A pedestrian that was hit by a car got $70,000 for her broken leg, sacrum fracture and herniated discs. Here are the facts:
Driver’s Car Insurance Company: USAA
USAA Claims Adjuster: Marie Ferrito (initially was Loretta Brazil)
Date of Accident: 7/26/2015
City and State of Accident: West Palm Beach, Florida
Age and Sex of Pedestrian: 59 years old; Female
Pedestrian’s Version of How the Accident Happened
A pedestrian, Daisy (not real name) was injured when, according to her, a driver (William) carelessly failed to slow down and hit her. It happened while she was removing a hose from the street.
USAA insured the driver. She suffered multiple injuries. which I’ll talk about in a moment.
Was the Driver of the Car Liable for Hitting the Pedestrian?
I argued that the driver of the car was negligent for hitting the pedestrian. Before the accident happened, the pedestrian was a passenger in a relative’s (Barbara’s) car.
They were driving West Bound on Palm Beach Lakes Blvd when the driver, Barbara, of the car that she was in had to swerve to avoid hitting a hose on the middle of the road.
They pulled over. Daisy decided she would pick up the hose. I argued that this served to prevent a motorcyclist or driver from striking it and getting badly hurt.
Barbara made a U-turn and was now heading East. She stopped her car next to the median. Daisy carefully monitored the traffic.
When there were no cars in the area, she walked over the median and walked into the street to pick up the hose. On her way back to the median, before she reached Barbara’s car, she was hit William.
The diagram from the crash report is below.
Police Officer Blamed the Pedestrian for the Crash
The police officer blamed the pedestrian for causing the accident. Here is a part of the crash report where the officer blamed the pedestrian for this crash.
To give you an idea of the scene of the collision, I got a photo of the street view that shows the crash scene. It is the image at the top of this article.
I added a pedestrian symbol to show where Daisy was as she was walking to Barbara’s car when she was hit.
Here is a view from farther away.
Daisy stated that it was a clear day. There was no traffic on the road except for Barbara’s vehicle and later, William’s car.
Daisy said that William had plenty of time to stop or move aside to avoid hitting her as she walked back to Barbara’s car. As seen in the photo above, William had a very long, unobstructed, line of sight and undoubtedly should have seen Daisy.
Daisy was sure that William was speeding. Daisy remembered being hit with such force that she flew up in the air and landed hard on the pavement, suffering another impact. She felt excruciating pain.
William’s father (as he introduced himself to Daisy) was in the car. According to Daisy, he told her, “I am sorry. My son is 17-years-old and is an inexperienced driver. He got distracted.”
William’s father helped Daisy when she was on the ground. William’s mother was also in the car.
She called 911. Daisy’s sister got out of the car and ran to Daisy’s side as well. Daisy was in a lot of pain.
Driver’s Version of How the Crash Happened
According to USAA, William and his father claimed that Daisy was picking up the hose and walked right into the car.
They basically blamed her for walking into his car. USAA argued that if Daisy was concerned about the danger of a hose being in the road, she should have called 911.
USAA argued it is against the law for a pedestrian to be in the street if she is not in a crosswalk. Daisy was not in, or even near, a crosswalk when she was hit.
USAA argued that William slowed down before hitting her, and thus, he was paying attention while driving.
Punitive Damages
I told USAA that if they didn’t pay us fair value for the case, I would sue the owner of the car and the driver, William. I told them that I if sue, I will find out if William was talking on his phone, texting or surfing the internet at the time of the accident.
If he was using a cell phone, I told them I would also sue for punitive damages. Some Florida courts have allowed punitive damages when a driver was talking on a cell phone at the time of a car accident.
Medical Care and Nature of Injuries
The collision severely impacted Daisy’s delicate body. As stated above, when William hit her, she was thrown to the grown and was unable to move.
She was in excruciating pain. An ambulance came to the scene.
Daisy was immobilized and taken by ambulance to the hospital. The ambulance sent its bill to Daisy’s PIP insurer, who was also USAA.
She Went to a Hospital in West Palm Beach
At the hospital, Daisy underwent a series of tests. Her diagnosis included the following:
a. Fracture to the lower sacrum at S4 extending on the left.
Below is a stock image that I sent USAA that identifies the sacrum. I highlighted the S4 level, which is where Daisy’s fracture occurred.
She also had:
b. Acute fractures of the lateral tibial plateau with associated lipohemarthrosis and acute fracture to the right femoral condyle with associated lipohemarthrosis (large knee joint effusion with a fat fluid level).
I sent USAA a copy of the x-ray that shows her tibial plateau fracture. I added a red arrow to show the general area where the tibial plateau is located.
She also suffered:
c. Multiple injuries to her spine, including straightening of the cervical spine consistent with muscle spasms. A L5-S1 central disc bulge was also diagnosed.
She was given pain medications and put on a splint. Upon release from the hospital, she was instructed to follow up with her own physicians.
We sent the medical records and the billed charges of $15,579.27 from the hospital. This bill was reduced significantly so that her out of pocket charges were under $500 or so.
She Went to the Chiropractor
For the pain in her spine, she went to a chiropractor several times within a 50 day period. He diagnosed her with severe pain in her neck, mid and low back pain, with the pain restricting her range of motion.
Since she was unable to drive due to her injuries, they provided transportation. The treatments consisted of ultrasounds, electrical muscle stimulation, mechanical traction, cold laser and manual therapies.
During her course of treatment, due to complaints of radiating pain in her arms and legs, the chiropractor ordered MRI scans of her cervical and lumbar spine.
