Personal Injury Claims FAQs - Part 1
What does California Law say about recovery for injury to a husband or wife by the spouse who was not physically harmed but, is certainly suffering from having a spouse who is no longer able to do those things that they were able to do prior to the incident? Is it possible to obtain a money damages award if you were not directly hurt but, your spouse was injured and this severely impacted your life? As a personal injury attorney in the Golden State that has represented hundreds of married persons in the past 18 years, this is a question that I am frequently asked. The simple answer is YES. Under CA law, a spouse is entitled to be compensated for the disruption to their lifestyle caused by the personal injury or wrongful death of their husband or wife as follows:
California Civil Jury Instruction 3920 states that if an award is made to a personal injury victim and that victim is married, the jury must also decide how much money will reasonably compensate the victim’s husband or wife for “the loss of companionship and services” (also known as “loss of consortium”) including:
- The loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support; and
- The loss of the enjoyment of sexual relations [or the ability to have children].
The law further provides that money damages must be awarded not only for what the husband or wife has suffered to date as of the time of a jury verdict but, also for the harm that they will sustain in the future. Furthermore, this is considered a “non-economic” damage award (i.e. separate and apart and in addition to any amount awarded for out of pocket costs like medical expenses or lost wages). Because it is “general” damages, the jury must simply decide an amount without reducing that amount to “present cash value” (i.e. the value as of present day).
Just like with the award of “pain and suffering” and related “non-economic” or “general” damages to the actual, injured person, there is no standard formula for calculating an amount that is “reasonable” to compensate the spouse. In fact, the portion of the instruction read to the trier of fact on figuring this sum states as follows:
“No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.”
Obtaining good sound legal advice from a Counselor at Law is important for both the person injured and their mate. Oftentimes, persons attempting to represent themselves will be presented a settlement release agreement with two signature lines (one for the victim and one for their spouse). They are told, “It’s just routine to have married people sign these things together”. They are never provided information that the award for the husband or wife of the injured victim is separate and in addition to the bodily injury compensation of the person injured. Once the spouse signs, they release all further claims and are forever barred from seeking any additional monies. Furthermore, presenting a claim for loss of consortium and making sure that this claim is fully valued requires a lawyer willing to sit down with both spouses and really get to know the nature and extent of their relationship so that the loss of what was a loving and caring marital bliss and the amount that this joy has been diminished can be fully presented for payment.
If you have been injured by the negligence of another and this has caused a serious strain on your marriage, it is critical that you seek competent and caring advice from an attorney familiar with loss of consortium claims. You did not ask to be put into a situation where the marital communications have been subject to discord and the reduction in everything from daily walks around the block to intimate relations have been affected. Unfortunately, the best the system can provide for these losses is a money damage award but, failing to assert these claims in a timely manner and subject to proper legal procedure will leave you with a gap that will never be made whole!
How do I calculate the value of pain and suffering in a personal injury case? This is one of the most common questions I get asked as a personal injury attorney. If you have suffered an injury because of the negligence of another person or entity in California, you normally are able to pursue compensation from the defendant’s insurance company. In order to recover damages, you will need to be able to prove that the defendant is at fault. You will then need to prove that you suffered financial losses.
California law grants people who have been injured because of the negligence of others the right to recover damages for both their economic and noneconomic losses. Your economic losses are normally straightforward since they include such things as your medical expenses and income losses. It may be more difficult for you to prove your noneconomic losses, however. An experienced Los Angeles personal injury attorney may help you to calculate the damages that you have suffered because of your pain and suffering and then help you to recover them.
Your pain and suffering damages are losses that you suffered because of your injury at the hands of the defendant. In California, these include the following:
- Past and future physical pain
- Past and future mental suffering
- Past and future loss of the enjoyment of life
- Physical impairment
- Emotional distress
Your pain and suffering damages are losses that you have suffered that are more intangible, making them more difficult to calculate.
California Civil Jury Instruction 3905A indicates that there is not a set standard for the calculation of pain and suffering damages in the state. Juries are instructed to use their common sense to determine reasonable amounts that are based on the evidence. This makes it vital for you to present clear, easily understandable evidence of the pain and suffering that you have suffered.
