Detailed Answer — How to choose the right demand amount for a broken arm injury under West Virginia law
This FAQ explains how to set a fair, well-documented settlement demand after a broken arm (forearm, wrist, or elbow fracture) in West Virginia. It uses simple hypotheticals to show the usual calculation methods, documents you should gather, legal rules that affect value, and practical negotiation tips.
Step 1 — Identify and total your compensable damages
Most personal-injury demands include three broad damage categories:
- Economic damages (objective): medical bills (ER, imaging, surgery, physical therapy), future medical costs reasonably expected, and lost wages or lost earning capacity.
- Non‑economic damages (subjective): pain and suffering, emotional distress, loss of enjoyment of life, and loss of consortium when applicable.
- Out‑of‑pocket costs: travel for treatment, home help, medical devices, and similar expenses.
Example (hypothetical): Jane fractures her forearm in a rear-end crash. Her billed and paid medical costs are $12,000. She expects $3,000 more for a future hardware removal surgery and rehab. She missed 3 weeks of work and lost $4,000 in wages. Measurable out-of-pocket costs total $500.
Step 2 — Calculate a starting economic total
Using the example: economic damages = $12,000 (past med) + $3,000 (future med) + $4,000 (lost wages) + $500 (expenses) = $19,500.
Step 3 — Value pain and suffering (common methods)
Insurers and lawyers commonly use one of these approaches to estimate non‑economic damages:
- Multiplier method: multiply economic damages by a factor (often 1.5 to 5). Use a lower multiplier for minor fractures that healed without surgery and a higher multiplier for complex fractures, surgery, permanent limitation, or visible deformity. In our example, a 2.5 multiplier gives $19,500 × 2.5 = $48,750 total.
- Per‑diem method: assign a daily dollar amount for pain and suffering (e.g., $100–$500/day) and multiply by the number of days from injury to maximum medical improvement (MMI). Add that to economic damages.
- Comparable verdicts and policy limits: use recent jury verdicts, settlements, and defendant insurance limits to test whether your estimate is realistic.
Which to use depends on the severity and permanence of the injury. If Jane had surgery, hardware, and a permanent 10% functional loss, a higher multiplier (3–4) is reasonable. If the fracture was closed, non‑displaced, treated conservatively and fully healed with no restriction, a lower multiplier (1.5–2) fits.
Step 4 — Adjust for liability strength and comparative fault
West Virginia follows comparative fault principles that reduce recovery by the claimant’s share of fault. When the claimant’s fault is greater than the defendant’s, recovery may be barred or reduced according to applicable rules. Be candid about any potential fault; insurers will use it to push down your demand.
Also adjust your demand if liability is unclear, witnesses conflict, or surveillance or medical gaps weaken the claim. Strong liability supports a higher demand; weak liability means a more conservative demand.
Step 5 — Consider liens, subrogation, and payments already received
Healthcare providers, Medicaid/Medicare, and private insurers may have liens or subrogation claims that reduce your net recovery. Know the likely reductions before you demand a number. If a health insurer seeks reimbursement, full billed amounts may not be collectible, but you should account for any required repayment in your demand math or demand letter.
Step 6 — Draft the demand strategy and numeric range
Best practice: pick a realistic opening demand and a bottom line settlement goal. Common approach:
- Opening demand = target value plus room to negotiate (often 1.5–2× your expected settlement). This anchors negotiations higher.
- Target settlement = your reasoned figure based on documented damages and fair valuation (e.g., the multiplier result above).
- Bottom line = smallest acceptable net recovery after liens, fees, and tax implications.
When to send a demand letter
Send a detailed written demand after you have good documentation: itemized medical bills, medical records up to MMI if possible, wage records, and clear statements about pain, limitations, and future treatment. If you must settle early because of policy limits, adjust expectations.
West Virginia-specific legal points that affect demand timing and value
- Statute of limitations: West Virginia places time limits on when you can file a civil personal‑injury lawsuit. Consult the West Virginia Code, Title 55 for the exact deadlines and exceptions: https://code.wvlegislature.gov/55/. File within the applicable deadline or risk losing the right to sue.
- Comparative fault: West Virginia’s rules on comparative negligence affect how much you can recover if you bear some fault. If a claim involves shared fault, your demand should account for a likely percentage reduction.
- Health care liens and subrogation: private and public payors may assert repayment rights. Identify and estimate any required repayments before finalizing your bottom-line demand.
Example summary (hypothetical)
Using Jane’s facts and a 2.5 multiplier: economic damages $19,500 × 2.5 = $48,750 total demand. An opening demand could be $65,000 to leave room to negotiate. If Jane had stronger facts (surgery, permanent loss), you might start at $100,000 or more depending on policy limits and juror expectations.
When to consult an attorney
Talk with a West Virginia personal-injury attorney if:
- The injury required surgery, left a permanent impairment, or caused long-term disability;
- The liability is disputed or there are serious disputes about medical causation;
- You face significant liens, subrogation, or complex insurance coverage issues;
- You are unsure how to value lost earning capacity or future medical needs.
Important: attorneys typically work on contingency in personal-injury cases. An attorney can run a demand that factors in litigation risk, likely trial awards in West Virginia, and local jury tendencies.
Short checklist before sending a demand
- Collect itemized medical bills and all medical records.
- Get a medical narrative or statement from treating physician on diagnosis, treatment, prognosis, and permanency.
- Document lost wages with paystubs and employer statements; estimate future wage loss if applicable.
- Calculate out-of-pocket costs and preserve receipts.
- Research similar verdicts, policy limits, and insurer practices for your county or region in West Virginia.
Final practical tips
- Be realistic but firm. Inflated demands without documentation hurt credibility.
- Anchor high, but justify every number with records or clear logic.
- Show how future care and permanency justify your valuation for non‑economic losses.
- Factor in negotiation costs: possible mediation, time to trial, and attorney fees.
Disclaimer: This article explains general principles and common practices. It is educational only and not legal advice. For advice about your specific situation, consult a licensed West Virginia attorney who can apply the law to your facts.
Helpful Hints
- Keep a daily pain and activity journal from the date of injury to MMI; insurers respond to contemporaneous notes.
- Obtain a clear treating-physician statement about permanency or functional limits—this greatly affects value.
- Don’t accept the first low offer without a written explanation of how the insurer calculated it.
- Ask for the insurer’s full policy limits early when limits appear low; policy-limits demands can focus settlement talks.
- Estimate net recovery after likely liens and attorney fees before deciding your bottom line.
- Preserve all evidence: photos of injuries, accident scene, and contact info for witnesses.
- File or calendar statute of limitations deadlines; missing the deadline can foreclose recovery.