Frequently Asked Questions
- What type of auto insurance do I need?
- What do I do if I am in an automobile accident?
- Do I really need an attorney for every claim?
- If I do hire a lawyer, what will it cost me?
- How do I make a claim against an insurance company?
- How do I know if I should settle?
- What safety laws apply to trucks and semis?
- What are NO-ZONE crashes and how can they be avoided?
- What can I recover in a workers’ compensation claim?
- How does our court system work?
If you have been injured at the fault of someone else, chances are you may have compensation coming to you. Follow the questions and answers below to help determine what to do with your current situation.
- When should I consider a claim for auto injuries?
- When should I consider a claim for medical malpractice?
- When should I consider a claim for nursing home neglect?
- When should I consider a claim for a work accident?
- When should I consider a claim for wrongful death?
Answer: Liability, UM, UIM and possibly an Umbrella Policy
Why Do I Need Liability Insurance On My Vehicle?
For one, it is the law. Many states require that drivers have some minimum amount of automobile liability insurance. The amount of coverage required may vary from state to state. In Colorado, the minimum amount of liability coverage is $25,000 per person and $50,000 per accident. Even if liability insurance is not mandatory in your state, it is still a pretty good idea to carry enough insurance coverage to protect yourself in the event you are at fault in an automobile accident.
To illustrate the importance of automobile liability insurance let us assume that you were driving with three passengers in your vehicle. You are momentarily inattentive and run a red light, striking another vehicle that is carrying a family of four. The three passengers in your vehicle are injured, along with the occupants of the other vehicle. A total of seven people are injured as a result of running the red light. Each of the seven injured people can sue you personally for their medical bills, pain and suffering, lost wages and a host of other damages.
If you had no liability insurance at the time of the accident, you could be held personally liable for the full extent of the damages caused by your negligence. Buying an automobile liability policy after you have had an accident is not the answer. Automobile insurance policies will not cover an accident that has already occurred. In addition, no policy will pay more than its policy limits. You may be personally responsible for any amounts owed the injured people.
If you have automobile liability insurance the insurance company is responsible for hiring a lawyer to defend you should you be sued by the injured people. However, if you have excess exposure (i.e., personal exposure that exceeds your policy limits), you should have your own personal attorney represent you. If an excess judgment is rendered against you, your assets (house, wages, bank accounts, vehicles etc.) may be subject to seizure or garnishment.
You should have enough insurance to protect the assets you have acquired. Your personal financial situation will dictate the amount of automobile liability insurance coverage that is adequate for you. An at-fault accident can have devastating financial consequences. Typically, a case will not be taken to trial if the defendant does not have adequate insurance to pay the judgment. However, in rare cases, if the defendant has personal assets, a case is sometimes brought. Therefore, make sure you have in place adequate automobile insurance coverage.
What Is UM (Uninsured Motorist Coverage) And UIM (Underinsured Motorist Coverage) And Why Do I Need This Insurance?
Colorado law requires that all drivers have at least $25,000 in automobile liability insurance coverage. But, what happens if your personal injuries and medical bills are more than the offending driver’s $25,000 policy? Unless the person causing the wreck has significant personal assets, you will not be able to recover the full extent of your damages. This loss can be devastating to you and your family. That is why UM or UIM Coverage is so important. In fact it may be the most important insurance coverage you can buy.
Essentially, Uninsured/Underinsured Motorist Coverage (UM/UIM Coverage) provides compensation to you, your family members and anyone occupying your vehicle, if you are injured by a careless driver who has no insurance or not enough insurance to cover your loss. UM/UIM coverage allows you to collect any additional compensation from your own insurance company, up to the limits of your UM/UIM coverage. Unless you have UM/UIM coverage, you may not be able to collect for your own personal injuries, medical bills, wage loss and other damages, if the other driver did not have enough automobile liability insurance.
If you already have automobile liability coverage, then you automatically have UM/UIM coverage up to the limits of your liability limits, unless you sign a document called a Waiver Form. The Waiver Form allows you to waive UM/UIM coverage, or select UM/UIM coverage at limits lower than your liability limits. We strongly suggest that you do not waive this coverage and purchase the highest limits available in order to protect you and your family. We have seen families financially ruined when the major bread winner is injured by an uninsured or underinsured driver. DON’T LET IT HAPPEN TO YOU!!!
Finally, do not rely on an insurance agent’s representation that you have “full coverage.” Full coverage does not necessarily mean you have UM/UIM coverage. We encourage you to pull out your insurance policy and check to see that you have adequate uninsured/underinsured motorist coverage. If you do not have UM/UIM coverage, then contact your agent, pay the additional premium and protect yourself first!
If you have a question concerning UM/UIM coverage, or need additional information, feel free to contact us. We will be happy to answer your question without charge. Drive safe, and be smart.
Do I Need An Umbrella Liability Insurance Policy?
Personal umbrella liability insurance financially protects you against a catastrophic lawsuit or judgment. It provides expanded liability coverage over and above your primary liability protection. It increases the coverage afforded under your homeowners/renters and auto insurance policies.
Do not assume that your automobile and homeowners insurance coverage provide you with enough liability protection. If you have significant assets you need to consider additional insurance coverage. A serious personal injury can leave you exposed to a financial exposure over and above your ability to pay.
These policies are generally sold to individuals who have significant assets to protect. Contrary to popular belief, these policies are not just for the very wealthy. Individuals with high or above average incomes may need this type of protection as well. High-income earners may face financial ruin if they are faced with a significant personal injury judgment that exceeds their limits of liability insurance.
Let us assume that you are at fault in causing a very serious motor vehicle accident that kills or significantly injures another driver. You have only $100,000 in automobile liability insurance on your car. The injured party has injuries and medical bills that exceed your $100,000 policy. Without an umbrella policy, you may be responsible for paying for all the injured person’s damages, over and above the limits of your $100,000 liability policy. An umbrella policy provides you with an additional layer of protection that would pay over and above the limits of your underlying policy.
An excess insurance policy will not only protect you if you are involved in an automobile accident, but also protects you in the event you are held liable for an accident that occurs at your home. As mentioned above, an umbrella policy expands the coverage afforded under your auto liability policy and your homeowners liability policy.
Without adequate insurance, even a high-income earning individual could be forced into bankruptcy by a judgment in excess of his available insurance coverage. If your assets exceed $100,000 you may wish to consider an umbrella policy.
Answer: Stay calm, investigate and let the medical professional do his or her job!
What Do I Do At The Accident Scene?
When you are involved in an automobile accident you may not be thinking as clearly as you should. Knowing what to do at the scene could not only save someone’s life, but it could also help you at a later point.
If you have been involved in an accident, the most important thing to do is immediately ensure the safety of the people involved in the accident. This means that you must take steps to secure the scene and your passengers or the passengers of the other vehicle from further danger.
To secure the scene may require that the vehicles be moved from a busy highway over to the shoulder of the road. It may also mean that road flares or other safety cones or triangles commonly contained in safety kits in the trunk, be used to clearly mark and protect the scene from oncoming traffic. The keys should immediately be removed from the ignition to prevent an accidental spark that could cause a fire. The vehicles should also be checked for leaking gas or other potentially flammable liquid.
