Automobile Accident – Rear End Collision - $2,200,000 Settlement
The plaintiff, a 53-year-old married man and father of a teenage child, was seriously injured when his car was struck from behind in rush hour traffic. The car accident occurred as the plaintiff was driving south through the Braintree Split on Route 3. The impact occurred when he was stopped. The car that hit him was traveling between 5 and 10 mph. Plaintiff felt immediate pain in his neck, which was radiating down his right arm. After exchanging information, he drove home, then sought immediate attention at the local emergency room.
Plaintiff then embarked on an 18-month quest to find relief from the relentless pain in his neck and shoulder, and the shooting pain and paresthesias (numbness) in his right arm. He tried various medications, physical therapy and acupuncture, but could obtain no relief. Radiology studies and EMG’s (nerve tests) did not identify a clear cause of the problems. He was not a candidate for surgery on the cervical spine. Finally, a local neurosurgeon offered him a trial of a spinal nerve stimulator. The stimulator was placed externally, with the electronic leads over the right side of his neck. The trial device provided excellent relief. Since the trial was so successful, a permanent stimulator was implanted a few weeks later.
The device included a battery/transmitter unit which was placed in a skin pocket on the buttocks, with leads threaded up along the spine, ending in the electrodes that provided the stimulus to distract the pain. The stimulator worked for a few months, until the leads inadvertently moved out of place. Additional surgeries were required to replace the leads and also to clear an infection that occurred in the stimulator pocket.
Since the plaintiff was in the course of his employment when the automobile accident occurred, his medical bills and lost wages were covered by workers’ compensation. The medical bills were in the range of $640,000, but were paid at a reduced workers’ compensation rate. Plaintiff’s lost earnings were minimal, since he made every effort to continue his work as a salesperson, despite the disabling nature of his injuries. He did, however, lose some clients and their commissions, and his ability to expand his sales practice was diminished.
The case was litigated in the Superior Court. Extensive discovery was conducted regarding the plaintiff’s medical treatment and his medical history. Depositions of all the parties, including the plaintiff’s wife who brought a claim for loss of her husband’s consortium, were conducted.
The defendant driver was candid: The accident occurred because he was distracted. He had taken his eyes off the road while reaching for his sunglasses. He admitted the accident was completely his fault.
After discovery was concluded, and after plaintiff had identified one of his two expected medical experts, the parties agreed to mediate the matter. The case was resolved during mediation, which took place just one week before the scheduled pre-trial conference.
Ten percent of the settlement was allocated to the plaintiff’s wife for her consortium claim. The Hunter offset (which operates sort of like a future lien on medical payments) was limited to $150,000 for all future treatment. If that amount is reached, then workers’ compensation will again be fully responsible for all remaining medical bills for the rest of the plaintiff’s life. It is anticipated that the plaintiff, who is now 55, will probably require two replacements to his stimulator as the batteries wear out over time, and other regular treatment to keep the stimulator properly tuned.
The plaintiff was represented by Attorney David W. White.