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Don’t Settle Before Surgery

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Victims of accidents often need surgeries to save their lives, to correct damage, and to have a chance at a normal life. If possible, a patient should not settle before surgery and other treatment is done. Surgeries may be needed if victims suffer any one of the following injuries, among others:

  • A traumatic brain injury
  • Damage to the spine
  • Fractures or broken bones
  • The loss of a limb
  • Different types of pain – back, neck, knees, etc.
  • Burns
  • Cardiac arrest

Why surgeries are necessary

Surgeries are often required if there was a car accident, a slip and fall, a construction site accident, a fire, a product was defective, or for other reasons. In addition to surgeries, many accident victims require long term medical care. Often they need to treat with physical therapists, chiropractors, vocational therapists, psychologists and other health care providers.

Why accident victims may feel pressure to settle before surgery  instead of getting the medical treatment they need first

Hospitals, doctors, and all types of health providers want prompt and timely payment for their services. Except for emergency room treatment that is necessary to save someone’s life, the hospital or doctor may even decline to treat an accident victim until he or she can show proof of insurance.

In Florida, there are several types of insurance for medical services:

Personal health insurance

Ideally, an accident victim has his/her own insurance policy. Many workers have insurance through their employer. Some workers have insurance through the Affordable Care Act. Seniors have insurance through Medicare. Medicaid may be available. Some people are named as insureds on the insurance policy of a spouse or a parent.

Personal Injury Protection (PIP) insurance

In Florida, car owners must have PIP insurance for themselves, for the passengers in the car they drive, and for immediate household members. The amount of insurance that the owner must buy is $10,000. This sum is then available to pay 80% of medical bills  for car accident injuries – including the cost of a surgery. PIP coverage, up to the limits, also pays for ambulance services, diagnostic tests such as X-Rays and MRIS, rehab services, and doctor visits.

Medical-Pay (Medpay)

This type of insurance is optional. It basically is available to pay the remaining 20% that PIP insurance does not cover – up to the policy limit.

Liability insurance

The responsible driver, property owner, manufacturer, or other defendant is required to pay for your medical bills in excess of what PIP and Med-Pay pay. Additionally, they must pay for your pain and suffering and any lost wages.
The main problem with this type of car insurance is that it is not available until the injury victim settles the accident claim or until there is a verdict. Settlements and jury trials can take months and months.

The choice to make if there is not enough insurance coverage

For victims who have their own health insurance, they can have their surgery when they need it. Car accident victims who do not have their own insurance, must then work with their Florida car accident lawyer to determine either:

  • How they can have the medical surgery they need before there is a settlement or verdict or
  • Decide to wait to have the surgery until the settlement

Since just one night in a hospital can cost tens of thousands of dollars, the PIP coverage and the Medical Pay coverage will likely cover only a fraction of the cost of a medical surgery.

Letters of Protection

One possible way to have the surgery proceed when the victim needs it, instead of waiting, is for the attorney for the car accident victim to arrange a letter of protection. A letter of protection (LOP) essentially is a promise to the hospital or doctor performing the surgery that they will get their money when the case is resolved (if the client wins or the case settles). Some hospitals, ambulatory surgery centers, and others are willing to defer payment if they get the LOP. Other health providers may not be willing to wait.

Why it is better to have the surgery when you need it

Surgeries are never certain procedures. Accident victims who settle before surgery are taking a major risk. If the surgery is done before settlement or verdict, the patient knows how well the surgery worked. He/she understands how long the recovery is. They know what types of follow-up treatments are best.
If the victim settles before surgery, there may be problems with the procedure. The surgery may go well but may not help the victim. There may be permanent damage.

Settlements are final

Once an accident victim settles a claim, there is no do-over. The victim cannot come back later and say he/she had more medical expenses than were reasonably predicted. That’s another reason not to settle before surgery.

Additional factors

It is best to wait, to not settle before surgery, a case until the accident victim reaches maximum medical improvement. This is the point when additional medical treatment is not expected to improve the person’s health. Patients who reach maximum medical improvement may still need therapy and treatment so their condition does not get worse.

It can be difficult to make a reasonable prediction. In some injuries, like a broken bone, there is a reasonable expectation as to what surgery is needed and what the outcome is likely to be. For patients with catastrophic injuries, it can be very difficult to know if the victim needs multiple surgeries, needs different types of surgeries than the ones prescribed, and to know what therapy may help – for the rest of their lives.

Pain and suffering and surgery

The type of surgeries you need and the type of treatment and the length of treatment are strong factors in determining the value of your pain and suffering claim. If you settle before surgery, you may not be getting enough compensation for your pain and suffering.

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