PERSONAL INJURY
By Beatrice Cazeau & Cheryl Linton Barnes
What is personal injury case?
Personal injury refers to bodily injuries one suffers as a result of another person's negligence. In other words, if you have suffered some type of physical or mental injury, pain or suffering because of a condition caused by another person, or entity such as a department store, office building, shopping mall, airport, etc., you may be able to collect money for your damages.
Usually, the first thought that comes to mind when we hear the term “personal injury” is an automobile accident. Automobile accidents however, are only one example of a personal injury case. Personal injury cases may result from a variety of scenarios including, but not limited to: a defective condition in a building or on a sidewalk, food poisoning at a restaurant and even malpractice by a doctor or hospital.
The terms “slip and fall” or “trip and fall” are often used to describe accidents occurring in some type of building setting or even outdoors. In these cases the plaintiff sustains bodily injury as a result of falling or tripping due to some type of defective condition such as: wet or slippery flooring, torn carpet, cracked tile, etc. Other conditions such as poor lighting in a stairwell, or construction defects not readily visible to the ordinary person (ie. defective construction of a staircase), may also result in a personal injury case.
In every personal injury case, two elements must be proven: (1) liability of the defendant; and (2) damages, which include bodily injury as well as damages to one's personal property. An experienced personal injury attorney evaluates all the factors of liability and reviews medical evidence to determine the strength of his/her case.
Are my injuries severe enough?
There are two answers to this question. First it must be understood that every case has two sides: the defendant (the party/parties responsible for causing the injury/accident) and the plaintiff (the party/parties suffering the injuries/damages). Typically, you can expect the defense to minimize the seriousness of the injuries and damages being claimed or deny the existence of injuries entirely. In fact, insurance companies for the defendant routinely hire their own doctor to examine the injured person to determine if they are as seriously injured as claimed. The problem there is that by the time the defense doctor sees the plaintiff – the plaintiff has already undergone significant treatment and therapy and may not exhibit as many obvious signs of his/her injuries.
Nine out of ten times, the defense doctor will ultimately conclude that he/she observed no evidence of the alleged injuries during his examination of the plaintiff. Consequently, precise documentation of the history of the plaintiff's medical treatment in connection with the accident is necessary. For this reason, it is essential that an injured person obtain prompt and appropriate medical treatment from a well qualified doctor or other medical provider. Medical records prepared by all treating sources will eventually have to be produced to the defense in support of the plaintiff's personal injury claim.
Another important factor in determining the level of severity of a plaintiff's injuries is whether the plaintiff ever suffered similar injuries before the current accident occurred. If so, the defense may claim that the injuries being alleged are not a result of the accident involving their client, but was pre-existing and caused by some other source. In that case, a settlement may not be reached at all or could be very minimal if any.
How much money will I get?
In almost every case, the first question every accident victim wants to know is, “how much money can I get for my injuries/damages?” The answer is not very simple and depends on several factors, such as: whether the defendant is insured; and if so, what his policy limits are; or if no insurance exists, is the defendant solvent enough to be sued directly.
Secondly , the value of a case is also dependent upon the extent and seriousness of resulting injuries and damages. It usually takes several months of treatment and therapy before a final assessment of injuries sustained by the plaintiff can be fully determined.
Because of the many intricate factors and time involved in developing a personal injury case, people should always be leery of attorneys or others who have never worked on their case, promising to collect a specific amount of money for them in a short period of time . It is impossible for anyone to determine the actual value of a case without conducting a full investigation of the insurance, liability and damages issues and this can take several months.
How long will it take to get my money?
Usually the second question a person wants to know is, “when will I get my money?” Again, no one can promise you that your case will settle in a specified period of time. The time limit of a personal injury case varies from case to case and depends upon several factors. However, a typical automobile accident case can settle as early as 4 to 6 months. Significant delays can be expected for instance, if disputes over liability arise, if medical treatment lasts for an extended period of time or if issues regarding insurance coverage exists. The insurance company and adjuster working on the case will also impact upon the length of time a case will take.
In the event a case does not settle pre-suit, a formal lawsuit may have to be filed which can take up to 2 years or more before eventually settling or going to trial.
Why you don't pay most personal injury attorneys unless you collect a settlement?
Personal injury attorneys always advertise that “you don't owe us a penny unless we collect a settlement for you.” Sounds too good to be true, you say? It is true however and the reason this is possible is because most personal injury cases are usually taken on a contingency fee basis. A contingency fee agreement means that the attorney agrees to work on the case for free and will only collect a fee if a settlement is reached.
Why some people get more money than others for accidents that seem similar?
As discussed earlier, several factors contribute to the ultimate value of a case. Sometimes people question why so and so got “X” amount of dollars for the same type of case and they got much less. For one thing, as we discussed above, the availability and amount of insurance coverage makes a huge difference. The actual amount of policy limits sets a ceiling as to the amount of settlement. If for instance, the insurance policy in one case covers only up to $10,000 then settlement cannot exceed that amount. On the other hand if insurance coverage on a different case covers up to $100,000, settlement can be negotiated up to $100,000.
The facts of each case also affect the settlement amount. If for instance, the plaintiff is determined to be comparatively negligent in causing the accident (as in the case where both drivers in an automobile accident were equally at fault in causing the accident), or where liability is otherwise disputed or questionable, a lower or reduced settlement may be offered in comparison to each party's negligence.
The severity of injuries and damages as well as the extent of medical treatment for those injuries will also affect the value of a case. Certain out-of-pocket expenses and losses incurred by an injured party may also be considered in calculation of a settlement amount.
Every insurance company and the individual adjusters/claim handlers handle cases a little differently. Some routinely offer low-ball settlements regardless of the factors of each case, while others will not hesitate to tender policy limits upon review of the facts and evidence in a case.
No two cases are ever exactly alike and people should be cautioned against comparing their case to “so and so's” case.
Insurance Policies are complex and hard to understand and many people don't even know what they're covered for.
With respect to automobile accident cases, many people are unaware of how their automobile insurance works. In fact, most people don't ever read their policies or understand exactly what they are covered for until they've been involved in an accident. Of course by then it's too late to make changes.
Insurance policies are complex and almost impossible to comprehend. An experienced personal injury attorney usually has a good understanding of the complexities of insurance law. The attorney will examine the insurance policy for each tortfeasor and determines what coverage is provided by each.
-To Be Continued in Next Issue