HDI-Gerling is trying to avoid independent medical examination of personal injury.
Brain injury and personal injury
On October 16, 2009, a man suffered a personal injury at work. He fell from a height of 2.5 meters and landed on his head. He suffered a brain injury. HDI-Gerling is the liability insurer for the man's employer.
HDI acknowledges liability for the personal injury and the industrial accident, but is difficult about the lasting medical consequences of the man's brain injury
Independent medical examination by a neurologist
HDI and the man therefore agreed to undergo an independent medical examination. The report of that examination was made available on December 23, 2011.
The original intention was for the independent neurologist's report to serve as the basis for the final assessment of the victim's injuries. However, nothing could be further from the truth..
The neurologist concludes in his report that the complaints the man still experiences, such as:
- tinnitus
- fatigue
- forgetfulness
- concentration problems and
- complete loss of smell and taste,
be a consequence of the accident that happened to him. Neuropsychological testing also revealed cognitive impairment.
Research at the time of the expertise did not reveal any specific objective neurological abnormalities.
HDI criticism of neurological report
After reading the report, the HDI medical advisor felt the need to ask the examining neurologist additional questions in April 2012. The man and his personal injury lawyer agreed. On May 23, 2012, the examining neurologist answered the additional questions in detail.
In July 2012, the HDI medical advisor found that there was still insufficient clarity regarding the content of the expert report (i.e., whether the man's symptoms were actually caused by the accident). The HDI medical advisor also conducted his own literature review. He reached very different conclusions than the neurologist who conducted the examination.
And then things go wrong...
The ruling doesn't clarify what was going on in the mind of HDI's medical advisor around that time. However, on December 23, 2013—a year and a half after his own conclusions of July 12 regarding asking additional questions to the examining neurologist—this medical advisor launched his own investigation.
The medical advisor, for example, writes – without notifying the victim's personal injury lawyer – to send a letter to a certain Dr. EMH van den Doel, neurologist, chair of the Neurological Expertise Working Group and board member of the Dutch Association for Medical Specialist Reporting.
The letter to Dr. Van den Doel refers to the enclosed attachments: "Documents that were also included with the expert report" and "expert report." It will become clear below that this medical advisor did not, in fact, include all the documents, and this proves legally fatal.
Dr. Van den Doel finds reporting inadequate
Dr. Van den Doel assesses the expert report and concludes: "All things considered, I find reasons to doubt the conclusions of the neurological expert report, which I do not consider well-substantiated…."
The fact that the man's GP did not refer him immediately "raises doubts about whether the trauma is serious enough to explain the patient's severe complaints."
The MRI scan showed no abnormalities: "How then are the functional abnormalities explained by the neuropsychological examination?" And: "Why, for example, did the person concerned not finish retail school?" as a criticism of the victim's sub-intelligibility level.
HDI wants new neurological research
Based on Dr. Van den Doel's findings, HDI rejects the entire content of the neurologist's report and demands a new neurological examination. On July 12, 2012, it had only found that additional questions should be asked of the examining neurologist.
HDI then wipes the floor with the examining neurologist:
“HDI states that the quality of the neurologist's research is so substandard that they no longer have confidence in this expert.”
and
“They further argue that the criticism is so fundamental that it cannot be expected that the expert will acknowledge its correctness, because it would be equivalent to admitting a professional error.”.
And all this because, a year and a half later, HDI's medical advisor, acting on his own initiative and unsolicited, sent a letter to someone who had not been involved in the settlement of this victim's personal injury claim in any way and – as it later turned out – had not been fully informed either.
HDI found to be in the wrong
The victim demands that HDI cooperate in further processing the original assessment. This includes asking the neurologist the additional questions (from HDI's medical advisor) from July 2012 and conducting a neuropsychological examination.
The judge concludes that Dr. Van den Doel did not receive all the information from HDI's medical advisor. In particular, he did not receive the supplementary letter from the neurologist dated May 23, 2012, in which he provides a detailed explanation of his expert report and conclusions.
According to the judge, this means that Dr. Van den Doel's conclusions must be disregarded because, in the judge's opinion, he did not have access to the complete file.
The fact that the HDI medical advisor drew certain negative conclusions for the victim based on different literature than the examining neurologist does not mean that the neurologist is wrong and that the report is therefore invalid, according to the judge.
Finally, the judge attaches weight to the fact that HDI waited approximately a year and a half before deciding that the neurologist's report should be disregarded. This could and should have been done sooner.
HDI is thus forced by the judge to cooperate with the further expert assessment, which involves asking additional questions of the neurologist and appointing a neuropsychologist. HDI doesn't get its way, and there will be no entirely new expert assessment.
Trouble with insurers...
Have you suffered personal injury and are you facing insurers who, in your opinion, are doing everything in their power to avoid paying out your damages? Then contact us for an initial, no-obligation – and therefore free – consultation on personal injury claims.
If we can help you, and you think it's a good idea, we'll join you in the fight against your opponent. Not for exorbitant compensation or for "American-style" situations, but for the compensation you're entitled to. And nothing less!
Van der Toorn Personal Injury is happy to assist you with this and will do its best to help. This will cost you nothing, as our costs must also be covered by the other party.
(Rotterdam District Court, 15 October 2014, ECLI:NL:RBROT:2014:8411: read here the full judgment
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When can I claim personal injury damages?