Next, the passengers or occupants of the vehicles should be checked for injury. Do not attempt to move injured persons unless their lives are immediately threatened by an immediate peril. If a person has a severe injury like a broken back or neck, moving them could cause permanent damage or injury.
Once the scene and passengers are secured, call 911 from a cellphone or local telephone. Speak clearly and calmly. Help can be delayed if the location is not clearly communicated. Use landmarks, road signs or mile markers to assist with the accident location. Also, be sure to specify the type of emergency vehicles that will be needed such as an ambulance, fire truck, etc.
The next item is to make sure that the other driver’s important information is recorded. Get the name of the driver and the occupants, the driver’s license numbers of all persons, the insurance information, the owner of the vehicle’s information, addresses, phone numbers and work information. Record the make, model and license plate number of all involved vehicles.
Also, since many people who may witness the accident often leave the scene before the police arrive, immediately record the information of any witnesses. Attempt to elicit a statement from them about what they saw. If the witness cannot remain on the scene, make sure you give their information to the investigating police officer so he can interview them at a later date. It may also be important to record the exact time of the accident that can be reported to the police.
Attempt to avoid discussing the details of the accident or how it happened with the other driver. You do not want anything taken out of context or attributed to you that you did not say. Remain calm even if the other driver becomes irate.
If the accident is at an intersection or on a city street, make a note of any malfunctioning traffic signals or missing or damaged stop signs. Watch the traffic signals for several changes to ensure proper functioning. If you observe a malfunction, make sure to report it to the investigating police officer.
You may also want to observe the other vehicle to see if any obvious mechanical problems are apparent. Malfunctioning headlights, blinkers or other items could later prove to be significant. Again, report any visible signs to the investigating officer.
With the overuse of cellphones on today’s highways, be sure to report cellphone use observed of the other driver to the investigating police officer. Cellphone records can be matched to the approximate time of the accident.
Finally, since serious injuries may not be immediately apparent, do not be quick to deny injury until a physician checks you out. Many people become too embarrassed to confess to injury for fear of being perceived as a litigant. Allow EMT personnel to examine you for injury.
If possible take pictures of the scene or return as soon as possible to take pictures of the scene.
Should I Go To The Doctor To Get Checked For Injuries?
Yes. Many people who are involved in an automobile accident are too embarrassed to seek medical treatment, especially when the initial bumps and bruises do not seem serious or the onset of the symptoms does not immediately occur.
After an accident, an initial evaluation at a local emergency room is recommended. X-rays can be performed, which will generally rule out broken bones or fractures. Muscle relaxers and anti-inflammatory medications can be prescribed to address muscle strains or pulls.
Of course, not every accident produces injury. However, if the onset of a serious injury is delayed, the failure to have a medical complaint recorded can affect your chances of recovery. Back and neck injuries like herniated disks are not always immediately determinable. They are often initially diagnosed as “soft tissue” injuries before an MRI or CT scan reveals a disk injury. Normal X-ray film is generally not diagnostic of disk injuries.
The mechanism of injury may not always be obvious to a person injured in an automobile accident. For instance, there are many documented cases of carpel tunnel syndrome caused by a person tightly clenching the steering wheel during an accident. Since the wrists may not have slammed into a part of the car, the person involved in the injury may not associate this problem with the car accident until it is too late to make a claim.
Moreover, many insurance adjusters will refuse to pay claims when there has been a delay in receiving treatment or when large gaps in the treatment have occurred. Even though there are explainable and legitimate reasons for the delay or gap in treatment, victims may end up either uncompensated or undercompensated.
It is not uncommon for accident victims to leave the scene of the accident feeling that they were uninjured and wake up the next day or two later with extreme soreness, tightness or muscle spasm. In these instances, immediate medical attention should be sought from your doctor. Again, documentation of the onset of injury is important in establishing a causal link between an accident and an injury.
If an injury has been diagnosed by your physician, make sure you keep your appointments and scheduled treatments. Insurance adjusters will argue that you must be well or feeling fine if you do not go to the doctor. This is true even if all the physician is doing is examining you and prescribing new medications that do not seem to be working. Documentation of your pain and suffering is essential to successfully pursuing a claim.
Moreover, unsuccessful conservative treatment will eventually lead to your doctor becoming more aggressive to seek a treatment or diagnosis that will help your recovery.
Should I Talk To An Insurance Adjuster About The Crash?
Most insurance contracts require that you cooperate with your own insurance company when a claim is filed. This means that if your own insurance company contacts you, you will likely have to discuss the accident with them.
However, if you have already retained an attorney by the time you are contacted by your own insurance company you should tell them to contact your attorney to arrange any discussion or meeting about the accident.
Generally, you are not legally required to cooperate or discuss the accident with the insurance company for the other driver. However, this does not usually stop the other insurance company from attempting to contact you and obtain a statement from you about how the accident occurred and any resulting injuries.
Be very wary about adjusters who contact you requesting a statement from you or other information such as medical records, etc., in order to “settle your claim.” For the most part, the only reason the adjuster for the other insurance company wants your statement is so they can attempt to build a defense against your claim or minimize their payment of the claim. More than once adjusters have contacted unsuspecting accident victims under the pretext of helping them settle the claim and then turn around and use the information obtained from the victim in an attempt to minimize the claim.
Moreover, your medical condition may not be fully diagnosed or known when you speak with an adjuster for the other insurance company and therefore an inaccurate picture of your damages may get conveyed. One of the reasons adjusters attempt to contact victims early on in the case is so they can set a reserve value that they believe the case is worth.
Once that reserve value of the case is established, it becomes very difficult to get an adjuster to settle the case above that amount. If inaccurate information went into the setting of the reserve amount, then you have effectively ensured that litigation must be filed and the case potentially tried to a judge or jury instead of a reasonable settlement offer being extended.
However, this does not mean that you should avoid speaking to all adjusters in every case. If your injuries are conclusively established as minimal or it is clear that the total insurance coverage available is minimal, and no other coverage is available, you may wish to talk to the adjuster to conclude the matter quickly. This could also work to your advantage if the police report clearly places fault on the other driver.
If you are in doubt about whether or not to talk to an adjuster, you should consult an attorney. Once you inform the adjuster that you have retained an attorney, they are prohibited from contacting you directly again. They must work through your attorney to resolve the matter. Many people prefer not to negotiate or deal with the adjuster and would prefer an experienced attorney to handle the matter for them. More often than not, the attorney will be more successful in getting you a fair settlement or judgment than most people can obtain on their own with the adjuster. This is because attorneys know how adjusters evaluate the value of a case and know what courts will likely award for similar injuries if the case does not settle.
Some insurance companies have recently been sued for sending out written information to their insureds telling them not to contact an attorney. Be careful if an insurance adjuster tells you not to hire an attorney. This usually means that they are trying to offer you a “lowball” settlement and do not want you to know it.
Although the decision to speak to the insurance adjuster for the other company is really a judgment call on your part, it is usually wise to contact an attorney before you do so to make sure you do not inadvertently hurt your own claim.
What Information Should I Gather After The Accident?
