Legal Q & A - Filing a Personal Injury Lawsuit

DO YOU HAVE A LEGAL CASE?

To answer that question three things must be considered - first, liability; second, damages; and third, can you collect?

LIABILITY

The facts will determine if another party is at fault for your injury. Liability on the part of another party, the defendant, must be evident - the defendant must have acted in a way which was negligent and caused you harm. Many laws apply to unique situations or potential defendants, so it is not always clear whether there is liability on the part of another.

DAMAGES

The second consideration is the damages, the measure of the harm you have suffered. The damages are generally broken into two types: non-economic, or general damages, and economic, or special damages.

General damages - These damages cannot be proved with any clear specificity, but are awarded based on the fact that they normally follow from an accident or injury.

General damages include:

Pain and suffering - Damages for pain and suffering considers the nature of the injury, the certainty of future pain, its severity, and how long the plaintiff is likely to be in pain. Some states allow the jury to assume that if a bodily injury has occurred there has been some pain and suffering, and some require that the plaintiff be conscious for some time period during the injury.

Disfigurement - When an injury has left a person deformed or disfigured, by scars or other permanent effects on personal appearance, the injured person (the "plaintiff") may be able to collect damages for any mental suffering that arises due to awareness of the disfigurement. These damages are sometimes included as an element of other types of damages, such as mental anguish.

Permanent disability - When an injury permanently impairs the physical or mental ability of a person to perform normal work or non-occupational activities, damages for the permanent disability may be sought.

Special damages - This general category of damages covers all monetary losses, including medical expenses after an accident or injury. Recovery requires detailed proof that the losses were sustained, and a showing of how much money was involved. Special damages include:

Lost wages - these damages represent the amount of money a plaintiff would have earned -- from the time of the injury to the date of settlement or judgment. an unemployed person may be permitted to recover lost wages if he or she can prove what could have been earned during the same period.

Medical expenses - bills and expenses for medical services such as doctors, hospital stays, emergency room treatment, ambulance fees, and nursing services. a plaintiff must show that the expenses are related to medical conditions resulting from his or her injury.

Medical surveillance - the cost of monitoring plaintiff's medical condition after the plaintiff was exposed to a hazardous substance, so that any illness or injury might be detected early.

Future lost earnings - after an accident or injury, these damages may be recovered if the plaintiff proves that his or her ability to earn money in the future has been impaired or diminished by the injuries. factors that help determine whether an award should be made include the plaintiff's age, health, life expectancy, occupation, talents, skill, experience, and training. past earnings are a factor in determining the appropriate amount of compensation for lost earning capacity, but the claim really focuses on what might have been earned were it not for the accident or injury.

future medical expenses - this type of recovery is permitted if the plaintiff proves that he or she will need continued medical care as a result of the accident or injury. the proof must be sufficient for the jury to make an approximate estimate of the cost, i.e. through the medical opinion of a treating doctor.

An accident victim could have a damages claim for any combination of the above types of damages, the facts of the case determine what damages are appropriate and can be proven.

LIABILITY AND DAMAGES - BUT CAN YOU COLLECT?

Whether you can collect is a function of the financial position of the person who wronged you. By far, most defendants look to insurance coverage for the money to satisfy any personal injury claims - such as a homeowners' policy or motor vehicle insurance. If your case is not collectible, your lawyer will advise you as soon as this is discovered. In many states including Colorado, the details concerning a defendant's insurance must be disclosed.

For auto accident cases, every state now requires minimum automobile insurance. However, many people refuse to buy insurance before they get behind the wheel. All employers are supposed to carry worker's compensation coverage. But not all do. If you are insured against disability, or for health/medical expenses, or have automobile insurance and were in a car accident, then you need to follow through with the proper forms and submissions to your insurance company. Many times, your own insurance company will require repayment of any benefits it paid to you or on your behalf if you recover in your lawsuit. This is called a "subrogation interest."

Any person seriously injured in an accident or mishap should consult an experienced personal injury attorney about the legal options available.

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