When the other party was clearly liable, most insurance companies will pay at least some amount of compensation for the pain and suffering that the victims suffered. However, insurance companies often attempt to get away with paying unreasonably low amounts for pain and suffering. When you have the help of an experienced personal injury lawyer, the amount is likelier to be increased to one that is reasonable.
There are a number of factors that affect the amount that insurance companies might pay, including the following:
- Severity of your injuries
- The type of pain and discomfort that people normally suffer from your type of injuries
- How your life, job and relationships have been affected by your injuries
- How long it will take for your injuries to heal
- If your injury will require additional care in the future
Your lawyer will calculate the value of your claim in order to negotiate with the insurance company for a reasonable settlement amount. He or she may use a formula to arrive at a reasonable value.
One formula that is commonly used is called the multiplier method. This involves the following:
Take the past and future medical bills times a multiplier plus the total of your economic damages to arrive at the reasonable value of your case.
The multiplier that may be used will be a number ranging from 1.5 and 5. Your attorney will choose the multiplier based on the severity of your injuries. It is common for plaintiffs and insurance companies to have different views on how high or how low of a multiplier to use. Often, the plaintiffs begin with multipliers that are a little high while the insurance companies start with multipliers that are too low.Per diem method
Your attorney may also use a type of calculation called the per diem method. This involves using a daily dollar amount from the day of the accident until the time that the plaintiff reaches his or her maximal medical improvement. Under this method, the amount chosen is a reasonable amount such as $100 per day. That amount is then multiplied by the number of days between the date of your injury and the date that you reach maximum improvement.Job description method
The job description method of calculating pain and suffering damages is less commonly used. Under this method, your pain and suffering would be written down in a similar way as a job description. For example, if you were confined to a wheelchair for six months, you would figure out how much an average person would require being paid in order to remain in a wheelchair for that amount of time.
There are many different ways that attorneys and insurance companies calculate pain and suffering damages. However, the court and the jury must agree with the way in which the amount was calculated. In major personal injury cases, focus groups are often used. Your personal injury lawyer may advise you of the calculation method that he or she will use to calculate a reasonable amount in your case.
These are certainly not all the methods attorneys use to value pain and suffering damages but, it gives you some idea of how this is analyzed.Caveat: Your damages will equal the amount of insurance coverage
In general, your total damages (including pain and suffering) will be limited by the policy limits of the defendant’s insurance policy. If the defendant in your case has a policy limit for bodily injury of $50,000, you will likely be limited to that amount. This is because all insurance companies require a complete release of their insured in exchange for payment of the policy limit. However, there are exceptions such as requiring some personal contribution from the insured or when there are additional insurance policies available. One common example is an “umbrella” policy that may provide additional coverage (usually up to $1 million). California law also provides a method for potentially requiring the insurance company to pay a judgment in excess of their limit if a reasonable policy limit demand was made and rejected by the insurance carrier. (See prior discussion here).
The insurance company or companies in your case do not have to use any of the outlined methods to calculate your pain and suffering damages. It is common for insurance companies to use computer programs to determine the amounts that they will offer. These algorithms take multiple factors into account. They might also rely on past amounts that they have paid in other cases as a reason to offer a lower amount to you.
In order for you to recover fair compensation for your injuries, it is vital for your attorney to present strong evidence of your pain and suffering damages. This makes it highly important for you to open up about how your injuries impact your life and the severity of them. You should not hold back out of a fear that you will be viewed as a complainer. Your lawyer understands the overwhelming impact that injuries may have, and they do not view people who talk about their injuries as being complainers. Take some time to think about all of the ways that your injury has affected you, and write them down. Avoid leaving things out simply because you think that they might be viewed as small. For example, if you love tennis and your injury prevents you from playing it, write it down.
Your lawyer may offer a range to the jury in order to help it reach its ultimate decision. He or she may also call several witnesses to the stand to help the jury to understand how your injury has impacted your life. Your lawyer will only be able to present examples of the losses that you have suffered if you give him or her the information. You should be prepared to give examples that are real and that come from your life.
