When you are injured in a car crash through no fault of your own, it can sometimes be difficult to know exactly what medical damages the insurance company for the at-fault person is responsible for paying under the law. Keep in mind that I do not say what medical damages they will pay as insurance companies will fight tooth and nail to pay you as little as possible on every claim. Insurance companies train their adjusters on ways to reduce the values of claim and how to try and settle claims quickly and cheaply with injured motorists in order to prevent them from obtaining an attorney. Once an injured person obtains an attorney, insurance companies know they will likely be forced to pay a fair amount for the claim.

In regard to any injury, the first type of expenses you are entitled to recover is medical expenses you have incurred. You are entitled to recover any medical expenses that you can demonstrate, more likely than not, were caused by the negligent or careless conduct of the at-fault driver. The at-fault driver is only responsible for paying the reasonable amount of any medical care that was necessary for your injuries and caused by the at-fault driver’s negligent conduct. 

It is impossible to talk about recovering past medical expenses in Texas without talking about an extremely unfair change to the law that occurred in 2003 and you will hear it referred to as “paid or incurred.” It used to be, in Texas, that you could recover the reasonable amount of your medical care, which would be demonstrated by showing the amount that the medical provider charged, admitted into evidence, along with testimony or an affidavit from the medical provider saying that the amount was reasonable and the treatment was necessary for the injuries suffered.

But, in 2003, a poorly written statute changed the law so that only what was “paid or incurred” for medical services—not what was actually charged—could be recovered.

At first glance, this may seem fair. A plaintiff should only be able to recover what they actually paid or what they actually will be required to pay. But the effect is anything but fair. You see, traditionally in the law, there has been something referred to as the “collateral source rule” which is meant to prevent a defendant that has caused another injury from gaining a windfall from a benefit intended for the plaintiff.

Unfortunately, this change in the law coupled with later case law has had the effect of allowing reckless, careless, and unscrupulous defendants to benefit from the responsibility and diligence of the exact people they have injured. An example makes this clear.

Properly-prepared Paul is struck by Drunk-driving Dan who is driving the wrong way on a highway. Paul has worked hard his entire life and pays premiums every month so that he can have health insurance. Paul is taken to the hospital and is initially charged $100,000.00 for medical treatment. But, since he has health insurance, the health insurance company has a deal with the hospital that those charges are “adjusted” down to $15,000.00. Under the current law, Paul can only make a claim for the $15,000.00.

Now, let’s suppose Drunk-driving Dan had struck someone that did not have health insurance. That person would be able to claim the entire $100,000.00 from Dan because there would be no adjustment to the amount owed due to having health insurance. The effect is that Properly-prepared Paul’s claim for his medical expenses against Drunk-driving Dan is reduced by $85,000.00. In other words, a drunk-driver that has badly injured someone on the road is able to have a windfall because the person he hit paid to have health insurance.

Keep in mind that Paul has paid premiums for the benefit of his health insurance coverage for years. But wait, the injustice is not over yet because the health insurance company also has a right to be paid back out of any settlement with Dan for anything they paid out for medical expenses This is referred to as a “subrogation” right. A skilled injury attorney though should have vast experience in dealing with subrogation claims from health insurance companies and negotiating them on behalf of their client. 

Paul’s claim will be further reduced though because adjusters and juries alike, often base their calculation of other damages such as physical pain and mental suffering on the amount of the claimed medical expenses. Now, keep in mind that this is not the law in every state. If Paul had been hit on a highway in Louisiana, he would be able to claim the full $100,000.00 in medical expenses that he was charged for.

The real kicker is that the auto insurance company for Dan will still often argue that the medical expenses incurred by Paul are unreasonable even though he had health insurance and realistically had no choice in what hospital he went to after being hit by a drunk driver. A skilled injury attorney will be able to counter and dismantle these ridiculous arguments. 

Keep in mind though that you are also able to recover for the reasonable value of any future medical care that, more likely than not, you will incur in the future because of the negligent conduct of the at-fault driver. A skilled attorney can make sure that your need for future care as a result of the crash is properly documented. For instance, depending on your age, if you had a spine surgery as a result of a wreck, you may need additional surgery in the future due to wear and tear that the hardware from your surgery inflicts on your body. You might need medication for the rest of your life or additional physical therapy intermittently as the years progress. In extreme circumstances, you may need someone to care for you on a full or part-time basis. This is often the case if the injury involves a head injury or significant injury to the spine.

Understanding what medical expenses can be recovered can be a daunting task. If you have questions about what amount of medical expenses you can recover due to the reckless or careless conduct of an eighteen-wheeler driver or a car driver, then feel free to call the experienced car accident attorneys of Samples Ames at (469) 466-2600 and we will do a free damages work up on your case.

James Ames
Helping personal injury and car / truck accident victims in Farmers Branch, Carrollton, Dallas and Fort Worth.

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