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Washington law allows persons who have been hurt to recover their medical expenses even if they didn’t pay for them. But in most cases it wouldn’t be fair to allow injured persons to keep that recovery related to medical expenses if they didn’t pay for them. So the Courts created a doctrine called subrogation.

Subrogation basically means that someone who pays an expense associated with the medical care necessitated by an accident has a right to be reimbursed if the injured person recovers that expense from the person who caused the accident. But the rule is not absolute and there are some situations where the payor (usually an insurer) doesn’t have to be repaid.

Subrogation is an issue that is likely to come up at the conclusion of a case. It shouldn’t affect the decision whether to settle the case or take it to arbitration or trial. I say that because the issue’s going going to be there regardless what decision is made.

The decision whether to settle a case depends on one primary factor: will the plaintiff net more money by settling than taking the case to trial? Subrogation has no effect on that decision. The subrogation issue is the same either way. It’s just like taxation. The fact that personal injury awards are not taxed should not affect the decision whether to settle the case or take it to trial.

It concerns me when injured people fret about subrogation. It suggest that they fall into that group that values their claims based on how much they owe on their truck or how much it would take to pay off the mortgage. When those issues are discussed I know that clients are focusing on the wrong issues and are not comparing settlement to the likely range of outcomes at trial.

How much weight do you think should be given to the amount the insurer has to be paid back when making the decision whether to settle?

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