Proving pain and suffering damages is vital to making certain that you recover an amount that fairly compensates you. In order to do so, you will need to have the necessary evidence, including the following:
- Medical records
- Witnesses who can help to establish the full impact of your pain and suffering
- Experts who can verify the severity of your injuries and the pain that they cause
- People who knew you both before and after your accident
Defense lawyers often attack before-and-after witnesses who are your blood relatives as being inherently biased. This means that having witnesses who do not have personal stakes in the outcome of your case is important. You may want to consider co-workers and acquaintances who see you almost daily and who can give their knowledge about how your injury has impacted you.
If you have been injured in an accident that was caused by the negligent actions of others, it is important that you talk to an experienced personal injury attorney in Los Angeles. We review every case and analyze all of the factors that may impact the value. Contact us today to schedule your consultation so that you can learn more about what your case might be worth.
Medical liens on personal injury settlements in California can complicate the final resolution and payment of medical bills related to an accident claim. Depending upon the type of lien asserted and other factors, the injured party may have their award reduced or be stuck holding the bag for the costs of certain services if liens are not fully and properly negotiated and paid.
What is a lien? A lien is basically a claim of right to payment by a medical provider or insurance carrier from proceeds received from a personal injury settlement or judgment. Liens basically come in two forms as follows:
Statutory Liens: These are claims for right of payment that are “presumed” or somewhat “automatic” based upon statutes under the laws of the State of California. They include liens arising from the following:
- Workers Compensation Benefits: When a person is injured while on the job but, in a manner that provides both a claim for work comp benefits and a separate cause of action for personal injuries (for full discussion of these scenarios click here), the workers compensation insurance provider will have a lien on the proceeds of the personal injury claim.
- Hospital Emergency Services: A hospital may claim a right of repayment for “emergency and ongoing” services furnished to a person injured by “an accident, negligent or wrongful act”. California Civil Code §§3045.1 – 3045.6. In order to make this lien enforceable, however, the hospital must provide written notice in a specified manner as set forth in Cal. Civ. Code 3045.3.
- Receipt of Government Benefits: If any of the medical bills were submitted and paid through public assistance benefits such as Medicare or Medi-Cal, an automatic right of repayment is applied to any recovery from a third party on a claim for personal injuries.
Contractual Medical Liens: These are claims for repayment based upon an agreement of the parties or their attorneys. They usually arise in one of three scenarios as follows:
- Health Insurance Payments: Many health insurance providers (including both PPO plans like Blue Cross and Blue Shield and HMO programs like Kaiser Permanente) have a clause in their patient agreement that “requires” repayment for the costs of health insurance benefits paid out to an insured that are later recovered from a third party tortfeasor (or that person’s or business’s auto or liability insurance company).
- Medical Payments From Auto Insurance Carrier Many car insurance policies have an allowance for payment of medical expenses related to an auto accident up to a certain limit amount. If a person uses these benefits and later recovers money from the at fault driver or registered owner, they may be liable to repay some or all of these benefits.
- Agreements to Treat on A Medical Lien: If a person is without health insurance coverage at the time of an accident, they may need to obtain medical treatment including physical therapy, surgeries, prescription medication and other forms of medical therapeutics on a “lien basis”. This means that the doctor or other medical provider agrees to treat the patient and forego payment until the matter is resolved by way of settlement or verdict.
There are many benefits to hiring an attorney to represent a victim of negligence or wrongdoing assert and administer the claims for recovery of compensation. One of these many benefits, is that lawyers who are familiar with personal injury law are adept at establishing the validity of any asserted liens, negotiating reductions of these claims for repayment, and making sure the injured person gets these bills paid and nets the maximum amount after payment. There are many nuances to medical providers asserting a right to recover all or part of what they have billed or paid for medical treatment related to a car accident or other injury causing event. For example, liens for medical payments coverage or for health insurance payments or benefits are usually subject to a “made whole” rule. This means that the injury victim must receive enough to fully compensate them for medical expenses, legal costs (including attorney’s fees) and pain and suffering damages before the insurance company can assert a claim. In addition, every lien is negotiable. A good lawyer is skilled at negotiating reductions (and sometimes outright waivers) of these claims so that the client can net as much as possible. Oftentimes, the hiring of an experienced personal injury attorney can mean the difference between getting all the bills paid and money in your pocket or being left with medical expenses and being thrown into collections.
