I want to tell you about a phone call I had. I guess the topic today is: How could my case possibly settle for less than my medical bills? That sounds crazy. Well I'm going to explain to you why sometimes cases will settle for less than the total amount of your medical bills.
So a guy called me, really mad at his attorney and he wanted to switch attorneys. I do what I always do in that situation. I try and defuse the situation, because a lot of times it's the right decision to switch attorneys and other times it's the wrong time to do it and you shouldn't do it. So it's a case-by-case situation. What happened here was that, fella got an offer, his medical bills were around twenty thousand dollars, his offer to settle the case was about fifteen thousand.
And according to him, his lawyers told him "you know your case has some real challenges, this is the best you're ever going to get, take it or leave it, if you don't want the money, find a different lawyer". Well that's not a very nice way for a lawyer to explain a rough situation to a client, so I don't blame the gentleman for being upset about it. Your lawyer shouldn't talk to you that way, that's not very nice. That's sort of what was happening under those circumstances as unfortunate as it was.
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At first I'm like, "well that doesn't sound right". I mean most cases ideally are going to settle for more than just medical bills. Ideally that's what you want to happen. You want them to settle for more than just the medical bills. And then I asked them some questions. Here's what happened, he was in a car accident where it was a question of lights. Somebody ran the red light either the client did or the defendant did.
The problem is my client was alone in his car and the defendant had a passenger. So according to the insurance company, the passenger and the driver in the other car said our guy ran the red light, our guy says that the other car ran the red light. So the problem is, we got two witnesses against one. Now a lot of times, in those situations the insurance company won't make any offer at all. Because they know that if you go to trial and the other side has two witnesses and you have one, who's the jury going to believe? That's problem number one.
Problem number two is, after the car crash, the client went to the emergency room. Got checked out, got x-rays, no broken bones, didn't even prescribe pain medicine, told him to return to the ER if he was feeling any pain. Then about a month went by before he finally went to his family doctor and said "ever since the car accident, my neck has been hurting".
Well that's what we call a treatment gap. Insurance companies love it because it's a good defense. The reason they love it is, in front of a jury, how injured is the jury going to think you are if you wait a month to follow up with a doctor? The pain must not be very bad if you wait a month. It's a practical matter you and I both know that there are people who hate going to the doctor, who are tight on money, don't have health insurance or have a health insurance plan where there's a ton of out-of-pocket before you even benefit from the health insurance. And just some people hate going to the doctor. I'm one of them, I hate to say, it I'll walk around in pain for two months before I go to the doctor. But in front of a jury, it really hurts your chances at trial.
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Just by talking to the client for a few minutes I had to recommend to him that he just settle the case. Is it all gloom and doom? Do the doctors get all the money? No, that's not how it works. Usually the cases breakdown where the settlement amount is about a third of it goes to the lawyer, about a third of it goes to the client, about a third of it goes to the doctors. Those are general guidelines. Sometimes I'm able to cut great deals with doctors who have liens in a case and put way more money in my client's pocket. Obviously that's my job, it's not my job to overpay doctors.
And a lot of times in rough cases, I'll cut my attorney's fee to put more money in the client's pocket. My friends yell at me and say "don't do it, you're an excellent lawyer, you shouldn't be cutting your fee for anybody". Well, thank you it's a nice compliment, but I don't feel comfortable taking more money than my injured client gets in some of these cases, so that's why I'm willing to do it. And if it's what is required to seal the deal in a tough situation, then I'm willing to do it.
So is it possible that you might get an offer and you should settle for less than medical bills? Well the answer is yes. But there better be a good reason for it and you better have an attorney willing to do the leg work to put as much of that money in your pocket as possible.
Well that's what we call a treatment gap. Insurance companies love it because it's a good defense. The reason they love it is, in front of a jury, how injured is the jury going to think you are if you wait a month to follow up with a doctor? The pain must not be very bad if you wait a month. It's a practical matter you and I both know that there are people who hate going to the doctor, who are tight on money, don't have health insurance or have a health insurance plan where there's a ton of out-of-pocket before you even benefit from the health insurance. And just some people hate going to the doctor. I'm one of them, I hate to say, it I'll walk around in pain for two months before I go to the doctor. But in front of a jury, it really hurts your chances at trial.
