Elements of a Personal Injury Case

In order to be successful, an injured party (Plaintiff) in a personal injury case must satisfy three (3) requirements:  (1) Proof of Fault (Liability) of the person who caused the injury (Defendant); (2) Causation of Plaintiff’s injury; and (3) Damages Incurred by Plaintiff.  Proof of liability in a negligence case consists of evidence that the Defendant had a duty to act in a reasonably prudent manner and failed to do so.  The standard of care of the Defendant can be determined from statutes or case law in most cases.  Causation means that the Defendant’s act or omission to act was a substantial factor in causing the injury of the Plaintiff. Causation is sometimes established through expert testimony. The law compensates injuries through payment of money for damages.  Damages can be of two (2) types:  general damages, such as Plaintiff’s pain, suffering and inconvenience; and special damages (sums of money Plaintiff is obligated for), such as medical bills and wage loss.  It is important to remember that Plaintiff’s success often depends on insurance.  That is, Defendant must have insurance coverage in order for Plaintiff to be compensated for his or her damages, unless the Defendant has the funds available to pay the damages awarded.

Statutes of Limitations

The statute of limitations is the maximum time which a Plaintiff has to file a lawsuit.  It is ordinarily computed from the date of loss or accident.  In California the statute of limitations for most personal injuries is two (2) years from the date of the accident.  In addition, if the Plaintiff was injured by the act or omission of a public entity or public employee, there is a requirement that the Plaintiff file a claim with the public entity.  The claim must be filed within six (6) months of the date of the injury or accident.  This claim must be timely filed or Plaintiff will lose his or her claim.  The public entity will either accept or reject the claim, in which case the Plaintiff may then file a lawsuit.  It is always best to consult an attorney to determine the correct statute of limitations.  It depends on the characterization of the cause of action and the identity of the parties who are liable.  Seeking advice soon after your accident is always best.  The more time that passes, the more difficult it can become to locate evidence and identify witnesses that may be critical to your case.

The Necessity of Insurance

In California it is unlawful to drive a motor vehicle unless the driver and owner are insured.  The minimum amount of insurance that the driver and owner must carry is $15,000 per person and $30,000 per occurrence for bodily injury liability, and $3,500 per occurrence for property damage.  Notwithstanding this law, some people drive uninsured.  For this reason, one should always carry uninsured motorist liability coverage.  This coverage protects the driver and occupants of your vehicle if they are involved in a collision with another vehicle that is uninsured or even underinsured.  A vehicle is underinsured when its coverage limits are less than the amount of your damage.  If you have purchased Underinsured Motorist coverage, your own policy picks up the difference between the policy limits of the underinsured driver and your own underinsured motorist policy limits.  Uninsured motorist (UIM) coverage is economical compared to collision loss coverage (damage to your vehicle).  Therefore it is always advisable to carry the most UIM coverage that you can afford.  Consider how much insurance you would want to cover catastrophic medical bills and disabling injuries that could occur, in the event the party at fault has insufficient limits.  For those that persist in driving uninsured, California by initiative adopted a law that denies recovery for pain and suffering if they are injured in a vehicular accident and are driving uninsured.  (Civil Code Section 3333.4)  An uninsured driver can still recover economic damages such as medical bills and wage loss.  A driver who is convicted of driving under the influence and was involved in an accident while so driving may not recover for his or her pain and suffering.

What to Do in Event of an Injury Accident

  1. First and foremost, seek prompt medical attention.   Your injuries need to be diagnosed, treated, and documented.
  2. If your injuries are serious, consult an attorney immediately.
  3. Identify the parties involved in the accident.  Find out the names and addresses of any witnesses.
  4. Report your claim to the responsible party’s insurance and to your own insurance.
  5. Verify the policy limits of your policy and the policy limits of the other parties if they will disclose it.
  6. Have a friend or relative take photos of your vehicle, your injuries such as scars or bruising, and of the scene of the accident.
  7. Have your health insurance cover your medical bills first.  If you have medical payments insurance, you may use it to pay medical bills.
  8. Obtain the traffic collision report.
  9. Follow up with your doctor.  Ask for a referral to physical therapy or an appropriate specialist.
  10. Consult with an experienced personal injury attorney.  Generally, it is best to avoid giving statement or negotiating with an adjuster prior to consulting an attorney.  The attorney can perform some of these tasks for you.
  11. Keep a journal during your recuperation.  It will help you remember your pain symptoms and document your recovery.