Following an automobile accident, there is a lot of information that will need to be gathered before you file a claim, contact an attorney or file suit. The earlier you begin to assemble this information, the more likely it will be accurate and complete.
The exact type of information will depend partly on the laws of the state in which the accident occurred. Different states have different laws regarding the type of damages an automobile accident victim can collect. However, most states have laws that are designed to place the victim in the same position he would have been in had the accident not happened. This has been referred to as making the victim “whole.”
In most accidents, an investigating police officer is called to the scene where he fills out a detailed preprinted accident report form. This form contains much information about the accident and the parties involved. Thus, a good starting point in gathering information is to obtain the accident report. Although the officer does not usually give the accident victims a copy of the report at the scene, he will give them an item number or reference number that the accident victim can take to the police records department a few days later and obtain a copy of the report.
You should also get a copy of your own automobile insurance policy. Even if you are not at fault in an accident, your own insurance company may have obligations to pay medical expenses, property damage and even personal injury damages if the other driver does not have insurance sufficient to cover your damages.
Obtain copies of emergency room treatment records and any office records from any physicians you may have seen after the accident. You may even want to obtain your physician records from before the accident to help prove that your injuries were caused by the accident and not preexisting.
If your injuries have caused you to miss work or use vacation or sick leave, you may want to copy your income tax returns for the last three years, W-2 forms, and paycheck stubs. All of these items will help you establish a wage loss.
Obtain copies of estimates to repair your vehicle’s property damage. If you get more than one estimate, be sure to get copies of all estimates. Remember, with property damage, make sure your repair shop is using new parts where necessary and not simply estimating the cost of patchwork or bondo on your fenders.
Obtain names and addresses of any witnesses to the accident. If possible, get statements from them about what they witnessed. The names and addresses of all occupants and drivers involved in the accident and their respective insurance information is also important to obtain.
If possible, take pictures of your injuries, the damage to your vehicle and even the accident scene. Such pictures could be critical evidence to an expert accident reconstructionist if it becomes necessary to litigate the claim at a later date. Pictures of injuries can help others understand the degree of pain and suffering your injuries caused to you.
Information can easily be lost, changed or destroyed over time. The sooner you gather the information, the more likely it is to be accurate and complete. Even if you do not think you will file a claim, it is easier to gather the information early and discard it later than it is to recreate information that was not obtained at the beginning.
If you are involved in an automobile accident and it involves property damage only with little if no personal injury, you may do well to handle the case yourself or with your own insurance company. If you have collision coverage your own insurance company will be responsible for paying for your property damage, minus the deductible. Once your insurance company has paid your claim, it has the right to seek reimbursement or subrogation from the insurance company or person responsible for the accident.
Your insurance company will not pursue a claim for any personal injury suffered by you or your passengers. That type of claim will have to be pursued by you. It may be done individually or through a personal injury attorney. If your physical injury is minimal, i.e., bumps and bruises and resolves in a few days or a week it may not be worth hiring an attorney to pursue the claim. For that reason, it is always a good idea to see a doctor and have a medical record documenting your injury.
If your physical injury involves anything more than bumps and bruises that resolve quickly it is probably a good idea to seek the advice of a good and reputable personal injury attorney. An experienced attorney will know how to properly evaluate your claim and collect the full measure of your damages. For example, even if you use sick time to take off from work the law may allow you to collect that money from the responsible party under what is called the “collateral source rule.” Likewise, even if your medical bills were paid by insurance, an experienced attorney may be able to have the defendant pay those expenses as well, even though they have already been paid by your own personal insurance.
An experienced attorney will know what rules apply to your particular circumstances and use those rules to your benefit. Dealing with the insurance company on your own may result in recovering less than your claim is worth. An insurance company adjuster’s job is to save the insurance company money. They have no duty to insure that you recover what your claim is worth. In fact, their job performance rating is based on how much they save the insurance company.
Finally, if your claim is minimal you may not need a lawyer to represent you. The problem is that you may not know the value of your potential claim until you seek professional advice. At the very least, talk to a reputable personal injury lawyer before dealing with the insurance company yourself. It is the only way you can be sure you get paid the value of your claim.
Answer: Usually one-third (33 and 1/3 percent on a personal injury claim, 20 percent on a workers’ compensation claim and a flat rate for criminal defense.
We handle personal injury, wrongful death and workers’ compensation cases on a “contingency” basis. That means we get paid a percentage of what we collect. If we do not collect on your case, you owe us no fee. If we settle your personal injury case, our fee is typically one-third of the amount collected. However, if the case goes to trial and we collect a money judgment, our fee is typically raised to 40 percent of the amount collected. These rates may be flexible either upward or downward depending on the complexity of the case.
Colorado law sets the rate of compensation in workers’ compensation cases to 20 percent of the amount collected. If temporary benefits are being awarded when we get the case, we do not take any fees from those amounts. We take our fee from the permanent benefits or lump-sum settlement at the end of the case.
The flat rate charged for criminal defense depends on the case and the crime you are accused of committing. Some defenses are simpler than others and, therefore, the fee is less. We would need to discuss the particulars of your case in order to reach an agreement on fees. However, we handle most criminal defense cases on a flat rate. That way, you are not surprised by a large bill at the end of the case that was not anticipated in the beginning.
There is no simple answer to this question.
The decision to make a claim against an insurance company generally should be based upon the fault of the other driver and the extent of injuries and damages you suffered as a result.
Of course, not every auto accident will or should result in a claim. This is especially true in the situation where the thought process is to collect a few thousand dollars as part of some nuisance-type settlement.
When claims are made, they can be discovered in any subsequent litigation and could potentially hurt an otherwise legitimate case. Thus, the decision to pursue the claim should be made only when an injury and medical expenses have been sustained.
Once the decision to pursue the claim has been made, the next determination is how to go about making the claim. The answer to this question may depend on which insurance company you are attempting to make a claim against, yours or the other driver’s.
When an accident occurs, the police are called to the scene and the investigating officer will fill out an accident report. He will then give to both drivers a copy of the item number or accident report number so that the accident report can be obtained when he is finished completing it.
The report will contain the names of the other driver and insurance company. It also usually contains the policy number under which the other driver is insured. Virtually all insurance companies have toll free numbers for reporting claims that can be used to report the accident. Of course, you will need the name of their insured, policy number, date of accident, and item or accident report number. They may also seek information about your insurance. Then a claim number will be assigned to your claim that you can use for future communications or for reference when checking on the status of the claim.
Most of the time the other driver’s insurance company will contact you before you can contact them. This assumes that the other driver has reported the incident to his insurance company, which is not always the case. If they contact you, make sure you tell them that you want to know the claim number they have set up to process your claim against their driver.
It is also important to report the accident to your own insurance company even if you are not at fault in the accident. You may have certain coverages that will immediately pay for your property damage and medical expenses without having to wait and see if the other insurance company will accept or deny your claim. If your own insurance company pays you, they will then seek to recover their money from the other insurance company. This is called subrogation.
Be careful when discussing the accident with an adjuster for the other driver’s insurance company. Avoid giving statements or recorded testimony about how the accident occurred. Those details are usually contained on the accident report that can easily be obtained by the adjuster. If the accident report is accurate, simply refer the adjuster to it.
