Three Things You Must Know to Resolve a Personal Injury Claim
November 10, 2013
There are three things that you must know to resolve a personal injury claim no matter if it involves a car accident, a motorcycle collision, a fall on residential or commercial property, an assault or any other event that causes injury or death. Without knowing these three things, you will never know if you are accepting a fair amount for settlement or if you should take the case to trial. As a personal injury lawyer in Los Angeles for the past 17 years, I have had to analyze these three things in every single case of the thousands of injury claims that I have handled. What are they?
If you notice, I didn’t say did an accident occur? I also didn’t say SHOULD someone be responsible from a moral standpoint or otherwise? I said: How can I PROVE that the person or entity is LEGALLY responsible for my bodily harm? The harsh reality is that many accidents occur every day. Sometimes these are the result of being in the wrong place at the wrong time and there is nothing anyone could have done to prevent what happened. Sometimes, though, the injury or death of an individual is the result of actions, inaction, errors, or downright intentional conduct. From a legal standpoint, it must be determined if those acts or failures to act were conduct for which the law demands that the person causing harm be held accountable. Sometimes the analysis is whether the wrongdoer had a duty to act in accordance with certain standards and, instead, acted unreasonably given the all the circumstances. This is what the law calls negligence. Other times, a person or company may have created a dangerous product which did not function as promised and caused harm or may have turned a blind eye to the wrongs being committed by employees for which they knew or should have known. The key here is what evidence exists or can be discovered through the legal process that will prove your case in court. This evidence can come in the form of eyewitness testimony, documents including medical and police records, physical evidence at the scene of an accident and many other things but, there are rules which prohibit certain evidence from being used in personal injury claims based upon the California Evidence Code and the CA rules of civil procedure. All of this needs to be gathered an analyzed to determine how strong the case would present to a jury at trial to ascertain the probability of a verdict larger than the settlement offer.
In the case of a injury from an incident such as an auto accident, there are a lot of different things that need to be considered before you EVER decide whether to settle or for how much. In the case of a fairly minor incident which causes some months of discomfort and pain, this analysis may be simpler but, for more serious afflictions, it becomes more complicated. Simple or complex, though, every claim must be reviewed as a whole with each aspect of damages taken into consideration including:
- Present Medical Expenses: This should include everything from the cost of the ambulance ride to the cost of ER treatment to the cost of follow up consultations and diagnosis from medical specialists like orthopedists, neurologists, psychiatrists, physical therapists, and other medical professionals. The costs of equipment such as crutches, walkers, adjusting beds, prosthetics, therapeutic devices and anything else necessary for recovery must be factored.
- Future Costs of Medical Care: This can include the cost of surgeries such as to implant hardware to stabilize a fracture or to alleviate nerve pressure from a herniated spinal disc or any number of other things. The cost including the surgeon, the hospital or surgery center fees, the anesthesiologist, and all other expenses must be considered. Furthermore, the cost of post-surgical physical therapy, home health care and any other needs must be accounted for in figuring this value.
- Property Damages: In the case of a car wreck, it must be determined what the reasonable cost of quality repair or replacement of the vehicle should be. In the case of other incidents, the value of personal items like clothing and jewelry must be calculated.
- Pain and Suffering: California law provides that a person who suffers an injury can recover for the pain, suffering, mental anguish, anxiety and disruption to their life that the bodily harm caused. In the event of a death, the law provides for the economic value associated with the loss of love, companionship, society, comfort and solace that the lost loved one provided.
- Lost Income: California tort law provides for the value of any wages missed due to being out following an accident including sick or vacation days. It also provides for the lost earnings in the future including the value of the loss of physical or mental ability to work at the same job or industry where the injured party was employed at the time of the accident. If the event causes a death, the law provides for the amount the deceased would have provided in financial support to their family for their life expectancy.
All of these things and more need to be taken into consideration. Oftentimes, this requires patience and waiting until the full picture of diagnosis and prognosis recovery can be made. Every time, it requires knowledge of the values that have been rendered in prior claims including jury verdicts. This is especially true for pain and suffering, which is a hard thing to put a value on.
The person that harmed you or caused a loved one to lose their life, can only be made to pay from the sources available to that person or business. In the case of a car crash, there is usually automobile insurance but, sometimes the policy is not enough and you need to look to your own underinsured auto coverage. In the case of a slip and fall, assault and battery, or other mishap on commercial or residential property, there may be homeowners coverage or a business liability policy in place. For product defect claims, there may be coverages for the manufacturer that are separate from the distributor that are separate from the retailer. From there, you must determine what the total limits are for the policy or policies including umbrella or excess coverage (policies which cover above and beyond the base amount). It is possible to make the insurance company pay more than the policy limit with the right legal maneuvers.