MAKING A CLAIM FOR PERSONAL INJURY: What is involved? The Answers to Ten Important Questions
MAKING A CLAIM FOR PERSONAL INJURY:
What is involved?
The Answers to Ten Important Questions
LAW OFFICES Of REUBEN J. DONIG
All rights reserved
This information is intended to give a general overall idea of the process involved in making a claim for personal injuries . All cases are different, and your case may not fit the pattern set forth in the following information.
Nothing is intended as a prediction or guarantee in any way with respect to the ultimate outcome of your claim, nor is anything herein to be construed as conferring any rights, guarantees or benefits upon you with respect to your claim. Furthermore, this content shall in no way/supersede, add to, detract from, or in any way amend the rights and responsibilities of any claimant who retains the author hereof to represent him or her in any legal matter whatsoever.
There are certain risks inherent in bringing a claim for personal injuries. These risks include a risk of failing to recover any money or other compensation whatsoever or at all with respect to the claim, and further include the risk that the amount of the recovery may be less than the costs and fees for which the claimant may be responsible, and which are involved in connection with, and as a result of making the claim.
You've been injured, and you think someone else is responsible. What are your rights, and what process is involved in determining how much compensation you are entitled to receive?
This information is intended to address and answer some of the basic questions that are most frequently asked about personal injury claims.
In order for a personal injury claim to exist, someone (often called a "third party") must be liable for causing your injury, and you must have sustained damages as a result. Even if the third party's liability is clear, and the injuries and damages are significant, your claim may have little merit unless the third party has insurance, or is independently in a financial position to pay the damages to which you are entitled. (However, in certain automobile claims, applicable coverage through an "uninsured motorist" provision of your automobile insurance policy may be used to satisfy your damages claim, up to the full amount of your policy limit. Please see the separate article by Reuben J. Donig, entitled UNINSURED MOTORISTS - The Answers to Six Important Questions About Your Automobile Insurance Policy.)
Most claims for personal injury arise because someone was injured as a result of someone else's negligence. However, there are sometimes other legal reasons which can give rise to liability. The most common legal grounds for imposing liability are the following:
The vast majority of personal injury claims are based on a claim of negligence (fault) on the part of the third party, (or "tortfeasor" in legal parlance). Negligence of the tortfeasor, which directly leads to the injury, is the basis of probably more than ninety percent of personal injury claims. However, there are several well-recognized exceptions, where liability can be imposed against the third party, even in the absence of negligence. Some of those additional grounds are discussed below:
2. Strict liability:
Strict liability is liability, which is imposed by law on a party, without regard to his or her negligence. This kind of liability can be imposed under circumstances where the liable party is legally responsible for the fault of someone else, usually due to the relationship between them. Examples of strict liability are:
- Employers, when injuries have been caused to others by the fault of their employees;
- Merchants, wholesalers, and sometimes manufacturers, where persons have been injured by faulty products;
- Parents, in some instances where a minor child has caused injury to third party;
- Owners of animals with known dangerous propensities, where the animal injuries someone.
One who is liable without regard to negligence is held to be "strictly liable."
3. Contractual liability:
A party can legally contract to be responsible for paying damages to an injured party. This kind of situation is most commonly found in the area of insurance, where an insurance carrier agrees to be responsible for payment of damages pursuant to a contract or insurance policy.
The term "damages" means the financial or monetary equivalent that is necessary to measure and compensate for your losses. Generally, there are two measures of damages; economic or "special" damages, and non-economic or "general" damages. (A third measure of damages, called "punitive" damages is intended to punish a wrongdoer, and is not tied in to the injured party's losses. Punitive damages are rarely imposed, and will not be discussed here.)
1. Economic damages:
Economic damages are financial losses that are experienced by the injured person. They most usually consist of past and reasonably certain future medical expense, and past and reasonably certain future income losses, and diminution of earning capacity. Assorted additional elements that frequently are included in economic damages include transportation, and household help incurred during a period of disability, and damage to property.
2. Non-economic damages:
These damages cannot be financially quantified, and usually include things such as pain and suffering, loss of use of a body part, loss of enjoyment brought about by a change of lifestyle, and mental and emotional upset caused by any of these aspects.
If a single tortfeasor can be shown to be solely and completely at fault for causing the accident, he or she will be one hundred percent liable and fully responsible for all reasonable and foreseeable damages which you are legally entitled to recover. If another, separate third party has also behaved negligently and thus contributed to the occurrence, liability for your non-economic damages will be apportioned between them in direct proportion to their respective degree of fault. (However, they will remain "jointly and severally" liable to you for all of your economic damages, meaning that you can collect your total economic damages from them in any combination of amounts that is available.) Finally, if you are found to be partially at fault for causing the accident, or for failing to mitigate your damages afterwards, your entitlement will be reduced accordingly.
The handling of the claim involves a number of steps, from determining whether the claim is viable through the final settlement or other conclusion of the claim. The initial steps which determine whether or not your claim can be settled without suit are the following:
1. Determining the viability of the claim:
Your attorney will conduct an initial interview to get the basic information about your claim. Afterwards, he or she will take the necessary steps to obtain confirming additional information, such as requesting a copy of an accident report, obtaining a copy of your related medical records, obtaining records from your employer or business, hiring an investigator to ascertain the presence and observations of witnesses, and other tasks which are reasonably calculated towards establishing the full amount of your damages.