Adjusters frequently try to elicit a statement from the opposing party in an attempt to minimize your damages or deny your claim. Give only the information that is absolutely necessary and contact an attorney if you have any doubts or questions about what information to provide.
There is no simple answer to this question.
There are many factors that will determine whether your personal injury case will settle, or whether you will have to proceed to trial. Probably the most significant of these factors is the type of personal injury case involved. Generally, the more sophisticated issues and cases do not resolve early in the process of litigation. Most automobile accident cases do settle without the need for a trial.
Medical malpractice cases, products liability cases and premises liability cases usually do not settle early on in the process and may very well require a trial to determine the outcome. In medical malpractice cases in particular, if a doctor settles a case, he gets reported to a national databank. Each time he renews his insurance or if he seeks credentialing with a hospital, a report from the databank is received. Thus, the databank report follows him throughout his career. This makes it less likely that he will want to ever settle a case.
Some insurance agreements have what is called a “consent to settle clause.” This clause allows the person who is insured to determine whether or not the case will settle. If such a clause is in the insurance contract, the insurance company cannot settle the case even if they really want to settle without the consent of the insured. These clauses are especially prevalent in medical malpractice insurance agreements.
In cases involving complex factual or legal issues, it may take a long time for depositions, expert reviews and documents to be exchanged and evaluated by the parties. Without an adequate understanding of the issues and the potential testimony at trial, the parties do not have enough information to evaluate their chance of success and thus, their willingness to settle. Although cases involving complex factual and legal issues may settle on the “courthouse steps,” it could take years to get to that point.
Sometimes, a legal issue may have to be decided by the court to help the parties determine whether certain evidence can be presented at trial. There may also be certain laws that limit certain types of claims, even if those claims appear to be a clear winner for one side. Until a court decides these legal issues, the parties cannot evaluate their exposure in the case.
Even if the parties agree about who was at fault in a case, the case may not settle due to a dispute over the amount of damages sustained by the plaintiff. Cases often proceed to trial on the sole issue of damages. Thus, most lawyers will work the case as if it will proceed to trial and hope that their work will enlighten the other side about the need to settle the case. If the case does not settle, that lawyer is then ultimately prepared to try a good case with the best potential for a favorable outcome.
Statistically speaking, most cases settle before trial. However, it could take years to develop enough facts and legal issues to convince the parties of the need to settle the case. Thus, it would not be a good idea to count on a quick settlement in any case.
How Do Lawyers Determine The Value Of My Case?
There are several elements of damages that courts allow plaintiffs to recover when they are the victim of a personal injury. Pain and suffering and mental anguish are in a category called general or noneconomic damages. Lost wages, and medical expenses are called special or economic damages.
The value of general damages in most personal injury cases are determined by a combination of the lawyer’s past experience with the same type of cases and by reviewing the jury verdicts on similar types of injuries. Virtually every conceivable type of personal injury has been previously decided by juries and courts prior to the time you filed your case.
Thus, a range between high awards and low awards exists that establish the value of the case. Ultimately, if a jury or judge awards an amount that is significantly higher or lower than the prior cases awarded, the court of appeals can increase or decrease the award.
The courts also establish rules for recovery of special damages like lost wages. Many states allow the plaintiff to recover the gross amount of the wages they would have received before taxes would be taken out. However, future lost wage awards are usually required to be reduced to the present value. Otherwise, an award of future wages could be invested to make more than a person would make in the future.
Courts may also allow the plaintiff to recover medical expenses from the person who injures them even if the plaintiff’s own medical insurance paid for those medical expenses and the plaintiff did not have “out-of-pocket” expenses. In those instances, the plaintiff’s medical insurer may have a lien or right of recovery against the proceeds the plaintiff receives from the party that injures him.
Once the range for the gross value is determined, other factors should then be considered to determine the value at which the case can settle, if the parties are willing to settle. For instance, what are the chances of proving liability? If the chances of recovery are only 50 percent, then the range of value should be reduced by a number close to 50 percent for purposes of considering a settlement. The fault of the plaintiff or the fault of a third party should also be considered in evaluating the case.
Most jurisdictions require that the recovery of the plaintiff be reduced by the fault of the plaintiff or the fault of third parties. Thus, for purposes of evaluating the case for settlement, this “other” fault must be considered.
If the case proceeds to trial and the plaintiff prevails, legal interest is also usually awarded to the plaintiff. This can be a significant amount if the case is a few years old. Legal interest is not awarded if the case is settled. In some states and under certain circumstances, attorney’s fees and court costs can also be awarded to the plaintiff who prevails at trial. These sums should be made part of any valuation made by your attorney.
All of these factors should be discussed with your attorney to make an intelligent and reliable decision regarding the prospect of settlement or trial.
How Do I Know If I Have A Good Settlement Offer?
Most cases settle out of court before proceeding to trial. However, not all cases settle for what they should. Sometimes, the plaintiff ends up settling the case for a lot less than the case is worth. Other times, the defense pays a premium to resolve the case. How are you supposed to know if the settlement offer being made is fair?
Some say that the measure of a good settlement is when both parties walk away from the settlement unhappy. This means that the defendant paid more than he wanted to pay, and the plaintiff accepted less than he wanted to accept. Several factors can provide guidance on whether the settlement should be accepted. In general, if you can get close to judgment value of the case in settlement, then it should be considered a very good settlement.
One of the first considerations that attorneys and clients should factor in is the chance of prevailing on the issue of liability. If the other side is clearly at fault, then a settlement offer should not be decreased because of the risk of losing the case. If the plaintiff has only a 60 percent chance of prevailing on liability, he may want to consider taking 40 percent less in settlement.
However, some cases do not involve clear-cut issues of fault. Often, the fault involved in a personal injury action may be spread around. In other words, more than one party or person may be responsible for the plaintiff’s injuries.
In cases involving the fault of more than one party, any settlement offer must account for that fault. This is difficult if one of the parties at fault is not solvent or otherwise cannot make a contribution toward settlement. Fault of the plaintiff must also be factored into any settlement offer if the plaintiff is partly responsible for his own injuries. Thus, if the fault of others, including the plaintiff, is reasonably evaluated to approximate 20 percent, then the settling defendant should offer close to 80 percent of the plaintiff’s damages in settlement.
Another important factor to consider in assessing the fairness of a settlement offer is the venue (the court jurisdiction) in which the action is pending. Some jurisdictions draw from jury pools that are more conservative or liberal than others. If the court in which the case is pending draws from a more liberal jury pool, then the settlement offer should take that factor into account by being on the higher end of the range of possible judgments to account for the fact that liberal juries award more money to injured persons.
Most settlement offers will not take into account judicial interest. Judicial interest is awarded to the plaintiff who wins at trial. In an old case, the interest on the judgment can be substantial. However, most defendants will not pay interest in the settlement.
Unfortunately, the financial need of the plaintiff can result in a diminished recovery. Defendants know that in some cases, they can simply “wait it out,” and the plaintiff will take a lot less now because he cannot afford to wait the period of years before the case proceeds to trial. If the defendant knows that both the attorney and client are willing to wait as long as it takes to recover the maximum amount of money, then they are more willing to present a higher settlement offer.
