What to do if I was in an auto accident in which I was struck head on by a driver who had fallen asleep but not all of the proper medicals test were performed?

UPDATED: Aug 21, 2013

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What to do if I was in an auto accident in which I was struck head on by a driver who had fallen asleep but not all of the proper medicals test were performed?

I suffered a fractured foot, broken sternum and some seatbelt related injuries. Litigation is pending vs the other driver. The hospital never performed an MRI despite the fact that I lost consciousness at the scene of the accident. Now a neurophysiologist has ordered one and while the results are still pending, he has conducted other tests and says my symptoms are consistent with a frontal lobe injury. Was it malpractice on the part of the hospital to not conduct an MRI? I have heard of cases where the spouse of an accident victim has also independently pursued litigation for pain and suffering.

Asked on August 21, 2013 under Malpractice Law, Virginia


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Whether the hospital not performing an MRI is malpractice will be determined by your neurophysiologist's medical reports.  If the medical reports support a malpractice claim, prior to filing a lawsuit, it may be possible to settle the case with the hospital's insurance carrier.  Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable hospital would have exercised under the same or similar circumstances to prevent foreseeable harm).

When you complete your medical treatment and are released by the doctor or are declared by the doctor to be permanent and stationary which means having reached a point in your medical treatment where no further improvement is anticipated, obtain your medical bills, medical reports, and if applicable, documentation of any wage loss.  Your negligence claim filed with the hospital's insurance carrier should include these items.  Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of your head injury and will be used to determine compensation for pain and suffering, which is an amount in addition to your medical bills.  Compensation for wage loss is straight reimbursement.  If the case is settled with the hospital's insurance carrier, NO lawsuit is filed.  If you are dissatisfied with settlement offers from the hospital's insurance carrier, reject the settlement offers and file a lawsuit for negligence against the hospital.  If the case is NOT settled with the hospital's insurance carrier, your lawsuit for negligence against the hospital must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

As for pain and suffering claimed by a spouse, if the spouse was present at the scene of the accident, that may be possible, but otherwise it would not be applicable.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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