He also referred her to a medical doctor for further evaluation. We sent the chiropractic records and the total billed charges of $8,585 to USAA.
Since she was a pedestrian, her PIP paid 80% of this bill.
Treatment with the Medical Doctor
Daisy saw the medical doctor a little under 2 months after the accident. Her examined her. He noted that she had persistent spasms throughout the neck with reduced range of motion, pain and spasms in her mid-back, and low back and a “totally straightened lordosis.”
She also had left shoulder impingement with pain and weakness. She received an injection of Depo Medrol, 40 mg to her shoulder during this visit.
Daisy saw the doctor spine doctor again about 3 weeks later. He noted that she was suffering from pain in her neck and back accompanied by radiculopathy. He adds that despite the therapy, she had no real improvement.
She still had spasms, sagittal malalignments, pain and lacked range of motion.
He said that she has large herniated discs in the neck at C5-6 and C6-7, both compressing the spinal cord. There is a bulge at C4-6 and C6-7, touching the spinal cord and a herniation at L5-S1.
The doctor said that Daisy is now at risk for worsening radiculopathy and myelopathy.
He stated on his report that “she has a strong indication for discectomy fusion surgery in her neck at C4-5, C5-6, and C6-7, which would have approximately a $100,000 total-associated cost,” requiring six weeks in a collar and a total 3 month recovery time.
He told her to consider her options, given the risks and benefits at her age. She did not want to have surgery.
We sent the records and bill to USAA. PIP paid 80% of this bill.
She Went To a MRI Center
As I said above, Daisy’s MRI results revealed issues in her neck, including herniated discs in the neck at C5-6 and C6-7, both compressing the spinal cord. She also has a bulge at C4-6 and C6-7, touching the spinal cord.
The following image from her MRI show the herniations. We labeled the different cervical levels to show the adjuster the location of her herniations.
The lumbar (lower back) MRI shows a herniation at L5-S1 impinging upon the ventral sac and S1 nerve roots with disc material extending to the endplate of S1. At L2-L3 facet joint fluid was present, which means that there was inflammation, irritation or synovitis.
At L3-4 and L4-5, she also had disc bulges, with L4-5 impinging on the ventral thecal sac. I included an image of her lumbar MRI and sent it to USAA.
It’s below. I labeled the different levels of her spine where the herniations were.
The MRI scan had a total charge of $3,900. PIP paid 80% of it. The MRI center waived the remaining balance.
Daisy Went to an Orthopaedic Doctor
About a month after the accident, another doctor examined her for her knee pain. She complained of lateral knee pain, with stiffness and swelling.
Daisy was told to do therapy to help her get her mobility back. She was also instructed to apply ice to the injured areas and to rest.
The doctor said that it was medically necessary for her to wear a knee brace.
The doctor also ordered an MRI of the right knee.
She received a prescription for a narcotic like pain reliever, to take every four to six hours.
She saw her knee doctor again for 5 visits in the next 2 months. On her final visit, which was 3 months after the accident, she was still had pain.
Her pain was rated as a 4 on a scale from 1-10. She was told to continue doing physical therapy at home.
We sent USAA the records and total billed charges of $4,581.21, from the orthopedic knee doctor. PIP paid most of the bill.
Medical Bills
As a result of the collision, Daisy had out of pocket medical bills. The total billed charges were $34,257. However, PIP and her county health plan paid most of this.
At the time of the accident, she had PIP insurance with USAA. We sent USAA a copy of the PIP payout log, as well as Daisy’s health insurer’s lien.
Future Medical Treatment
The doctors said that Daisy will need more treatment since she has a permanent injury. As I mentioned, her orthopedic spine doctor said that she is now at risk for worsening radiculopathy and myelopathy.
He recommended a discectomy fusion surgery at C4-5, C5-6, and C6-7, with approximate costs of $100,000. Daisy is afraid and unwilling to undergo this procedure, because of the risks associated with it.
Her doctors explained that this surgery has risks, including infection and paralysis. She has been advised that with age, her condition will likely deteriorate and she may have no other choice than to undergo the surgery.
She will also need additional therapy as needed in an effort to alleviate the pain. Daisy still experiences discomfort and pain in her knee and at the fracture sites.
Pain and Suffering Claim
Daisy is a very pleasant lady. She was a very active 58-year-old at the time of the collision.
Her favorite activities were walking and going to church. She was a very happy and healthy lady.
As a result of the crash she suffered not only physically, but also financially and emotionally. This collision has been a great source of stress.
She has been in constant pain. The pain has negatively impacted her normal way of life. For example, she was unable to do many of her normal activities and home chores.
She needed help cleaning, cooking, and even bathing or dressing herself, things we tend to take for granted. She was even unable to walk her little dog as she did every day, before the 17 year old driver carelessly hit her.
To this day, she still feels pain. She does the home exercises she learned during therapy.
Daisy uses Icy Hot to help relax the muscles. She still takes pain medications.
Daisy has a massager that she uses at home. She cannot sit still for any prolong periods. She worries her condition will worsen as she ages and she will have to live in pain for the rest of her life.
USAA Paid Us $70,000 to Settle
We settled the case for $70,000 with USAA. This put about $44,000 in Daisy’s pocket, after all her bills were paid and I was paid by attorney’s fee. Most of the settlement was for her pain and suffering.
The USAA adjuster said that she though that the full value of the case was $150,000, if Daisy would have been in a crosswalk and, thus, not at fault. Although USAA denied liability, the adjuster said that she considered Daisy to be 50% at fault for settlement purposes only.
Daisy was very happy with the settlement. She found me through the internet. She was very happy that she chose my law firm.
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