Now there were two other problems with the case. It involves personal information from the client and even though I'm not identifying the client by name, I don't feel comfortable talking about the other problems with the case. My point is, we have four problems with the case and it's definitely a case that if we took it to trial, we could lose, out-and-out lose. We could out-and-out lose just based on two witnesses versus one.
Several recurring reasons. Disputed liability where the other side has more witnesses or stronger evidence and the jury could plausibly find against you. A treatment gap of weeks or months between the accident and follow-up care that lets the insurer argue your injuries were not serious. Prior medical history that complicates the causation argument. Low available insurance coverage from the at-fault driver (Illinois only requires a statutory minimum that often falls short of real medical bills). Significant comparative fault assigned to the claimant. When several of these factors stack up, the practical case value may be less than the bills - and the right move is sometimes to take the offer rather than risk losing at trial.
Cases with multiple problems stacking on top of each other are the highest risk: a 'two witnesses against one' liability dispute where the other side has more evidence, plus a treatment gap, plus a low policy limit. Soft-tissue car accidents where the medical bills got large but the underlying injury is hard to demonstrate objectively. Cases involving claimants with significant pre-accident medical history that the carrier will use to argue causation. Cases against minimum-policy drivers with no other available coverage source. Any one of these factors alone can be managed; when several combine, the practical case value can drop below the bills.
Often yes. A case with serious liability problems is rarely worthless - insurers regularly pay nuisance value or modest settlements on cases they could potentially win at trial because trying a case costs them money even when they win. But the recovery in those cases will be lower than what the medical bills alone would suggest, and the strategy shifts from maximizing value to securing a reasonable resolution and aggressively negotiating the medical liens so the client keeps as much of the settlement as possible.
A treatment gap is a meaningful break between the accident and when you got medical care - going to the ER on the day of the crash, then waiting weeks or months before following up with a doctor about ongoing symptoms. Insurers and juries treat treatment gaps as evidence that the injuries were not serious - 'if you were really hurt, you would have gone to the doctor sooner.' The argument is not always fair (people skip care because they hate doctors, lack insurance, or have high deductibles), but it works in front of juries. Closing the gap quickly with documented follow-up care matters.
Yes - and in cases where the settlement is less than the bills, that negotiation is often the most important work a lawyer does. Medical providers, hospital liens, health insurance subrogation, Medicare and Medicaid liens, and ERISA plans can all be negotiated down. Some providers accept significant reductions when the settlement is limited. Some liens can be reduced or eliminated entirely depending on the legal framework. Aggressive lien negotiation is one of the levers that determines how much money actually lands in the client's pocket at the end of a tough case.
Sometimes, yes - when the alternative is losing at trial and getting nothing. The decision depends on the strength of the liability case, the available insurance, the realistic jury verdict range if the case went to trial, the medical lien picture, and the client's risk tolerance. A good attorney will walk through all of this honestly and let the client make the call, not pressure them into taking the first offer. If your current attorney is presenting only one option without explaining the alternatives, get a second opinion. Call 312-500-4500 - the consultation is free.
Sometimes yes, sometimes no - and the answer depends on whether the lawyer is recommending a low settlement because the case is actually difficult or because they are not putting in the work. A confidential second opinion costs nothing. The new attorney typically negotiates the prior attorney's fee out of the contingency fee at the end of the case so the client is not paying double. Red flags: the lawyer pressures you to take the offer without explaining the reasons, the lawyer is hard to reach, the lawyer talks to you disrespectfully, or the lawyer has not tried to negotiate the medical liens. Communication problems alone are rarely a reason to switch; substantive case-handling problems often are.
Two years from the date of injury for most Illinois personal injury claims under 735 ILCS 5/13-202. Medical malpractice claims have their own two-year discovery rule with a four-year statute of repose. Claims against governmental entities or transit authorities have shorter notice deadlines under the Illinois Tort Immunity Act - sometimes as short as one year. These deadlines are strict. If you are weighing whether to settle a difficult case or push toward trial, the filing deadline matters because once it passes the case is over no matter how strong it was on the facts.
Scott DeSalvo founded DeSalvo Law to help injured people throughout Chicago and surrounding suburbs. Licensed to practice law in Illinois since 1998, IARDC #6244452, Scott has represented over 3,000 clients in personal injury, workers compensation, and accident cases.
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