2. Analyzing the settlement value of the claim:
Proper handling of a case at this stage includes getting a full assessment of your injuries, prognosis, past and future medical costs which will, or are likely to be incurred, getting a medical assessment as to the impact that your injuries and limitations will have on your earnings, ability to perform your job, your household duties, and to engage in your daily activities. It is essential that all aspects, past and future, of your medical condition, your earnings and income potential, and your other out-of-pocket expenses, which relate to your injuries, be fully explored.
In cases involving more then the most minor injuries, appropriate analysis of the dollar figure, which fairly represents compensation for your pain and suffering, (general damages) can be quite complex. A proper determination of what constitutes fair compensation for pain and suffering usually requires skill, research, and years of experience and training.
3. Attempting to settle the claim without bringing suit:
After completing the initial investigation and assessment of your claim, your lawyer will attempt to work with the insurance representatives for the other parties to see whether the parties can come to agreement regarding liability and damages. A case which is properly analyzed and developed in this fashion can often be settled favorably without need for litigation.
4. Filing suit and initiating litigation:
If the case cannot be settled amicably, or if the statute of limitations is about to expire, it is necessary to file suit to protect and move forward with the claim.
A lawsuit must be filed if it appears that your case cannot otherwise be successfully settled and concluded. Furthermore, in order to protect your interests, you are required to file a lawsuit within the legally prescribed period of time, unless your case has already been successfully settled. In most cases, that period of time is two years from the date of the injury. However, different, and sometimes shorter periods do apply, particularly where a defendant is a governmental entity, or an agency of a governmental entity.
A lawsuit starts the path towards ultimate resolution of the case, either by trial, or, in most cases by a settlement achieved prior to trial.
A lawsuit involves a number of different procedural steps and aspects. The following is a list of the most common ones:
1. Drafting, Filing, and Serving the Lawsuit:
The lawsuit itself must be properly drafted, and must contain the necessary allegations against the properly designated defendants. Failure to meet these requirements subjects the lawsuit itself to attack. The papers must be filed in the appropriate court, and within the prescribed period of time allowed by law. After filing, a copy of the lawsuit and a properly prepared summons must be delivered ("served") on the defendants.
Completion of this process requires the defendant to answer the complaint, and brings the defendant before the court.
2. Discovery and Investigation:
After a properly prepared lawsuit has been filed and served on the defendants, the process known as discovery begins. Discovery is the process by which each side obtains information about the basis for the other side's claims and/or defenses. Since discovery responses are answered under oath, there are stringent requirements for giving truthful and complete responses, and potentially serious penalties for failure to do so.
Remember, other than for very rare exceptions, your attorney will be with you and will assist you in every aspect of responding to discovery. And while you are supplying responsive information to the other side, your attorney will be conducting discovery against the defendants as well.
The following are the generally utilized forms of discovery:
Depositions are a procedure where the attorneys are permitted to ask questions of the parties and other witnesses, and to require answers under oath. Depositions are usually taken in person, in the lawyer's office or another agreed-upon place. The questions and answers are taken down stenographically by a certified court reporter, and a transcript of the deposition is prepared for future use and reference.
Interrogatories are written questions which must be answered in writing, under oath, usually within thirty days. Because the procedure is less conducive than depositions towards obtaining information on the ultimate facts, interrogatories are usually used to obtain foundational information, and the names and identities of essential witnesses.
C. Requests for Admissions:
Requests for admission are foundational questions used to determine and frame the foundational issues of the case.
D. Requests for inspection of documents and things:
This discovery device is a very useful tool, requiring the responding party to gather together and furnish to the requesting party all manner of documents which in any way pertain to the relevant issues, as designated in the request. Examples of such documents would be photos of the accident scene, photos of damage, x-rays and medical records, business and personal income records, diaries and journal entries, and the like. Except for certain privileged documents, practically any category of documents may be requested and obtained through his discovery device, so long as the documents requested are reasonably relevant to the issues in the case.
E. Defense medical examinations:
Persons making a claim for injuries may reasonably be subjected to a physical examination by a doctor of the defendants' choosing, in order to establish a position as to whether the injuries are related to the accident, whether the injuries claimed are real or exaggerated, and to obtain a prognosis.
3. Retaining Experts:
Experts are designated and are retained to offer opinions on matters relevant to the claim. Typically, experts in a personal injury claim might include doctors, accident reconstruction experts, economists, accountants, and vocational rehabilitation specialists. This list is not all-inclusive.
It is usually the attorney's role to locate, retain and communicate with the experts retained to help you present your claim. However, your own doctor or accountant or similar professional may sometimes be designated and used as an expert, where appropriate.
4. Alternative Dispute Resolution:
Even after suit has been filed, cases sometimes can be resolved through a means other than litigation. The most typical of these methods are arbitration and mediation.
Arbitration is a system where a decision on the case is made by an arbitrator. This process can be utilized either by agreement between the parties, or the court can order the parties to go to arbitration as a procedural step in the lawsuit.