Steven M. Sweat, APC
Personal Injury Law firm servicing all of California including Los Angeles.
11400 W Olympic Blvd #218
Los Angeles, CA 90064
Personal Injury Medical Term Glossary
A personal injury medical term glossary is a resource page that I thought would be helpful to persons who have suffered an injury and want more information. Oftentimes medical records contain terminology that is confusing to the lay person. Here are a few terms that come up quite often in claims related to bodily harm due to trauma suffered as as result of negligence or wrongdoing:
Abduction: Movement of a body part such as a limb away from the mid-line axis or center of the human body (e.g. muscles that pull arms or legs away from the body are called “Abductors.”
Abcess: A localized collection of white blood cells (pus) indicating an infection.
Adduction: In essence, the opposite of ABduction (i.e. the movement of body parts towards the center of the body) with “Adductors” being the muscles that perform this function.
Artery: Vessel that carries blood away from the heart.
Arthroplasty: Surgical construction of movable joint parts
Arthroscope: An optical tube that is inserted into an incision in the body and used to examine potentially damages tissue, usually in joints.
Articulation: A place where two or more bones come together.
Atrophy: A decrease in the size of organ or muscle tissue due to lower blood flow or non-use.
Blood Pressure: The pressure of blood flowing from the heart as measured by the exertion against veins and arteries (Measured in two parts: Systolic: pressure when the heart is contracting; and Diastolic: the pressure when the heart rests between heartbeats).
Brain Scan: The brain is usually scanned to detect damage in one of two ways: CT or CAT Scan or MRI. This can be “with or without contrast” meaning with or without a dye substance being injected into the brain tissue.
Bursa: A gel-like filled sac located in areas of the body where friction could develop such as between joints.
C-Spine Series: A series of x-rays of the upper (neck) portion of the spine including x-ray views from the front, side and diagonally – This is usually ordered after any type of major trauma to the cervical spine such as in an auto accident.
Carotid Artery: Large artery located on the side of the neck next to the Adam’s Apple. This is often used as a point to check a patient’s pulse.
Carpal Tunnel Syndrome: A condition caused by pressure on the median nerve running through the wrist resulting in pain, numbness and other symptoms, most often caused by repetitive motion injuries but, also can be due to trauma.
Cephalgia: Pain in the head (headache)
Coccyx: The lowest portion of the spine (commonly called the “tailbone”).
Comminuted Fracture: A bone that has been crushed or splintered.
Compound Fracture: Fracture where the bone is protruding through the skin.
Concussion: Condition caused when the head or body is shocked or jarred resulting in the brain being jostled inside the skull (for more information, see our brain injury page).
Cyst: Sac containing liquid or semi-solid material.
Diskectomy: A surgery to remove all or a portion of an intravertebral disk (a disk between two individual vertebrae in the spine)
Effusion: Escape of bodily fluids into a portion of a body part or tissue.
Embolism: A portion of air, fat, blood clot, plague or other mass that blocks the flow of blood through an artery.
Epidural: The space inside the spinal column between the “dura” (membrane that covers the spinal cord) and the vertebral canal. Most often used in association with a procedure called “Epidural Injections” where this area is injected with anti-inflammatory drugs to shrink the disk material that is causing pressure on a nerve and causing pain, numbness or other symptoms.
Fistula: Abnormal drainage of fluid between two organs or between organs and the outer skin layer. The fluid is most often associated with drainage of pus from an abscess.
Flexion: The ability to bend all or a portion of the body.
Fracture: A break or rupture in a bone.
Hematoma: A collection of blood in a localized area.
