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Personal Injury Cases

Last Updated: Monday, August 29, 2016

There are many different types and degrees of personal injury. Most personal injury claims are related to traffic accidents, accidents at work, slip and fall or tripping accidents, assault claims and injury arising from the use of defect products. A personal injury lawsuit is brought in a civil court and can include both medical and dental accidents.

A malpractice lawsuit can arise when a vendor who is held to a higher standard of duty, such as a doctor or dentist, fails to perform their professional services properly and the result is bodily harm to you.

Bringing a lawsuit is based upon the fault of another party. It can either be intentional or negligent. The injured party called the plaintiff is entitled to monetary compensation depending on the intent or negligence of the responsible party called the defendant.

Intentional means the party meant to hurt or harm you. Negligent means defendant had a duty to act as a reasonable person under same or similar circumstances.

In any lawsuit, the facts determine the outcome and award amount of your case. Keeping a journal of the visits to your doctor and the daily pain and suffering you experience during the course of treatment, is very helpful in remembering the facts. Most cases if settled or go to trial two or three years later when the facts are not as fresh in your mind. Journaling is most helpful to the plaintiff’s attorney in sorting out the details of the case.

The costs incurred are actual medical or dental costs, physical damage costs as well as pain and suffering you may have endured as a result of someone else’s conduct. You might even loose time from work costing you your pay. Keep all receipts of medical costs and a record of time lost from work.

Most plaintiffs’ attorneys represent clients on a “contingency fee basis”. This means the attorney’s fee is a percentage of the plaintiff’s eventual compensation or award from the lawsuit. Typically, in California, a plaintiff’s attorney charges one third of the proceeds recovered if a case is settled out of court or 40 percent if the matter proceeds to trial. The fees are negotiated between the plaintiff client and the attorney evidenced in a retainer agreement. This percentage does not include the costs of filing, court costs, expert witnesses, investigation, dispositions and court reporters.

When you bring a lawsuit as the plaintiff, the defendant, the party you are suing, has a right to discovery. The discovery includes the medical records, employment history and investigation of the site where the injury occurred or the product that caused the injury. The defense attorney will go over all the details of the case in order to provide for a defense.

Each side has a right to take sworn recorded statements from the other side. This process is called the disposition where more facts of the case are discovered. Depending on which side calls the witness, questions are asked of that witness and are recorded by a court reporter who prepares a disposition. This documents will later become a part of the trial.

The injured party may be asked to undergo an Independent Medical Examination (IME) by the defense attorney. This medical examination is conducted by a licensed physician who has no prior contact with the injured party. The physician will conduct an examination that examines the type of injury to determine the extent of the injury and the percentage of disability the injured party may have suffered. A medical opinion is drafted with the findings. These findings will be used to determine the monetary compensation, if any, due by the defendant

There are two types of damages, special and general. Special damages are measurable costs evidenced by medical expenses, lost earnings and property damages. General damages include less measurable damages such as pain and suffering, loss of consortium, the effects of defamation and emotional distress.

Four requirements to prove a person is legally liable to a plaintiff are:

  • The party owed a duty to act reasonably under same or similar circumstances;
  • The party breached that duty;
  • The party’s breached caused you to be damaged;
  • You suffered monetary damages.

The amount that is awarded depends on the severity of the case. Those cases where injuries include broken bones, severed limbs, brain damage, spinal cord injury or damaged lungs causing extreme physical pain and suffering usually receive higher awards.

Additionally, the injured party may be compensated for the lifetime effect of the injury, loss of earning power and future reasonably necessary medical expenses are recoverable.

In California, the time to begin a lawsuit for personal injury is two years from the date or the injury or discovery of the injury. The Statute of Limitations may prevent you from bringing your case to court because you waited too long. Once you are injured, it is best to consult an attorney who works personal injury cases and know your rights before the time expires.

In most cases, the plaintiff’s attorney will work to settle the case prior to going to trial. The court system is crowded at best with much litigation. Expediting the legal matter may work to everyone’s advantage. However, in some more serious matters, trial may be the only option. The plaintiff’s attorney will determine what is the best way to proceed after review of the matter.

Awards are made through either a settlement and release agreement or an ad judgment as a result of a trial. Settlements can be either lump-sum or as a structured settlement in which the payments are made over a period of time.

Personal injury cases may be covered by liability insurance such as auto or home insurance. In the case of automobile insurance, an insurance company will provide a legal defense to the defendant and my settle with the plaintiff. The Plaintiff will want to be represented by an attorney to be sure their legal rights are protected.

When looking for a professional to represent your case, contact the Law Offices of Allan S. Field. Attorney Allan S. Field has many years of experience in personal injury cases. He has represented both plaintiffs and defendants and has works with many insurance companies. The Law Offices of Allan S. Field can assist you in getting your rights heard and compensation for your injury and property damage suffered as the result of someone else’s negligent or intentional conduct.