Like a three-legged stool, there are three parts to any injury claim: (1) Fault (or liability), (2) damages, and (3) insurance. All three must all be present for any injury claim to be successful.
Please understand that not every injury that happens by accident will result in a lawsuit or settlement. If one piece is missing, the claim will not stand. For example, there might be damages and fault, but if there is no insurance in place, the claim will be unsuccessful, because individual defendants often have very little in the way of assets. Likewise, there may be fault and insurance, but if there are no damages or minimal damages, there will be no recovery, because it might not be worthwhile to bring a claim when no injury resulted.
In this essay, we will be discussing fault and damages only and will treat insurance at a later point, as it deserves an essay of its own.
Fault: Did the Defendant Do Something Wrong to Injure the Claimant?
With respect to fault, it is important to remember that accidents do happen. In other words, you may be injured, and the would-be defendant has good insurance, but if there is no fault — that is, if no one did anything wrong — there will not be a successful claim.
For instance, take someone who fell and broke his leg in a dark stairwell where the light bulb had burned out. For there to be “fault,” it really matters when the bulb burnt out. For example, if the light bulb had been burned out for a long period of time and tenants had complained to the landlord about it, thereby notifying the landlord, the landlord would be at fault for this accident because he knew something was wrong, and he did not fix it. The landlord is morally and legally culpable for the injury. There was something he could have done to prevent the injury and he did nothing.
However, if the light bulb had only burned out seconds before that unlucky person fell down the stairs, the landlord is not at fault. There was no notice to the landlord of the defective light, and there would have been nothing the landlord could have done just seconds after its going black. He would not have had sufficient time to fix the burned-out light before the accident happened. Accordingly, this would be classified as an accident, but not a good injury claim.
Damages consist of three parts; (1) medical bills for the treatment of your injuries from your accident, (2) lost wages, and (3) pain and suffering.
Please understand that a personal injury settlement is not meant to be a windfall or lottery. An insurance settlement is meant to put an injured person in as good a position as they were in before the accident, or least in as good a position as if the accident had never happened.
Determining the exact size of an award is not easy. Lost wages and medical bills are concrete, and measureable, numbers. It is fairly easy to add up those figures once your work records and medical bills have been collected.
However, coming up with a determination for pain and suffering is more difficult. There are different formulas for determining what that figure should be. It can be some multiple of the amount of medical bills incurred. It can be more difficult to determine pain and suffering in a case where the medical bills are not high but the injured party is left with chronic pain that will always be present such as neck pain from a bulging disc.
It is important to document the injuries for a claim. But please understand that this documentation is not done by you, necessarily, but rather the medical professionals that treat you. Insurance companies love documentation such as medical records and medical bills, and like to see that an ordinary pattern of treatment has been followed, such as a pattern like (1) a visit to the Emergency Room after the accident, (2) followed by a visit to a family or primary care physician, (3) who would then prescribe a course of physical therapy or a visit to an orthopedist or other specialist.
What if an ordinary course of treatment is not followed after an accident? Sometimes this creates a gap in treatment and could negatively affect a claim and limit recovery. For example, some gaps can be explained such as not going to the Emergency Room immediately after an accident, because often people injured are nonetheless affected by adrenaline after the stress of being in an accident and simply don’t feel any pain until the next day or two.
It can be difficult to obtain treatment for those without health insurance; it is definitely easier to get treatment with health insurance. If you have no health insurance, try to obtain some kind of health insurance under the Affordable Care Act or Medicaid.
As an aside, property damage is not part of a bodily injury claim as the monetary recovery for such damage is usually not that high. The purpose of insurance for property damage is to put you in as good a position with your car as you were before the accident, which would be the Blue Book value of your car. There is no profit for an attorney to pursue property damage. However, in the case of a bodily injury claim, an attorney may help a client out with the negotiation of the property damage with the insurance company.
In closing, there are three parts to a claim. Fault or wrongdoing, damages which include lost wages, medical bills and pain and suffering and insurance. Insurance will be discussed in more depth in a future podcast.