Personal Injury Settlements

Injuries resulting from auto accidents often take six (6) months to one (1) year, and sometimes longer to heal.  Your attorney will be gathering information, obtaining medical records, and investigating the circumstances during this time.  Do not try to settle a personal injury case prior to six (6) months after the injury.  Generally, you must have a sense that you have recovered to your pre-accident state of health, or at least are not further improving.  When you settle your case, the insurance company will ask you to sign a “Release of All Claims.”  This states that in return for payment of a fixed sum of money, you forever release the responsible party from any and all claims.  You may not thereafter sue the responsible party for your injuries.  If a new injury manifests itself after that, you will not be able to recover for it.  Therefore, it is important to be fully healed and if not, to build into the settlement enough money to cover the costs of future pain, suffering, medical bills and lost wages.

When a minor (under age 18) is injured, the law requires a parent or guardian to be appointed to represent the interest of the minor.  Any settlement reached must be approved by the Superior Court.  A minor’s settlement funds are typically retained in an insured account that is held for the minor until he or she turns eighteen (18).  Often, sizable settlements for minors are structured into a lump sum annuity that accumulates interest and pays out tax-free at designated ages.

Many factors are analyzed to determine the amount of a personal injury settlement, which should be discussed with your attorney.  These may include the amount of medical bills and medical liens, wage loss or lost income, seriousness of your injury, whether you have residual injuries and your doctor’s prognosis for your future health.  The insurance limits of the responsible party are often a limiting factor.  That is why it is important to carry underinsured motorist coverage with high limits.  Our office can assist you in negotiating a settlement of your UIM claim, in addition to your claim against the responsible party.  There is a process of binding arbitration to settle unresolved UIM claims.

The portion of a personal injury settlement that represents pain and suffering is not taxable.  If the portion that represents lost income or wages can be identified, that portion is taxable.  Generally, a personal injury settlement is the separate property of the injured spouse, but may be subject to division in a divorce in certain circumstances.

Our office handles all aspects of personal injury representation, from gathering of information, to out of court settlement procedures such as arbitration and mediation, settlement negotiations, negotiation of medical lien amounts, the filing of a lawsuit, and all stages of litigation from discovery through trial.  An experienced personal injury attorney on your side is the best assurance of an acceptable settlement or a good result at trial.

“Balance Billing” Liens Prohibited

When hospitals treat a personal injury patient, and are made aware of a third party that may be responsible, they are entitled to serve a lien on the Plaintiff’s attorney for the reasonable value of medical services rendered, to be recovered in the event of settlement or a court judgment.  This is known as the Hospital Lien Act (Civil Code Section 2045.1).  Most hospitals have agreements with large health insurance companies, to charge lowered rates or to serve a patient population for a flat rate.  Some of the hospitals nevertheless had a practice of serving liens (“balance billing” liens) that were in the amount of the full customary and reasonable charges, less a credit for the health insurance payment.  The California Supreme Court outlawed this practice in the case of Parnell v. Adventist Health System (2005) 35 Cal. 4th 595.  This case held that after payment of the negotiated amount by Plaintiff’s health insurance, there was no debt of the patient remaining.  No lien could attach without an underlying debt supporting it; hence “balance billing” liens were invalid.

At our office, we keep abreast of new developments in the field of personal injury law.  We negotiate directly with medical lien holders, to ensure the client receives the highest net settlement.