In serious injury cases, you should consult with an attorney before accepting any settlement offer made by the other side.
Answer: The Federal Motor Carrier Safety Regulations
On January 1, 2000, Congress established the Federal Motor Carrier Safety Administration (FMCSA), within the U.S. Department of Transportation. This organization was formerly the Federal Highway Administration Office of Motor Carriers. Its primary mission is to “reduce crashes, injuries, and fatalities involving large trucks and buses.” As part of this mission, FMCSA develops and enforces regulations designed to strike a balance between safety and industry efficiency.
Some of the key programs of the FMCSA include developing and maintaining the Federal Motor Carrier Safety Regulations. These regulations establish safe operating requirements for commercial truck drivers, their vehicles and their equipment. The FMCSA also enforces rules and regulations on transportation of hazardous materials over our interstate highways. These rules govern operational requirements, classification of hazardous materials and proper packaging of such materials.
One of the main regulations developed by FMCSA is the Hours of Service (HOS) regulations. These regulations place specific limits on the number of hours that a truck driver can drive his truck without a break. Prior to the formation of FMCSA, the HOS rules had not been changed in more than 60 years.
FMCSA also oversees compliance with the commercial driver’s license standards for drivers, carriers and States. These regulations require that drivers pass written and driving tests.
FMCSA also provides educational programs for safety, including messages aimed at passenger car drivers and pedestrians. FMCSA’s research and technology work is designed to develop new and safer methods of truck and bus safety.
FMCSA also works with States to develop and implement local safety rules. One such program, Performance and Registration Information Systems Management (PRISM), links federal motor carrier safety records with the State’s vehicle registration system. Safety performance is continuously monitored. Carriers that are prohibited from operating in interstate commerce may be denied the ability to register their vehicles.
What Is A Commercial Driver’s License?
The Federal Motor Carrier Safety Administration (FMCSA) has established specific rules and standards that truck drivers and their companies must follow to operate a commercial motor vehicle. Effective April 1, 1992, no person is permitted to operate a commercial motor vehicle unless that person has taken and passed written and driving tests that meet federal standards. Following successful completion of these tests the driver is issued a Commercial Driver’s License (CDL).
An example of some of the specific knowledge requirements that a driver taking the CDL test must possess include:
* Motor vehicle inspection, repair and maintenance
* Procedures for safe vehicle operations
* The effects of fatigue, poor vision, hearing and general health upon safe commercial vehicle operation
* The types of motor vehicles and cargoes subject to federal law
* The effects of alcohol and drug use upon safe commercial vehicle operations
* Commercial motor vehicle safety control systems
In addition to knowledge requirements for the written test, drivers must also demonstrate that they possess safe driving skills for their vehicle group. This should include proper visual search methods, appropriate use of signals, speed control for weather and traffic conditions, and ability to position the motor vehicle correctly when changing lanes.
Because most commercial vehicles are equipped with air brakes, the federal regulations require that drivers demonstrate that they possess the skills to conduct pretrip inspection procedures to locate and verbally identify air brake operating controls and monitoring devices, determine the motor vehicle’s brake system condition for proper adjustments, and ability to determine that air system connections between motor vehicle and trailer have been properly made and secured.
The skills driving test must be conducted in on-street conditions or under a combination of on-street and off-street conditions. It should include the ability to start, stop, and move the vehicle forward and backward in a safe manner.
Drivers are also tested for their knowledge on night driving factors, extreme driving conditions, emergency maneuvers, skid control and recovery, and vehicle inspections.
A driver applicant must correctly answer at least 80 percent of the questions on each knowledge test in order to achieve a passing score. To achieve a passing score on the skills test, the driver must demonstrate that he can perform all of the skills required by the regulations. If the driver does not obey traffic laws or causes and accident during the test, he automatically fails the test.
Do Laws Regulate The Amount Of Time A Trucker Spends On The Road?
In 1939, the Federal Government passed regulations to limit the hours of service (HOS), that truck drivers could operate their commercial motor vehicles. Although much has happened with U.S. highways since, 1939, those HOS regulations remained the same.
In 1995 Congress directed the Federal Motor Carrier Safety Administration (FMCSA) to study the effect of fatigue of commercial motor vehicle crashes and to reform those HOS regulations. In response, FMCSA conducted scientific research, reviewed tens of thousands of comments to the rule making process and employed experts to review the issues.
In April 2003, FMCSA made the first meaningful revision to the HOS regulations in more than 60 years. The new regulations go into effect on January 4, 2004. These new rules have attempted to balance the increased opportunity for drivers to obtain necessary rest with the realities of operation by commercial motor vehicle carriers.
The new rules allow drivers to drive 11 hours after 10 consecutive hours of off-duty. Also, drivers may not drive after being on duty for 60 hours in a seven consecutive day period or 70 hours in an eight consecutive day period. Drivers may not drive beyond the 14th hour after coming on-duty following 10 hours off duty.
Short haul drivers are allowed to be on-duty for a period of 16 hours once during any seven consecutive day period.
The old rule allowed 10 hours of driving after an eight-hour period of off-duty time. Drivers were also not allowed to drive after their 15th hour on duty in a workday or after 60 hours on duty time in seven consecutive days or 70 hours in on duty eight consecutive days.
Although the new rules purportedly appease truck drivers who argue that better equipment and roads should translate into more driving time, in reality the difference is a net loss of HOS per 24 hours. The new rules allow a driver to drive 14 of 24 hours. The old rules allowed 15 of 24 hours of driving time.
The HOS rules govern drivers who transport freight through interstate commerce whose vehicle has a gross weight rating of 10,001 pounds. Drivers of buses involved in interstate transportation will continue to use the old HOS regulations.
Does The Federal Government Place Weight And Size Restrictions On Trucks?
In the 1950s, the authorization of the Dwight D. Eisenhower National System of Interstate and Defense Highways created a federal interest in building and preserving a national system of interstate highways. Today, interstate highways comprise an approximate 40,000 mile system of limited access, divided highways that span the country.
As part of the goal of preservation and maintenance of this highway system, the Federal Government has enacted commercial vehicle standards that regulate the size and weight of commercial motor vehicles that travel on the interstate highways.
These regulations provide the following restrictions:
* Single-axle vehicles: 20,000 pounds
* Tandem-axle vehicles: 34,000 pounds
* Gross vehicle weight: 80,000 pounds
In addition to the foregoing, in 1975 a formula was introduced to reduce the risk of damage to highway bridges by requiring more axles or a longer wheel base to compensate for increased vehicle weight.
The size of commercial motor vehicles is also limited in some instances. Although there is no federal length limit imposed on most truck tractor-semitrailers, there are exceptions for tractor trailers designed and used specifically to carry automobiles and boats in specifically designed racks. These vehicles may not exceed a maximum overall vehicle length of 65 feet or 75 feet depending on the type of connection between the tractor and trailer.
Federal law also provides that no state may impose a length limitation of less than 48 feet (unless governed by a grandfather clause) on a semitrailer operating in any truck tractor-semitrailer combination on the national network of highways. Similarly, federal law prohibits states from imposing a length limitation of less than 28 feet on a semitrailer or trailer operating in a truck tractor (twin trailer) combination.
