Can Loss Of Sensation Increase Damages?
The loss of sensation, also known as paresthesia, is a particularly concerning injury in motorcycle accident cases. It’s not simply a matter of pain; it represents a fundamental change in how the body interacts with the world. This can have a profound impact on a rider’s quality of life, and, crucially, it often leads to significantly higher damage awards. The reason is simple: permanent nerve damage is considered a ‘catastrophic’ injury by insurance companies, and they recognize the long-term costs associated with it.
Unlike a simple fracture that can be quantified by X-rays and healing timelines, loss of sensation is often subjective and requires extensive medical documentation to prove. This is where having an experienced attorney is critical. We’ve seen cases where insurance adjusters attempt to downplay the severity of nerve damage, claiming it’s ‘soft tissue’ or ‘psychological.’ However, a thorough understanding of neurological assessments, MRIs, and nerve conduction studies can reveal the true extent of the injury and build a compelling case for maximum compensation.
As a personal injury attorney practicing in San Diego for over 13 years, I’ve helped countless motorcyclists navigate the complexities of accident claims. I was trained by a former insurance defense attorney, giving me intimate knowledge of how insurance companies evaluate, devalue, and deny claims. This insight allows me to anticipate their tactics and build a strong defense against them, ensuring my clients receive the full compensation they deserve.
How Does Loss of Sensation Affect a Motorcycle Accident Claim?
Loss of sensation directly impacts several key components of a motorcycle accident claim. First, it significantly increases the value of the ‘pain and suffering’ component. Juries are more likely to award higher damages when the injury results in a permanent loss of function or quality of life. Second, it often leads to increased medical expenses, including ongoing physical therapy, nerve stimulation treatments, and potentially even surgical interventions. Finally, it can result in lost wages if the rider is unable to return to their previous occupation or perform their job duties effectively.
Documenting the loss of sensation is paramount. This includes detailed medical records from neurologists, pain management specialists, and physical therapists. It also involves keeping a journal of daily challenges, limitations, and the impact on the rider’s overall well-being. We often recommend independent medical evaluations (IMEs) to obtain an unbiased assessment of the injury’s severity and long-term prognosis.
Furthermore, proving the connection between the accident and the loss of sensation is crucial. The defense will likely argue that the injury was pre-existing or caused by something other than the collision. Establishing a clear causal link through medical testimony and accident reconstruction evidence is essential to securing a favorable outcome.
What Types of Medical Evidence are Needed to Prove Loss of Sensation?
Establishing a strong medical foundation is the cornerstone of any claim involving loss of sensation. Beyond the initial emergency room records, a comprehensive evaluation by a neurologist is critical. This typically includes nerve conduction studies (NCS) and electromyography (EMG) to assess the function of the affected nerves. MRIs can help identify any structural damage to the spinal cord or peripheral nerves.
Detailed reports from physical therapists documenting the rider’s range of motion, strength, and sensory deficits are also essential. We often work with vocational rehabilitation specialists to assess the impact of the injury on the rider’s ability to work and earn a living. Finally, a pain management specialist’s assessment can provide valuable insight into the severity of the pain and the effectiveness of various treatment options.
It’s important to note that subjective complaints alone are often insufficient to prove loss of sensation. Objective medical evidence is crucial to demonstrating the extent of the injury and its impact on the rider’s life. We work closely with medical experts to ensure that all necessary tests are conducted and that the results are accurately interpreted.
Can a Defense Attorney Successfully Challenge a Claim of Loss of Sensation?
Yes, defense attorneys will routinely attempt to challenge claims of loss of sensation. Common tactics include questioning the rider’s credibility, arguing that the injury was pre-existing, or suggesting that the symptoms are psychological in nature. They may also hire their own medical experts to conduct an independent medical evaluation (IME) and provide a conflicting opinion.
To counter these tactics, it’s crucial to have a strong medical foundation, as discussed above. We also conduct thorough background checks to identify any pre-existing conditions and gather evidence to refute any claims of malingering or exaggeration. Furthermore, we often depose the defense medical expert to challenge their methodology and qualifications.
It’s important to remember that insurance companies often rely on aggressive defense tactics to minimize payouts. Having an experienced attorney who understands these tactics and knows how to effectively counter them is essential to protecting your rights and securing the full compensation you deserve.
How Does California’s Comparative Fault Law Impact a Claim with Loss of Sensation?
California operates under a ‘pure’ comparative fault system, meaning that even if a rider is partially responsible for the accident, they can still recover damages. However, their total compensation will be reduced by their percentage of fault. This can be a complex issue, particularly in motorcycle accident cases where the defense often attempts to blame the rider for the collision.
For example, if a rider is found to be 20% at fault for the accident, their total damages will be reduced by 20%. This means that if their total damages are $100,000, they will only recover $80,000. It’s important to note that the defense has the burden of proving the rider’s negligence. We work closely with accident reconstruction experts to challenge any claims of rider fault and minimize the impact of comparative negligence on the final settlement.