Hernia: A protrusion of an organ through a tear or abnormal opening in the wall of tissue. In personal injury claims, this is often used in association with “herniated discs” which are vertebral disks that are protruding abnormally due to a trauma.
Herniated Nucleus Pulposis (HNP): Condition in which the center of an intervertebral disk has protruded outside of the tissue that connects the adjacent vertebrae.
Hypertension: High blood pressure.
Hypotension: Low blood pressure.
Hypoxia: Lack of oxygen.
Infarction: Area of dead tissue resulting from a lack of sufficient blood flow.
Intervertebral: Between vertebrae (the small bones that form the human spine).
Ischemia: Lack of adequate blood flow due to a rupture, blockage or constriction of a blood vessel.
Laparotomy: A surgicial incision in the abdomen.
Lesion: Often used to describe any type of abnormality in organ tissue.
Lordosis: The curvature of the spine. Often used to describe an abnormal curvature due to some type of spinal trauma.
Meninges: The three membranes that surround the brain and spinal cord.
Myelogram: An x-ray film taken of the spinal canal after injection of a dye material.
Necrosis: Dead cells.
Neuralgia: Pain along the path of a nerve.
Occipital: The back portion of the head.
Open Reduction: Repair of a fracture by re-positioning the bone pieces after surgical incision.
Orthopedics: The branch of medical specialty that deals with the diagnosis and treatment of the skeletal system and associated structures.
Osteoarthritis: So called “degenerative” breakdown of the cartilage in the joint surfaces and the enlargement of surrounding bone tissue.
Osteomyelitis: Inflammation of the bone including the marrow.
Paravertebral: The area on the sides and surrounding the vertebrae.
Paraplegia: Loss of the use of one the lower part of the human body including the legs due to paralysis (See our spinal injury page).
Peritoneal Cavity: Abdominal cavity where containing many of the body’s internal organs.
Phalanges: Bones in the fingers and toes.
Plasma: The liquid portion of the blood after all blood cells have been removed.
Psychiatrist: Medical doctor who specializes in the diagnosis and treament of mental or emotional illnesses. Able to prescribe medications.
Psychologist: Health care professional (non-medical doctor but, usually holds a Phd in Psychology) who diagnoses cares and treats persons suffering from disturbances in their emotional health.
Quadriplegia: Paralysis of both the arms and legs (Also see our page on spine injuries).
Radiculopathy: Injury to the spinal nerve root, which causes pain or numbness to radiate along the path of the nerve (A common example would be impingement of the sciatic nerve root causing pain down the buttocks and leg).
Range of Motion: The ability of a body part such as a limb to move around an axis (measured in degrees). Limited range of motion is a common condition following trauma.
Reduction: Sometimes also referred to as an “open reduction”. This is a surgical technique to repair a fracture or dislocation of a bone or joint.
Reflex Sympathetic Dystrophy: Trauma to the sympathetic nervous system caused by damaged blood vessels or nerves and can result in swelling, pain, numbness and changes in skin color to the affected area.
Resection: Surgical removal of a portion of an body organ.
Sacrum: Triangular group of small bones at the lowest portion of the spine to which the tailbone is attached.
Skull Series: A series of x-rays of the human skull from multiple angles including frontal, side and oblique. Usually ordered following a head trauma and sometimes in conjunction with a head CT scan or MRI.
Spondylitis: Inflammation of the spinal vertebrae.
Stenosis: Narrowing of a body passage such as a blood vessel (artery or vein).
Thoracic Spine: The 12 vertebrae of the mid back starting at the bottom of the neck (bottom of the cervical spine) and going to the mid-abdomen (the top of the lumbar spine).
Vein: A blood vessel that carries blood back to the heart.
Whiplash: Trauma to the cervical spine due to a sudden back and forth movement (most commonly associated with rear end collision auto accidents).