With respect to width, no state can impose a limitation of more or less than 102 inches. Safety devices like mirrors may not be included in this calculation. Federal law does not impose a height limit. State standards range from 13.6 feet to 14.6 feet.
Are Trucks Required By Law To Carry Insurance?
There are federal and state laws that require commercial motor vehicles to carry insurance for various types of losses. These laws also require that certain types of insurance must be purchased at minimum limits. These laws are designed to protect motorists and others with an insurable interest in the event that a large truck is involved in an accident that causes property damage and/or personal injuries.
Title 49, Section 387 of the United States Code of Federal Regulations sets forth minimum insurance limits for vehicles with a gross vehicle weight rating of 10,000 pounds or more. These limits are as follows:
* $750,000 for Bodily Injury and Property Damage for nonhazardous general commodities
* $1 million for Bodily Injury and Property Damage for hazardous materials, except explosives
* $5 million Bodily Injury and Property Damage for explosives and hazardous materials transported in specified tanks
For vehicles with a gross vehicle weight rating of less than 10,000 pounds the following minimum limits apply:
* $300,000 Bodily Injury and Property Damage for general commodities
* $5 million Bodily Injury and Property Damage for any quantity of explosives or poison gas, or radioactive materials
Common carriers must carry minimum liability as listed above plus another $10,000 cargo insurance.
State laws vary on the specific amount of insurance they require trucking companies to carry. Some examples include:
Texas requires that commercial motor vehicles with a gross weight in excess of 26,000 pounds carry a minimum of $500,000 worth of insurance. Foreign motor carriers or foreign private carriers defined by federal law have to carry the $750,000 insurance required by federal law.
Louisiana requires that vehicles with a gross weight over 50,000 pounds provide a combined minimum single coverage limit of $300,000 and $25,000 in property damage.
Answer: The dangerous areas around a truck are the “NO ZONE.” Crashes can be avoided by staying away from the “NO ZONE.”
In 1991, Congress directed the Federal Highway Administration (now under the direction of the Federal Motor Carrier Safety Administration), to educate motorists how to safely share the road with big trucks. The goal was to increase awareness of the danger areas around commercial vehicles. These danger areas were called “no zones” and represent blind spots in which cars disappear from the view of the truck driver.
Research suggests that crashes between trucks and cars are much more likely to occur in these “no zones.” These danger areas consist of the side no zone, the rear no zone, and the front no zone.
In a study using 1996 data, it was estimated that 32,500 crashes or 13 percent of all two vehicle crashes between passenger vehicles and large trucks occurred in the front no zone. Side no-zone crashes approximated 21,500 of nonintersection encroachments and 10,500 intersection encroachments for a total of 12 percent of the two vehicle crashes between trucks and cars. The rear no zone accounted for 25,000 crashes or 10 percent of these same crashes.
The conclusions reached by the study indicate that of a total 258,000 crashes between a large truck and a passenger vehicle in 1996 a total of approximately 89,500 crashes, or 35 percent occurred within the no zones. This translates into an estimated 30,500 personal injuries caused by no-zone crashes.
The major push in crash avoidance in the no zone has centered around educating motorists about no zones. This includes identifying where the no zones are located and information on how to stay out of these zones as much as possible. Moreover, if a motorist is in a truck’s no zone, he should be more defensive and aware of the fact that the truck driver likely cannot and does not see him.
Many trucks have decals on the back of the rig that tell motorists about the identity of the no zones. They also caution drivers who pass rigs on the right to be aware that the truck makes wide right turns. This can avoid a side no-zone collision on the right side with a passing motorist. Research suggests that motorists would be less inclined to drive dangerously in the vicinity of large trucks if they were better informed about the trucks’ limitations and capabilities.
Following too close to the large truck in his rear no zone has also been a topic of the no-zone campaign. Again, most motorists do not realize that debris can fall from a truck or be kicked up by its tires presenting a dangerous situation. Driving that close also restricts visibility and limits reaction time in an emergency.
Understanding and avoiding no zones is the key to limiting these devastating crashes.
What Are The Most Frequent Unsafe Acts Of Motorists?
In February 1999, a study conducted for the U.S. Department of Transportation Federal Highway Administration reviewed the unsafe driving acts of motorists in the vicinity of large trucks. This study was developed not only to identify such unsafe driving acts, but also to develop recommendations for training and changes to existing vehicle codes.
Unsafe driving acts were determined by interviewing experts, truck drivers and review of collision investigation reports. According to the study, unsafe driving acts were classified under two separate categories: unsafe acts determined by rating of danger or death and unsafe acts determined by frequency of act.
The top five unsafe acts according to danger or risk of death were:
* Driving left of center into opposing traffic
* Unsafe passing, primarily with insufficient road space
* Driving while impaired with alcohol
* Failure to stop for a stop sign or light
* Failure to discern that the trailer is blocking the roadway
The top five unsafe acts according to frequency were:
* Following too closely
* Unsafe speed
* Driving inattentively
* Driving in the “no zones”
* Merging improperly into traffic
Although trucks compose approximately 8 percent of all vehicles involved in fatal crashes, truck accidents accounted for 12 percent of the total number of lives lost on the nation’s highways. This disparity can be explained by the fact that trucks weigh 20 to 30 times more than passenger vehicles. When that large of a mass hits a vehicle with speed, the occupants of the passenger vehicles are at a considerable disadvantage.
Many motorists have the misperception that truck drivers are more at fault in accidents since they are involved in more deadly wrecks. These statistics demonstrate that often, it is the passenger vehicles that are ignorant of the performance limitations of large trucks.
Answer: Benefits for medical bills, lost wages, disability, death and out-of-pocket expenses.
The Colorado Workers’ Compensation Act provides a system for compensating employees for injuries and occupational diseases resulting from employment. The employer assumes liability of the injury no matter who is to blame. Thus, even if you get hurt at work and it is your own fault, you still have a workers’ compensation claim. However, the tradeoff for this is that the employee is prohibited from suing the employer at common law.
If the injury is work-related, medical treatment and related services must be provided to cure and relieve the injured employee from the effects of the injury. There are limits to the treatment and special rules governing who you can go to for treatment, how much they can charge and their qualifications to provide opinions concerning impairments and causation of impairments.
Disability payments are payable for time lost from work of more than three days and for permanent impairment. Benefits for temporary disability are calculated by using the employee’s wage at the time of injury, including overtime, wage differentials and specified fringe benefits. Payments for temporary disability benefits can be partial, as where the employee is still able to work part time, or total, where the employee is taken off work entirely because of the work injury.
The Colorado Workers’ Compensation Act provides for payments to the dependents of an employee who dies as a result of occupational injuries. In general, the dependents’ benefits are based on the same weekly amount the deceased employee would receive in temporary total disability benefits. The surviving spouse is typically considered to be wholly dependent on the deceased worker and entitled to these benefits. In addition, children under the age of 18 are considered to be dependants as well as children between 18 and 21 that were actually dependent on the decedent and engaged as a full-time student at an accredited university. A mother, father, grandmother, grandfather, sister, brother or grandchild may establish entitlement to dependency benefits if he or she is incapable of work of is disabled from earning his or her own living. In addition, the dependent must be wholly or partially supported by the deceased employee at the time of death.
