Interviewer: You mentioned soft tissue injuries like whiplash. Are there any other soft tissue injury cases?
Daniel Hoarfrost: Well, there can be. Any kind of bruising or straining of muscles or nerve fiber that doesn’t necessarily show up on an x-ray, that’s basically what a soft tissue is, but the most common one, especially in car accident scenarios, is the neck or back strain from the whiplash type impact.
Interviewer: What about something that has to do with lower back pain? One cannot simply tell right off the bat or able to show on an x-ray specifically, but what about lower back pain cases?
Daniel Hoarfrost: Yeah, that’s the same. I mean, it’s still related to whatever the cause of the injury is – usually a car accident – but it’s not readily apparent on an x-ray. The whole problem with soft tissue cases is that you’re essentially relying on the injured party’s subjective report that they’re hurting, and there’s not necessarily any “objective,” such as an x-ray, that verifies that, so that’s why the defense side tends to battle on those issues.
Initial Consultation & Predicting Case Outcomes
Interviewer: I’m going to put myself into the perspective of the client. Let’s say I received a whiplash injury. I’ve contacted you. Am I going to be made aware of those options right off the bat, like when I meet with you in my initial consultation, if it’s something like a whiplash? Or does it require a lot more investigation first?
Daniel Hoarfrost: Well, it always, in the initial consult, when we decide to go forward and sign the contingent fee agreement, I explain the terms of the agreement and there is a provision in there that talks about what happens when there’s a court award for attorneys’ fees, but typically we don’t go into great detail at that point, because we really don’t know what a case is worth at the outset. You can have a good hunch as to how it’s going to develop, but until the person has completed their medical treatment, you really don’t know, necessarily, what’s involved.
I’ve had cases where it didn’t really appear that it was a serious injury in the early going, but by the time several months of treatment had taken place, and an MRI identified a herniated disc, there was surgery involved, and the whole complexion of the case changed markedly. Other than to just mention that it’s a possible factor to be considered, there’s not much point in talking about it in great detail at the early part of the case.
Interviewer: You could probably give me an idea, though. Are there any circumstances that you’ve seen where you’re like, “Okay, I’ve seen this before and despite the medical treatments ” you know pretty much you can give me an idea of how it’s going to turn out. Is there a particular injury for that? Where you say, “Hey, I know how this is going to play out?”
Daniel Hoarfrost: I try not to do that, primarily because you really don’t know for sure, so it’s all speculation. I always, basically, at the early part of the case, tell people, “You’re in the hands of the doctors. Get the treatment that you need and do your best to recover because recovering your health is more important for you than recovering money from the claim.” Then once we’ve gotten into the treatment far enough, we’ll have a good idea of what the nature of the injury actually is, and it’ll be time to sort it out and put an actual dollar figure on the claim amount.
Interviewer: Can you make that determination if the injury required, like, let’s say, surgery? Could you put that figure right before the surgery or would you put it right after the surgery?
Daniel Hoarfrost: Well, you never really kind of reach a final valuation until treatment is completed.
You usually have a good idea of what may or may not develop, before the surgery takes place, but you don’t actually know what will happen and they can’t guarantee the results from the surgery, so you always have to wait and see what develops before you put a final valuation on it.
Interviewer: Now this is just kind of going a little bit askew here as far as my questions. I’m just curious. What if, in that situation, someone had to get surgery, you’re going to wait until after the surgery, but there were still some more complications because of the surgery? You know, maybe that person’s elderly or something else occurred.
Daniel Hoarfrost: That’s one of the reasons why you wait. Complications of surgery are a natural result of the initial injury, so in essence, the at-fault party ends up being responsible for that as well, because the person never would have gone in for the surgery if it weren’t for the initial injuries.
What you’re always looking for is what we call medically stationary, which just means you’ve reached the point where there’s no point in continuing treatment. You’re either recovered or you’ve reached the stage where you’re as good as you’re going to get. That’s when we try to evaluate it and put a dollar amount on the claim.
Interviewer: So in some cases it could mean an injury that’s lifelong, in other words, right?
Daniel Hoarfrost: Exactly. Yeah. Permanent, residual disabilities – that, of course, makes the case worth more money.
Interviewer: Now, in the case where an injury worsens after a surgery, does the opposing party ever try to contest that and try to say, “Hey, well, that has nothing to do with the original injury?” Do they ever try to go that route?
Daniel Hoarfrost: Well, you know, they can. What’s more likely is if they’re claiming that the doctor malpracticed and then they have a right to drag the doctor into the claim and try to get what’s called indemnity, or trying to get the doctor to be responsible for part of the damages.
Interviewer: To share the blame, too, huh?
Daniel Hoarfrost: Share the blame, exactly. It really doesn’t come up too much, but it has on occasion.
Interviewer: I’m now sounding like I’m going back in circles here, but just for the sake of the recording, as far as the whole reimbursement process for obtaining the fees as part of the claim, would you say that process is easy? Or would you not recommend it?
Daniel Hoarfrost: Well, nothing’s every easy, but it’s part of the legal structure, basically, and one of the reasons why you bring an attorney into the case, because, while it may not be easy, at least an attorney knows how to go about framing the case and maximizing the claim.
Interviewer: Are there any cases where the fees exceed the settlement because of the witnesses and other fees that are involved?
Daniel Hoarfrost: Well, it can certainly happen if there’s one of these claims under the statute where the initial claim is $10,000. If that ends up having to go to trial, it’d be very easy to incur attorneys’ fees and litigation costs in excess of that, and that would end up being part of the award, so the actual injury claim would be less than the attorney fee.