The Importance of Hiring an Honest California Personal Injury Attorney
What is the importance of hiring an honest California personal injury attorney? Getting injured in an auto accident or other traumatic event is one of the most difficult things any person can endure. The road to recovery can be long depending upon the severity of the bodily harm sustained. You have to deal with doctors, physical therapists, and insurance adjusters. The role of your attorney should be to ease the burden of this process by being an intermediary between you and the insurance representatives and, most of all, to provide good sound legal advice based upon honesty and integrity and not simply what you want to hear to sign up (e.g. I’m going to get you a billion dollars!). Unfortunately, there are over 200,000 active lawyers in the Golden State and not all of them operate with such sincere ideals.Top Five Signs You May Be About To Hire A Dishonest Accident Lawyer:
- Personal Contact At the Scene of An Accident or By Phone After A Traffic Collision: California Rules of Professional Conduct 1-400 prohibits lawyers from soliciting business either in person or on the phone either directly or through a representative. Despite this strict prohibition, solicitors (also known as “cappers” or “runners”) routinely go to accident scenes especially in large metropolitan areas like Los Angeles to directly solicit accident victims. They have also been known to go to hospitals or even people’s homes unannounced to get a sign up. You should never hire a lawyer if the first contact that was made was a phone or in-person contact by that attorney or someone acting on their behalf!
- Your Initial Introduction and Dealings Are With A “Paralegal” or “Legal Representative” and Not A Lawyer: Again in large cities in California and especially in certain ethnic communities, there are many persons holding themselves out to be attorneys when they are, in fact, not licensed with the State Bar of California. For example, in the Hispanic communities, it is typical for persons to call themselves “notarios” or even “licenciados”. Many of these individuals “team-up” with actual attorneys but, California Rules of Professional Conduct 1-310 prohibits real lawyers from forming partnerships with non-lawyers. If the majority of communications you are having with a purported “law office” is with an individual who is a non-attorney, this should be a red flag that you may have hired a non-reputable firm.
- Exaggerated Promises About The Time-frame To Conclude An Injury Claim or the Amount of Money to Be Recovered: Any honest injury lawyer will tell you that there are two things about which every accident victim must be reasonable: The amount of time to resolve the claim; and the total amount of recovery. Every lawyer who represents persons who have sustained bodily harm wants to conclude the claims as quickly as possible and for the most money possible but, realistically, the process takes time and the value of any claim depends upon many factors. Any lawyer that says otherwise is not being honest with you!
- Lawyers With Advertisements That Do Not Include Disclaimers or Identify A Law Firm or Lawyer Responsible for the Ad: California Rules of Professional Conduct 1-400 requires any advertisements that include past results or testimonials to also include a disclaimer to the effect of the following: “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.” This is because every case is different. While past results are a great measure of a lawyer’s ability, every case is different. They all have unique facts and circumstances that affect the value. Likewise, these same ethical guidelines require that attorneys put their names on their ads so that the general public is aware of who is placing the ad. There are websites, flyers, newspaper ads, and many other forms of solicitation that don’t even have the name of the law firm or attorney. This is another sign of potential lack of compliance with law firm ethics.
- Lawyers Who Offer “Cash Up Front” For You To Sign on the Dotted Line: While it is not per se illegal for attorneys to loan client’s money, California law does prohibit the practice of tying any such loans to the outcome of a personal injury claim. Moreover, there are strict guidelines and disclosures that must be made to a client for such a transaction and these disclosures must be put in writing and signed by both the attorney and the client. If the first interaction you have with a lawyer or legal representative and such overtures are already being made, it is a bad sign!
Hiring a lawyer to represent your best interests in pursuing a claim based upon tort negligence is much like retaining any other service professional. It is always best to speak directly with the professional, themselves and not their “representative”. It is during this interview process that you can best assess their knowledge of the law, their enthusiasm to assist persons in need as opposed to just “making money” and their honesty and forthright representations that provide a realistic picture of both the positive and potentially negative aspects of your particular claim so that you go into the process with both eyes open. Why is this important? What do you think is going to happen at the end of the claim if you hire a lawyer that is dishonest in the beginning? You guessed it! You are more than likely going to get a result that is much less than what was promised!
Los Angeles Accident and Injury Lawyers
Los Angeles, California