One can recover for the cost of travel to medical appointments arising out of the work injury, cost of hotels, cost of meals, and other out-of-pocket expenses. In death cases, payment for funeral expenses up to $7,000 is also allowed.
The Colorado Workers’ Compensation Act precludes recovery for pain and suffering and other general or noneconomic damages. An injured employee is only able to recover what is allowed by the Act, and that is typically much less than what is available through a negligence suit at common law.
There is no simple answer to this question.
In this country, the court system is generally divided into two types of courts, state courts and federal courts. Each state has the authority to create the different courts under its own system. However, in most states the system is made up of three levels of courts: the district or trial court, the courts of appeal and the supreme court.
Most state court judges, at all three levels, are elected by the population for certain terms of service. Some states impose term limits to prevent multi term judges. Most states break down the geographic areas of the state into judicial districts. A district or trial court represents the people who reside in that district. Several districts are then usually grouped together and represented by a court of appeals. There are usually many fewer courts of appeals than there are district courts. The courts of appeal hear cases coming out of the judicial districts to which they are assigned. Although the number of judges who sit on the court of appeal may differ from state to state, the number is usually an odd number to prevent a split decision.
There is one state supreme court that hears cases coming out of the courts of appeal, and in some limited instances, directly from the people. If an issue affects a right protected by the United States Constitution, or some other federal law (death sentence cases), it can be appealed from the state supreme court to the United States Supreme Court. However, it is rare that this is the case and most state supreme courts are the final stopping point in the judicial process for most cases. Most states elect 9 state supreme court justices.
The federal system also has three levels, the district courts, the court of appeals and the United States Supreme Court. On the federal level, states are broken down into several geographic district courts. The federal courts of appeal hear cases from all the district courts in their area. Currently, there are 11 federal courts of appeals. Many hear cases coming out of district courts from several states. The United States Supreme Court in Washington, D.C., is the highest court in the land.
Only the United States Congress has the authority to pass legislation that overrules decisions of the Supreme Court. This is part of the checks and balances of power the founding fathers of this country created to ensure that no one branch of the government (legislative, judicial, or executive), had too much power. The United States Supreme Court Justices are appointed by the President and serve for life. There are nine Justices.
The Statute Of Limitations
The statute of limitations is the time period that the law allows for asserting a claim. If a claim is not brought within the time period allowed by the statute of limitations, it will be barred. This means that even if you have a clear-cut case against someone arising out of a personal injury, the court will dismiss your claim if you do not file it within the time period allowed by the statute of limitations. In Colorado, the statute of limitations is very short for negligence cases. It is two years in ordinary negligence cases (including malpractice cases) and three years if the negligence involved a motor vehicle. Regardless of the time, once a claim is barred by the statute of limitations, there is no chance of resurrecting it.
The idea behind imposing a statute of limitations for bringing claims is to prevent stale or old claims from hanging over the head of a business or person indefinitely. Also, as time passes, evidence is harder to gather, witnesses disappear or die and documents get destroyed. Thus, it would make the defense of claims difficult if not impossible if a claim could be brought for a personal injury that occurred 10 years ago.
The law recognizes that there are instances where a person could not have brought a claim within the statute of limitations because they were not aware that a claim existed or some other legally recognized circumstance occurred. An example of this might be where a sponge was left inside someone by a physician during surgery and the patient does not discover this fact until more than two years later. Another case is when a minor is injured, the statute of limitations does not usually start to run until the child reaches the age of majority.
Accordingly, the law has created certain legal principles that may be used to suspend or interrupt the running of the applicable time limitations. These principles vary from jurisdiction to jurisdiction. There are some exceptions to this general rule and an attorney should be consulted to advise you on the facts and circumstances of your particular situation.
Not knowing the specific time period in which to bring a claim is not an excuse. For these reasons, it is important to determine at the beginning of the review whether there is a potential problem.
Who Has The Burden Of Proof In A Lawsuit?
The person bringing the lawsuit, the plaintiff, has the burden of proving the elements of his lawsuit. In a civil case, the plaintiff must prove his case by a preponderance of the evidence. That means that he must prove a fact and his damages by showing that something is more likely so than not, i.e., 50.1 percent versus 49.9 percent.
If the judge or jury believes the plaintiff and defendant equally, the plaintiff has failed to meet his burden of proof and his claim must fail. In other words, the tie goes to the defendant. The defendant does not have to prove anything. The defense is free to simply poke holes in the case of the plaintiff.
There are limited circumstances in which the defendant must prove a defense. This usually arises when the defendant has raised what is known as an affirmative defense. Also, if the defendant attempts to blame a third party, he is usually required to prove his case against that third party by a preponderance of the evidence.
If the plaintiff has successfully proven that a fact is more likely so than not, it must be accepted as true by the judge or jury. In criminal cases, the prosecution must prove its case beyond a reasonable doubt. This higher burden of proof is required in criminal cases because of the deprivation of freedom (incarceration) or life (death penalty). In civil cases, the remedy is usually the payment of money. Thus, the burden of proof is less.
Each year nearly 3 million Americans are injured in automobile accidents. Another 60,000 Americans are killed in accidents. Not every accident involving death, injury or property damage results in a claim or lawsuit. Not every accident should result in a claim. How do you know when to make a claim and when not to make one?
The answer to this question depends on several factors. Probably the first and foremost consideration is the nature and extent of your injuries and losses. Obviously, minor injuries and losses may not be worth the heartache associated with bringing a formal claim as a result of the accident.
Frequently, poor treatment by the insurance adjuster will lead a client, who otherwise would not have filed a lawsuit into proceeding in court. Many people simply want to be reimbursed for their out-of-pocket medical and other expenses. It is only after such minimal claims are denied or greatly reduced by the insurance adjuster do clients decide to proceed to hire an attorney.
Another factor commonly considered by clients when contemplating whether or not to bring a legal claim is the exposure of their private life and information. When a lawsuit is filed, there are few aspects of your past life that a court will prevent the other side from discovering. Past criminal behavior, other lawsuits, divorces, income tax returns, former jobs and employers are areas that are routinely discovered during a lawsuit. However, medical information that has nothing to do with the injuries arising out the claim is still privileged.
Many defense lawyers will intentionally try to shame or embarrass the plaintiff in an attempt to shift a jury’s attention away from his client’s negligence. Most lawyers know that juries are less likely to award substantial sums of money to people they do not like. This is why many trials seem to be placing the life of the plaintiff on trial.
In automobile cases, the choice of whether to institute a claim must always consider on which party the fault has been initially placed by the investigating police officer. Moreover, there are certain legal presumptions that operate to place fault on one driver or the other depending on how the accident occurred. For instance, in a rear end collision, there is generally a presumption that the driver who rear ends another car is at fault in the accident. In all claims, the ability to prove fault is a key factor in deciding how to proceed.
Auto cases also should be evaluated by determining the type and availability of insurance coverage. If the available insurance is minimal, the policy limits may very well be tendered by the insurance adjuster without the need to file a claim in court.