You can claim damages for personal injury due to the fault of another person injury (been injured)
Personal injury can be caused by, for example:
In addition, you may think of injuries sustained during:
- organized trip
- unsafe product or
- fall at someone else's home, in a shop or on the street
It's best not to wait too long to file a personal injury claim. It's best to do so immediately after the accident.
Even if it is not yet clear at that time what your injury and its financial consequences consist of.
However, someone else must liable and must have taken out liability insurance for this (AVP/AVB/WA).
However, even if you caused the accident yourself, you can sometimes still claim compensation for personal injury. For example, if you SVI (Passenger Injury Insurance) or SVO (Opzittende Inschadende).
Are you unsure whether and when you are entitled to personal injury compensation?
Don't hesitate to contact us now for a free, no-obligation consultation. It's free , and you'll know exactly where you stand. Afterward, you can decide for yourself what to do with our advice.
What injuries do you treat?
We can actually help you with all types of personal injury
Van der Toorn Personal Injury can help you with all types of injuries. We specialize in handling "serious personal injuries," such as:
- brain injury (ABI)
- spinal cord injury
- burns
- dystrophy
- bone fractures and
- cosmetic injury.
But of course, we are also very happy to be there for you if someone else has sustained an injury. Such as neck injuries, whiplash, back injuries, bruises, sprains, dog bites, temporary injuries, and you name it.
We cannot help with all types of personal injury
The only thing we cannot help you with is personal injury caused by:
- violence
- medical errors and/or
- situations of abuse.
In that situation, we will of course refer you to a party that is specialized in this.
Always request free, no-obligation advice on personal injury claims
Do you have questions about your personal injury? Or are you unsure if we're the right place for you?
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When should I contact you?
You don't have to! But it's in your best interest to as soon as possible contact
Only then can you be certain that there is someone who thinks solely of your interests . Because that is our job: thinking of *your* interests.
But what is: as quickly as possible?
Sometimes an insurance company will contact you very shortly after the accident. They'll ask how you're doing and also ask for all sorts of other information.
You cannot know whether that insurer is asking “too many questions” from a legal perspective. About your health before the accident and which doctors you visited. You would rather avoid that, wouldn't you? So never wait too long to engage a personal injury firm.
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If we think we can help you, we will let you know right away.
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What personal injury compensation amounts am I entitled to?
The personal injury compensation amounts you are entitled to are:
Allowances for additional assistance, such as:
- household help, shopping, taking children to school, etc.
- help in the garden and
- help with the maintenance and painting of your home.
In addition, your personal injury may have consequences for your income, such as:
- income that is not fully paid (self-employed person, temporary worker, zero-hour contract, etc.)
- no more irregular hours allowance
- no longer being able to work overtime
- missed promotions and
- missed pension accrual
Finally, you can consider other equally important personal injury compensation amounts, such as:
- Study delay
- Reintegration costs for guidance to other work
- Costs associated with admission to a hospital or rehabilitation center
- Travel expenses
- Medical expenses
- Non-pecuniary damages
- Economic vulnerability
- Statutory interest
- Furthermore, all costs that you would not have incurred without the accident…
- For example, the wages you did not receive because you could not go to work.
- Gasoline because you had to go to the hospital or the physiotherapist.
- Medicines that were covered by your deductible.
In addition, you are always entitled to compensation for pain and suffering, also known as non-material damages.
This is compensation for "loss of enjoyment of life." Your damages should compensate you for your grief, pain, and anything else that might have made you less happy than before the accident.
Unfortunately, Dutch law is not generous in awarding damages for pain and suffering. Therefore, the amounts awarded in the Netherlands are not considered "fair enough.".
If you'd like to learn more about non-pecuniary damages, click here. If you'd like to learn more about personal injury damages, click here.
Calculating non-pecuniary damages
Calculating non-pecuniary damages:
You are always entitled to compensation for pain and suffering. This is the "non-pecuniary component" of your personal injury compensation.
What is non-pecuniary damages?
Pain and suffering compensation is not in itself a “hard legal term”. It is compensation for damage that cannot be expressed in monetary terms.
So, everything that doesn't fall under additional costs or lost income. It's essentially compensation for your "mental damage.".
How to calculate non-pecuniary damages
People often ask us at the very beginning of their personal injury case how much compensation they are entitled to.
That question is actually impossible to answer. And any personal injury lawyer who claims otherwise is mistaken.
When can you calculate my non-pecuniary damages?
Your compensation for pain and suffering can only be definitively determined at the end of your personal injury case.
Only then will it be known what psychological consequences your injury has had and/or will have for you.
Because it is the psychological consequences that largely determine your compensation for non-pecuniary damages.
Important factors in calculating non-pecuniary damages
Important factors for calculating your non-pecuniary damages include:
- the nature of your injury
- the severity of your injury
- your age
- your gender
- your level of consciousness
- whether you will have permanent scars and where those scars are located
- whether you have physical limitations that affect your quality of life
- how much pain have you suffered and continue to suffer
- how long your recovery period was and
- whether you have recovered at all or whether there is permanent damage.
Indication calculation of non-pecuniary damages:
We cannot predict exactly how much your compensation for non-pecuniary damages will be.
What we can do is give you a general indication of the amount of your compensation for pain and suffering.
If this sounds appealing, contact us today for a free, honest consultation. Afterward, you can decide for yourself what to do with it.
We are happy to help you calculate and claim your compensation for pain and suffering and other personal injury damages, such as your additional costs and lost income.
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