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Personal Injury Law: A Simple Guide To Winning Your Claim [8 Steps]

Personal Injury Law

Every year approximately 32 million people were treated in an emergency for an accident or injury in the United States.  An antibiotic could cause you to break out in itchy hives, or a drunk driver could slam into your car, leaving you with an agonizing whiplash. In a heartbeat, your happy lifestyle can be dramatically changed, and you may be stuck with expensive car repairs and huge medical bills.  The following is a guide to provide information about injury law and to give you pointers about the entire process from filing a claim to receiving an insurance settlement.

1. Learning about Personal Injury Law

Learning About Personal Injury Law

In the event you are seriously injured, you can only file an injury claim if your accident was someone else’s fault. Personal injury law governs the rules to compensate for the pain and distress you sustained from a traumatic car accident or injury resulting from someone’s negligence.

The settlement award is meant to compensate the injured party financially, and to make the injured person as “whole” as possible again.  This means adding up actual damages such as medical bills and property damage, which are fairly easy to calculate, and estimating damages in the form of physical pain, emotional distress or loss of enjoyment, which are more abstract and can be difficult to measure.

2. The Different Types of Accidents or Personal Injury

The Different Types of Accidents or Personal Injury

You may not realize the dangerous risks you face every day just driving to work or walking through your neighborhood.   Some of the many ways you might get injured are:

  • Slip and fall:  Many slip and fall injuries result from snow or ice, slick floors from water or grease, poor lighting, debris, holes in parking lots or cracks in sidewalks.  Some property owners just won’t spend money on costly repairs.
  • Dog bite:  There are over four million people attacked by dogs every year; over 30,000 people were attacked so viciously they required reconstructive surgery.
  • Car accident: There are 1.1 million accidents involving drunk drivers, and over 350,000 involving cell phone use every year.  Vehicle accidents involving rear-end collisions often result in whiplash, while head-on collisions are tragically almost always fatal.
  • Work injury:  There are over 4.7 million work injuries per year; most involve sprains, cuts or pain.
  • Wrongful death:  Most injuries resulting in death occur from a car or truck accident; there were over 400,000 wrongful deaths last year alone.
  • Medical malpractice:  Most occur because of misdiagnosis, operating on the wrong body part or even the wrong patient, or dispensing medication incorrectly.
  • Faulty Product:  The biggest problems are electrical appliances, food contamination, medical devices such as pacemakers, and serious side effects from prescription drugs.  Some products have a mistake in their design, and some products were improperly tested.
  • Nursing Home Negligence:  Understaffed caretakers give out the wrong medication or ignore bed bound patients, leading to agonizing bedsores, and falls.
  • Legal malpractice:  The biggest cause of legal malpractice is from attorneys missing important deadlines, such as the time frame set by the statute of limitations  to file a claim.

3. Determining Who Is At Fault

Determining Who Is At Fault

Since the party who bears the most blame for the injury pays most of the damages, it is important to figure out which party was the most careless or negligent.  If you were in a car accident and you were driving too fast, your injury damages might be reduced, depending on the degree of fault.  If the other driver ran a red light or was high on drugs, he or she may be blamed entirely.

Everyone who has lost a loved one because of a drunk driver wants justice; a personal injury attorney can help you know whether you can get punitive damages, which are awarded as a punishment.

One of the biggest cases in history with a punitive damage award was In 2002 against a cigarette manufacturer.  A woman claimed smoking cigarettes caused her lung cancer; the company was well aware of the risks of smoking, but kept silent. The jury ordered the tobacco company to pay a whopping $28 billion.  Drug manufacturers are notorious for hiding the risks and side effects of prescription drugs, and consequently pay massive amounts in punitive damages.

Product liability law involves a faulty product, such as in 2014 when a major car manufacturer built cars with faulty ignition switches that could shut off the engine while it was running, and cut off power steering and brakes.  At least 13 people died, and the car company set up a $400 million fund to compensate victims.

Legal duty

The individual who caused the accident, or the company that owned the property where the accident occurred, may be blamed because of legal duty to take precautions so that no one gets hurt.  Drivers shouldn’t speed, and a restaurant has to take care that any spills are mopped up quickly to avoid falls.  Some examples of legal duty are:

  • Paid transportation: Customers expect safety when they pay to ride a bus or train.
  • Doctors or other health care providers:  Patients expect to receive safe, professional care.
  • Daycare facilities and nursing homes: These facilities have a duty to provide quality care.
  • Pet owners:  Owners should keep their pets leashed and prevent them from biting anyone.
  • Property Owners: Apartment buildings, restaurants and so on are expected to maintain sidewalks, floors and ceilings and keep them free of hazards.
  • Vehicle owners and drivers:  Drivers of cars, boats, and motorcycles are expected to obey traffic laws and not text or drink while driving.

Do You Think You Might Have a Case?