When parties agree to arbitrate their dispute, they usually agree to be bound by the result, thus putting an end to the claim. Judicially ordered arbitration results, on the other hand, are usually not binding, and any party to such an arbitration procedure can request that the matter be placed back on the trial calendar simply by making a timely request to the court.
Mediation is a process where the parties agree to try to resolve their differences with the assistance of a trained professional, called the mediator. Mediators are usually lawyers or retired judges who have special expertise in the field of personal injury claims. The mediator does not have the authority to render a decision, force a result on the parties, or to make orders.
5. Settlement conferences:
As the case draws near to trial, the court will require the parties to engage in settlement conferences, which are overseen by a settlement conference judge. Although the judge cannot absolutely force the parties to settle their case, the judge usually uses the court's considerable influence to attempt to convince the parties to settle. Cases which are still pending usually are settled through this process.
6. Pre-trial motions:
A motion is a procedure where a party to a lawsuit applies to the court for a ruling on a particular issue. Motions are typically sought to allow the "moving party" to take certain action, or to have the court order the other side do something it has refused to do, or to ask that the court itself take certain action with regard to the case.
Trial offers the parties the last resort to resolve their case. Trial involves the use of testimony by the parties and their experts and other witnesses. Trial can be either to a jury or to the court directly. The process is costly and high risk, and more than ninety percent of all lawsuits, which are filed, are settled without trial.
VIII. HOW MUCH WILL IT COST ME TO BRING A CLAIM?
Costs will always be involved in bringing a claim. At the very least, you will need to obtain a copy of your relevant medical records, and will be charged a copying fee. Even if you do not need to file suit, in most cases, it will be necessary to obtain at least one medical report from the doctor primarily involved in treating you for your injuries. Charges of $500.00 or more are not uncommon for such reports. If other experts are needed to establish important elements of your case, you will need to pay for them as well.
If you need to pursue a lawsuit, the costs will rise dramatically. You will lose a measure of control over the costs, because they will be largely governed by the tactics of the other side. Depositions, filing fees, copying charges and the like can add up to a significant amount. The costs and charges of experts frequently constitutes the greatest expense in litigation.
As a general rule, if you are able to settle your case prior to trial, you should anticipate that your costs will be approximately ten percent of the total amount you are hoping to achieve as a result. The costs will go up significantly if the case actually goes to trial.
Additionally, if you retain an attorney on a contingency basis, you should expect to be charged anywhere from one-third to forty percent of your settlement as a fee.
IX. WHAT ARE LIENS, AND HOW ARE THEY HANDLED?
A lien is a legal device for securing a money claim. In personal injury situations, liens usually arise as a result of a written agreement between the injured person and his or her health insurance carriers or providers. The claimant's attorney usually receives a lien on the file as well, in order to secure his or her right to receive a fee from the personal injury settlement or judgment proceeds.
By placing an effective written lien on the file, these creditors of yours can receive payment or reimbursement directly form your monetary recovery.
Typical examples of liens are claims from health care insurers who have provided you with benefits related to treatment for your injuries from the subject accident. An insurance carrier's right to place a lien against your personal injury claim file is usually provided for by the health insurance policy itself. Thus, even though you have paid insurance premiums in order to purchase your health coverage benefits, the carrier can often assert a right to be reimbursed for medical payments it has made on your behalf. And if Medicare or Medical have paid for your treatment, the law gives these agencies a right of reimbursement from your financial recovery against the person responsible for your injuries.
If you do not have adequate health insurance, your health care providers may also require that you sign a lien, as a condition of continuing to provide treatment.
Liens can sometimes be successfully negotiated and reduced by your attorney, thus giving the client additional financial benefit from the gross settlement.
X. SHOULD I RETAIN AN ATTORNEY?
You will usually have a better result with an attorney than without one. However, this may not always mean more money in your pocket. In rare instances, fees and costs may exceed the added financial benefit that an attorney brings to the case.
For the smaller cases, (having a total value of less than $10,000) it is often advisable to attempt to resolve the claim directly with the insurance company, and without an attorney. Even in cases having an apparent value of up to $15,000, an attorney may be reluctant to take all but the most straightforward of cases (those where both liability and the nature and extent of injury is clear).
In most cases, you will usually benefit from retaining an attorney.* Your benefits generally will include the following:
- Most of the time, your net recovery will be greater than if you had handled the claim yourself;
- Your rights will be protected, and you will not lose them by failing to take the necessary or timely action;
- Your attorney will explore the necessary aspects of your case more fully than you can on your own, and these far reaching aspects will be factored into the evaluation and settlement of your claim;
- You will be freed from the responsibility of taking care of time-consuming and confusing paperwork which is a large part of every injury claim;
- Finally, in most cases, you will have the peace of mind of knowing that your claim has been handled professionally, and that you obtained a fair result.
*This is not intended as a guarantee of any result in any particular case. Every case is different and any case can ultimately have an adverse result, including the result that the party bringing a claim may ultimately achieve no monetary recovery, or the result that the claimant is responsible for fees and costs in an amount which exceeds any monetary recovery achieved.