s office asking for a ton of money out of the blue. This tends to speed up the settlement process.
And once you get it all submitted, you've got to follow up with the adjuster to make sure they got it. As my paralegal will tell you, that can be a real pain, even for a professional, requiring multiple attempts.
The Adjuster Got the Demand. Now What?
Now, you engage in the mind-bending process of negotiating with the insurance company. Expect to be ignored. Expect to have your injuries devalued. Taking the emotion out of this and supplying the art of telling your story to a hard-nosed insurance adjuster is a key reason to hire an experienced attorney to help you get a bigger settlement amount for your South Carolina personal injury claim.
If you've got any questions about telling your story in your South Carolina accident case, don't suffer in silence. Call me at 888-230-1841.
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