If you have been injured and think you might have a case, consider some of the different ways damages may be compensated:

  • Lost wages:  Calculate the time you have missed from work and add in reduced wages if you can’t work full time.
  • Pain and suffering:  Keep a daily log of the way your injury has affected you, from your inability to care for your children, to the anxiety, depression, and frustration from being unable to drive to dealing with complicated doctor’s bills and appointments.
  • Physical pain:  List daily aches and pains, especially if you have had surgery.
  • Property damage involving your car or home:  Keep receipts for repairs and car rentals.
  • Medical costs:   Keep receipts for medical care, prescription drugs, braces, and wheelchairs,
  • Loss of consortium:  Generally loss of consortium damages are only awarded when a person dies or sustains a catastrophic injury, such as paralysis.  The spouse or children can file a claim, which includes the regrettable loss of intimate relations, companionship, assistance, and encouragement.
  • Loss of enjoyment of life:  Try to keep track of missed family celebrations such as graduations or sport events, along with your inability to garden or go fishing.

4. Starting a Personal Injury Claim for Compensation of Damages

Starting a Personal Injury Claim for Compensation of Damages

Right after your accident, the insurance company might come knocking at your door waving a settlement offer.  The main goal of an insurance company is to offer you as little as possible to settle your case; the insurance adjuster will never voluntarily give you the full value of your claim.

As soon as possible order the incident or accident report and try to write down everything that you remember about the accident, including the names of any witnesses. Be sure and take pictures of your injuries and your smashed up car, and of the accident site.

5.  The Steps to Process a Personal Injury Claim

The Steps to Process a Personal Injury Claim

If you have been involved in a car accident or some other kind of injury, you may be overwhelmed with your pain and intimidated by the insurance company.  Here are some concrete steps to simplify the complex process:

  • Counsel: Seek only reputable, experienced personal injury lawyers. The laws concerning work injuries are different from other kinds of personal injury, and these laws can vary from state to state.
  • Gather records: Your attorney will help gather police and incident reports, receipts, pictures, etc.
  • Demand: A demand is made, informing the insurance company of actual costs, along with estimates for pain and suffering, and future expenses, using the formula below.
  • Lawsuit:  If the insurance company refuses to settle the case, your attorney will file a lawsuit, followed by the discovery process, leading up to a trial.  In the discovery process, information is exchanged and the opposing attorney will do the legal representation.
  • Trial:  Virtually 95% of personal injury cases are settled before they go to trial, as trials are expensive for insurance companies.  If the personal injury lawsuits go to trial, the judge or jury will determine if the defendant is liable, and then possibly award damages.

6. Determining the Value of Your Claim

Determining the Value of Your Claim

Insurance companies use actual costs such as medical bills and car repairs, along with a multiplier of 1.5 to 5% for injuries such as whiplash or sprains, to more debilitating injuries, such as brain injury or loss of limb, to place a value on the physical pain and suffering, emotional trauma, and discomfort.  However, motor vehicle accidents or a serious injury that tragically leaves you in a wheelchair, or with horrible scars, or even ends in death, may be multiplied by up to 10 times.

The Multiplier used is 1.5 to 10% X Medical Expenses + Loss of Income = Insurance Settlement

Example:  If you had $4,000 in medical bills and $800 in lost wages and you had severe whiplash, the multiplier might be 5%, and your settlement value would be approximately $24,000.

7. Negotiating the Best Settlement

Negotiating the Best Settlement

The best way to receive the maximum amount of insurance settlement from the insurance company is with the help of a personal injury attorney.  Your attorney will initiate the litigation, contact the adjuster and stress the severity of your suffering, using graphic photos of your injury or damaged car, placing as much blame as possible on the other party.

The adjuster will automatically counter with a lower offer, so the first offer is almost never accepted.  Your attorney will come down slightly, and the dickering will go back and forth several times until a settlement amount is reached, usually somewhere in between.

Estate Planning

In the event of a large settlement, consider financial advice to safely manage your settlement, including estate planning. Planning for the future is a wise idea for clients, not just the rich, to have plans in place should something happen to you, so that your home, business and other belongings are left to the right person.

You also want to provide the best care for your young children, and you can purchase insurance for yourself if you, unfortunately, become disabled. The two main types are income replacement insurance and long term care such as rehabilitation facilities or nursing homes.

8. Finalizing your Personal Injury Claim

Finalizing your Personal Injury Claim

After a personal injury settlement has been reached, the insurance company will send a settlement check in exchange for a release from you. Generally, the insurance company will send two separate checks; one for the attorney for his fee and expenses, and one for the injured party.  If the two checks are combined, the attorney will place the check in trust and wait for it to clear before he can issue a check to you.

If you have been injured, be sure to consult an attorney to determine if you can file a claim, helping you to receive the best possible settlement from the insurance company.

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