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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Three Level Cervical Fusion Surgery Policy Demand: Settled for High Costs of Defense

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Three Level Cervical Fusion Surgery Policy Demand: Settled for High Costs of Defense

Attorney Alex Sweis recently settled a high exposure cervical fusion claim for a high cost of defense, take it or leave it offer. The plaintiff in the case allegedly sustained cervical herniations at levels C3-C6. The plaintiff did undergo a three level fusion surgery and demanded the entire commercial policy from the insured’s carrier.

Plaintiff argued that Alex’s client was at fault for causing the automobile collision in snowy conditions. Plaintiff contended that Alex’s client lost control in the snow and merged into plaintiff’s lane of travel. The rear driver’s side of Alex’s client’s car made contact with plaintiff’s front passenger side fender. Alex’s client and the Illinois traffic crash report both state that it was the plaintiff who lost control trying to pass Alex’s client’s vehicle and crashed into it.

The plaintiff did not seek emergency room care and presented to his primary medical provider nine days after the accident. He did complain of neck pain and lower back pain. He was sent to a pain doctor and did undergo a cervical MRI. The MRI showed herniations at C3-4, C4-5 and C5-6. Plaintiff also complained of lower back pain and his lumbar MRI showed disc bulges at L2-3, L3-4, L4-5 and L5-S1. Four months after the accident, plaintiff underwent the three level cervical fusion surgery. Plaintiff’s total medical bills were over $150,000. Plaintiff made a policy demand for Alex’s client’s entire $350,000 commercial policy limit.

Alex reviewed the plaintiff’s medical records from before the car collision. The pre-accident records did show prior lumbar and cervical injury and herniations. Most importantly, the prior records disclosed that plaintiff underwent a cervical epidural steroid injection eight months before the car accident occurred. During the litigation, the parties became aware that the plaintiff’s cervical fusion surgeon had passed away.

Facing a policy demand, fusion surgery and over $150,000 in medical bills, Alex and the carrier agreed that the case was not only defendable, but the case value was nowhere near $100,000. Alex and plaintiff’s counsel had a very short settlement negotiation. The only offer made, and that would be made, was $45,000, period. With the pre-accident injury, conflicting liability statements, and the death of plaintiff’s surgeon, Alex and the carrier determined that the case would either settle for high costs of defense or posture for trial. During the only phone call with plaintiff’s counsel, Alex informed him of the take it or leave it offer. Plaintiff’s counsel thought Alex was overconfident and Alex replied, it is not about confidence when you have the facts. The case did settle for $45,000 from the $350,000 policy demand.

Even though the case did feature elements of a potential excess jury verdict, the decision was made that some cases need to be tried or settle for a strict cost of defense offer. For more information about the case or other litigation questions, please contact attorney, Alexander Sweis.

If you found this article valuable, you may be interested in reading other articles by attorney Alex Sweis related to insurance defense litigation and settlement options.

Categories General Litigation Insurance Litigation Defense



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