Finally, the cost of proceeding with the litigation as compared to the potential recovery should be considered. If a case will cost $10,000 to pursue and the available coverage if the claim is successful is $10,000, the case may not be worth pursuing. Unless the damages are substantial and clearly above the available policy limits, most insurance adjusters will not offer their policy limits in settlement. It is only after the case is developed, depositions are taken and money is spent before most contested cases can be resolved.
Unlike most other types of personal injury cases, automobile accident cases involving injuries are usually worth pursuing with an attorney. This is not because people are rushing out and filing frivolous claims that get paid. It is more a function of the insurance adjusters constantly attempting to “low ball” and mistreat accident victims. Much of the insurance company’s money could be saved by adjusters who fairly compensate victims well before attorneys get involved. However, the sad reality is that most adjusters will not treat an injured person fairly and people will have to hire an attorney to be fairly compensated.
Nearly 200,000 Americans die each year as a result of medical errors. That is like 2 jumbo jets crashing in mid-air, killing everyone aboard every day of the year. Certainly, one such crash would make the news, but deaths resulting from medical errors go unnoticed. Not every bad outcome means that malpractice was committed, however. How are you supposed to know the difference between a medical error caused by negligence and a bad outcome caused by an unfortunate risk or complication of a procedure? Moreover, if medical negligence is involved is a claim really worth pursuing?
Medical malpractice cases are some of the most expensive and difficult cases to pursue in litigation. Statistically speaking, of those cases that do go to trial each year in this country, almost two-thirds of them result in a verdict in favor of the doctor or hospital. That means the malpractice victims only win in one-third of the cases.
Because of the difficulty and expense involved in these cases, only the strongest cases are typically pursued.
The first factor that must be considered is the nature of the alleged malpractice and the severity and permanency of the injury. If a nurse was rude or forgot to give the patient his medicine at a certain time and gave it later without any consequences then a medical malpractice case should not be seriously considered. Rude physicians or nurses should not form the basis for a suit.
Remember, most jurisdictions require the losing party (not the attorney) to pay the costs of the winning party. In a medical malpractice case these costs could easily approach $70,000. Cases that are based on anger, vendettas or that cannot be supported by evidence have no place in the legal system.
In deciding whether or not you have a potential medical malpractice claim you should seek the advice of an experienced medical malpractice attorney. Attorneys without experience in personal injury law and malpractice suits may not be qualified to handle a medical practice cases.
The degree of injury and amount of damages are very important considerations. Even if malpractice occurred, a party that must undergo additional procedures and expenses may be fortunate enough to fully recover from the malpractice. Unless the medical expenses are very high and the period of suffering longer than a year, the recoverable damages will probably dictate that a case should not be brought.
It does not make economic sense for a lawyer or victim to spend $50,000 pursuing a claim worth $50,000. However, when the malpractice has caused a permanent and serious injury, a claim should be seriously considered. One of the factors to consider is whether the medical condition of the victim was such that a bad outcome was going to occur anyway. This may be seen in cases involving terminally ill patients. Failing to diagnose cancer in a patient that had no chance of survival by the time the delay in diagnosis occurred is an example of a case that may not make sense to pursue.
For every case we take, we turn down at least twenty other cases that we do not take. This does not mean that you are wrong to consider bringing a case for suspected medical malpractice. It simply underscores the need to have the potential case reviewed by an experienced medical malpractice attorney.
According to the U.S. House of Representatives, Committee on Government Reform, there are nearly 17,000 nursing homes in the United States that currently care for 1.6 million residents. That figure is projected to quadruple to 6.6 million by the year 2050.
According to the 2000 survey of State Adult Protective Services, a study commissioned by the National Center on Elder Abuse, Adult Protective Services (APS) investigated 396,398 reports of elder abuse in this country. Of that number, APS substantiated 166,019 in the year 2000 alone.
Importantly, these studies have focused on abuse in domestic settings and not specifically in nursing homes. However, it is widely agreed and accepted that abuse and neglect is a common and grossly underreported occurrence in nursing homes. In fact, in a 1990 study, confidential interviews were conducted of 577 nurses and aides that revealed that 10 percent of the respondents themselves had engaged in nursing home physical abuse in the past year, and 40 percent had engaged in mental or psychological abuse in the past year. Eighty-one percent of those interviewed had witnessed at least one instance of psychological abuse in the past year.
A 1997, Time Magazine article projected that as many as 35,000 Americans suffer death or unnecessary pain in nursing homes each year.
These staggering statistics demonstrate that nursing home neglect is a serious problem in this country. Where can people turn for help? If the suspected abuse is immediate and life threatening, call 911 immediately. If the danger is not immediate, most states have adult protective service organizations that regularly receive such reports.
Many people who report or experience elder abuse also want to pursue a civil legal action for monetary damages against the nursing home. However, several considerations should be taken into account before instituting such an action.
Documentation and/or verification of the abuse by a state agency will go a long way in helping provide the proof required to prevail in a lawsuit.
Testimony from independent witnesses is also important to establish. Jurors will be more likely to believe witnesses who do not stand to gain financially if a verdict is rendered for the victim or his family. However, this type of proof is not easy to obtain since most abusing health care providers do not openly abuse residents in front of witnesses.
Another factor to consider is the severity of the injuries. Does the victim now suffer from a permanent physical disability as a result of the abuse? If the abuse is mental, does the victim require extensive therapy to address the issues raised by the abuse?
Finally, the financial stability of the offending nursing home may also be a consideration. Many nursing homes have gone bankrupt and have no insurance to respond to a judgment for damages. In such instances, a civil legal remedy may not be worth pursuing.
If you suspect abuse of a friend or relative in a nursing home and you are considering a lawsuit, you should contact an experienced lawyer who handles these types of cases. These cases are too difficult and expensive to allow representation an attorney with little or no experience with these claims.
Any time you are injured on the job, you should consider making a workers’ compensation claim to cover the medical bills, out-of-pocket expenses and, if you are unable to return to work for more than three days, for indemnity benefits. Whether you should hire a lawyer is another question. On minor injuries that resolve after a few days, a lawyer may not be able to help you obtain more benefits than you can on your own. However, for injuries (especially back injuries) that involve your whole body, you should consult with an experienced workers’ compensation attorney.
Colorado law provides that the surviving spouse is the only one that may bring a wrongful death claim within the first year following death, unless he or she waives that right in writing. After that, legal heirs may bring the claim. Whether the claim “should” be brought depends on the wrongfulness of the death. Death caused by the negligence, recklessness, carelessness or fault of another may be actionable. However, as indicated above, the loss of a family member typically causes great pain and turmoil as well as unimaginable loss within a family. Bringing a claim requires the family to deal with the loss over and over again throughout the litigation. Sometimes this can be painfully difficult and should be considered before bringing any claim.
On the other hand, since the loss is so great, there should be justice. While no amount of money can bring back the dead, it can ease the burden of losing the bread winner in a family, can pay for children’s education, can pay for burial and funeral expenses, and can pay for counseling to the grieving family. Money is the only kind of justice the law allows. It is strongly advised that you speak with an attorney that is not only experienced in wrongful death law, but understands the feelings of losing a loved one and can explain to you the pros and cons of bringing this type of claim.