The presence of loss of sensation does not automatically absolve the rider of fault. However, it can be a mitigating factor in determining the overall percentage of responsibility. We argue that the injury itself may have impaired the rider’s ability to control the motorcycle, contributing to the accident.
What is the Role of an Independent Medical Evaluation (IME) in a Motorcycle Accident Claim?
An Independent Medical Evaluation (IME) is an examination conducted by a physician hired by the insurance company to provide an unbiased assessment of the rider’s injuries. While the IME is supposed to be ‘independent,’ it’s important to remember that the physician is ultimately paid by the insurance company and has a vested interest in minimizing payouts.
We strongly recommend that riders attend their IME appointment with an attorney present. We can ensure that the physician asks the appropriate questions, conducts a thorough examination, and accurately documents the rider’s symptoms and limitations. We also review the IME report carefully for any inaccuracies or biases.
If we disagree with the IME’s findings, we can challenge the report through depositions and expert testimony. We often hire our own medical experts to conduct a second opinion and provide a counter-assessment of the rider’s injuries. It’s important to remember that the IME is just one piece of the puzzle, and we will fight to ensure that the rider receives a fair and accurate evaluation of their damages.
What Should I Do if the Insurance Company is Delaying My Claim?
Insurance companies often employ a variety of delay tactics to discourage riders from pursuing their claims. These tactics can include requesting excessive documentation, scheduling unnecessary interviews, and simply failing to respond to requests for information. If you suspect that the insurance company is deliberately delaying your claim, it’s crucial to take immediate action.
First, document all communication with the insurance company, including dates, times, and the names of the individuals you spoke with. Second, send a formal demand letter outlining your damages and a deadline for response. Third, consider filing a complaint with the California Department of Insurance.
Finally, and most importantly, consult with an experienced attorney. We can navigate the complexities of the claims process, communicate with the insurance company on your behalf, and file a lawsuit if necessary to protect your rights. Don’t let the insurance company bully you into accepting a lowball settlement. We are here to fight for the full compensation you deserve.
How Long Do I Have to File a Lawsuit for a Motorcycle Accident in California?
In California, you have a **two-year** window from the date of the motorcycle accident to file a lawsuit for personal injury. Because evidence at a crash scene—such as skid marks or GoPro footage—can disappear quickly, immediate filing is critical to preserve the integrity of the claim. CCP § 335.1
It’s important to note that the statute of limitations can be complex, particularly in cases involving government liability or minors. If the accident involved a government-owned vehicle or a dangerous road condition, you may have a shorter deadline to file a claim. We can advise you on the specific statute of limitations applicable to your case and ensure that all necessary deadlines are met.
Don’t wait until the last minute to file a lawsuit. The sooner you take action, the better your chances of securing a favorable outcome. We can begin investigating your claim immediately and gather the evidence necessary to build a strong case.
What if the At-Fault Driver Was Borrowing a Vehicle?
If the at-fault driver was operating a vehicle borrowed from a friend or family member, you may be able to pursue a claim against both the driver and the vehicle owner under the theory of negligent entrustment. This is a vital tool for recovery when the at-fault driver was operating a vehicle borrowed from a friend or family member. CACI No. 724
To establish negligent entrustment, we must prove that the vehicle owner knew or should have known that the driver was unfit or incompetent to operate the vehicle. This can be demonstrated by evidence of prior traffic violations, a history of reckless driving, or a lack of a valid driver’s license.
Pursuing a claim against the vehicle owner can significantly increase your chances of recovering full compensation, particularly if the driver has limited insurance coverage. We can investigate the vehicle owner’s background and gather evidence to support a claim of negligent entrustment.
What if the At-Fault Driver Left the Scene of the Accident?
If the at-fault driver fled the scene of the accident, it’s crucial to report the incident to the police immediately. The police will investigate the accident and attempt to identify the driver. Even if the driver is never apprehended, you may still be able to recover damages through your own Uninsured Motorist (UM) coverage.
California law requires insurers to offer UM coverage, which protects riders in the event of a hit-and-run accident. For motorcyclists hit by a driver with minimum or no insurance, this coverage allows you to recover damages directly from your own policy up to your selected limits. Ins. Code § 11580.2
We can help you navigate the complexities of the UM claims process and ensure that you receive the full benefits you are entitled to. Don’t let a hit-and-run driver escape responsibility for their actions. We are here to fight for your rights.
What if I Was Wearing a Helmet and Still Suffered a Head Injury?
California is a universal helmet law state, requiring all riders and passengers to wear a safety helmet that meets DOT standards. While a violation may be used by defense counsel to argue for a reduction in damages via comparative fault—specifically regarding head or neck injuries—it does not bar a rider from seeking recovery for other injuries caused by a negligent driver. CVC § 27803
The fact that you were wearing a helmet demonstrates your reasonable care and attempt to mitigate your injuries. However, the defense may argue that the helmet failed to protect you from the full force of the impact, contributing to the severity of your head injury.
We can investigate the helmet’s performance and potentially pursue a product liability claim against the manufacturer if it was defective. We will also argue that the driver’s negligence was the primary cause of your injuries, regardless of whether you were wearing a helmet.
