Our firm handles automobile accident and collision, medical malpractice, slip and fall, and nursing home negligence cases, as well as any other type of case that involves bodily injury. I have been practicing for over 39 years, and have handled numerous cases involving serious bodily injury or death. Personal injury claims arise when a person suffers an injury at the hands of another individual or entity. For example, if you were at someone’s home and tripped and fell over tree roots that were hidden from sight in their backyard, you could bring a claim against the homeowner’s insurance company to compensate you for the damages associated with your injury.
The term “claim” can be a source of confusion for some people, and so it calls for clarification. The term is more or less driven by corporate insurance mentality. Under common law in England, a claim was referred to as a wrong, and remedies were brought against the people who caused the situation that caused the wrong. Under U.S. law, personal injury cases are referred to as torts, which is a civil wrong between individuals. There can be a fact scenario in life that creates a criminal liability for that wrong, as well as a civil liability, such as in a wrongful death action. I recently handled a case in which a drunk driver crashed into a tree, and as a result, the passenger of the vehicle was harmed. In addition to being charged with driving under the influence, the driver was charged with assault under the criminal statutes, which is punishable by 10 to 20 years in prison. In addition, he was responsible for the civil wrong that he caused to his passenger by driving drunk, losing control, and negligently hitting a tree which resulted in the injury. These are the kind of daily fact scenarios in our lives that result in people being hurt.
Sound and viable personal injury claims depend on two factors: a source of liability, and proving the extent of the injury. In these cases, the nature and extent of the injury is paramount. For example, if someone sustained only minor scrapes or bruises as the result of a car accident, they may have a tough time bringing a personal injury claim—even if liability on the other driver is crystal clear. This is because lawsuits are very expensive to bring, and if there aren’t serious injuries to show for an accident, it will be hard to justify spending the money on the lawsuit.
When dealing with a personal injury lawsuit, you should determine whether or not your state’s statutory scheme has no-fault insurance. No-fault insurance does not mean it’s nobody’s fault that an accident occurred, but rather it provides a mechanism for receiving funds for lost wages, medical expenses, and trips to the doctor under your insurance policy. No-fault insurance provides a ceiling amount of recoverable money, and if you were to suffer a permanent injury, then you would have a right to bring a lawsuit.
The statutes of limitations vary by state, but a very good general rule of thumb is to bring a case within one year of the incident; the closer you are to the statute of limitations date, the more problematic it is for attorneys in terms of obtaining the necessary evidence, such as accident reports, photographs, medical bills, medical records, and lost wage statements in order to prove that you were indeed injured to the extent that you claim. In some cases, there will be an extension beyond the one-year mark, but this will depend on the particular state in which you’re bringing the claim.
Evidence is very important in any legal matter, as it allows us to corroborate and substantiate the information that backs up the claim you are making. Substantiating a claim is important because it provides more than just a statement; I tell people all the time, just because you say so doesn’t make it so in a court of law. We live by the rules of evidence that allow each side to a legal matter to bring forth information to the trier of fact (i.e. judge, jury). Evidence can include recordings of 911 calls, police reports, witness statements, EMS reports, ambulance run sheets (which include detailed information about what EMS providers had to do in order to get the injured person to the hospital), medical bills, test results, physician reports, and proof of lost income or inability to earn a living as a result of the injury.
There are three elements in any personal injury case: liability, impairment to earn a living (past, present, and future), and pain and suffering (past, present, and future). In order to have a viable claim, you must have evidence of each of these elements. Proving a soft tissue injury can be difficult, in part because our bodies heal fairly well and because there is less evidence that they exist (as opposed to a broken bone that can be clearly visualized via medical imaging). Anyone who has been involved in an accident should be aware of the fact that there could be an injury that is lurking, but has not fully emerged and has therefore not been diagnosed. I have handled two cases in which this happened; both clients had suffered very significant brain injuries.
Oftentimes, injured parties won’t initially report certain symptoms because they won’t initially notice them. In some cases, this is because the experience of other injuries eclipses the perception of less obvious injuries. For example, if someone is experiencing pain from a broken leg, they might not report—or even notice—that they also have a headache and slightly blurred vision. In reality, they could have a small subdural hematoma that will only worsen with time. Alternatively, a person could have a pre-existing condition that is exacerbated over time due to an injury. It is important for people to remain aware of these possibilities, and to seek treatment near the scene of the accident as soon as possible. The longer a person waits to seek treatment for an injury in an accident case, the harder they make it for their attorney to substantiate and corroborate that the injury reported was caused by the accident. This is because any length of time between the injury and treatment of the injury is referred to as a “gap in care” and can create difficulty in proving these cases.
Anyone who is dealing with a personal injury case should obtain an experienced attorney who is willing and able to take the case to trial if necessary. Inexperienced attorneys will likely be unprepared to handle a case in front of a jury, and insurance companies will know that. Most attorneys get paid on a contingency fee basis in personal injury cases. Contingency fees are in writing, and generally call for attorneys to be paid a percentage of the recovery they win for their client. These details would be included in the contract between the attorney and client so that there is no confusion as to what will be paid. In terms of the expenses in a case, I like to use the analogy of the war chest: I’m willing to put forth my work efforts on your behalf, and if we get the case settled, then I get paid. However, you must build the war chest to put the case on, because you have to have a stake in the case as well. You have to do your part, which is to receive treatment for your injuries. Not all cases are the same, and not all people can put forth the war chest, but it will depend on the circumstances of each individual case.
For more information on Personal Injury Claims In Kentucky, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (859) 888-3400 today.