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Personal Injury Damages FAQ

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Q: Do I have to go through an operation for the insurance company to compensate me for suffering?

  • A: It's not likely you're going to have to go through the operation to recover for the cost of it. In civil claims, you have the burden of proof to prove your damages, but only by preponderance of the evidence. If your doctor says it's more likely than not that surgery is going to be required but you want to wait to do the operation, there's no reason that you can't be compensated for the cost of that operation and the pain and suffering associated with the operation.

Q: Do most cases go to trial to recover damages?

  • A: Most cases don't end up in trial. About 95 percent of personal injury cases that are filed settle prior to trial.

Q: How does a prior injury affect the value of my claim?

  • A: Generally, a person who's negligent or careless is responsible only for the harm he or she caused. That means that you have to prove there was negligence and that the negligence caused your injury. If you had a prior injury, their negligence didn't cause your initial injury. However, if you can prove that the negligence made the injury worse, you can collect for the degree to which the condition has been aggravated.

Q: Is there a minimum or maximum amount that can be recovered in a personal injury settlement?

  • A: No, there's no minimum or maximum settlement amount.

Q: What are the issues affecting the damages that can be recovered?

  • A: Every case addresses three issues:
    • Liability - was someone negligent?
    • Damages - the amount that will fairly and adequately compensate you for your injuries
    • Source of collection - is there insurance or other assets from which damages can be recovered?

Q: What does "preponderance of the evidence" mean?

  • A: Preponderance of the evidence means whatever is more likely than not.

Q: What's a normal settlement amount?

  • A: Insurance companies will pay not because they like you or they think it's fair, or because they settled a similar case for a certain amount. They pay because they've no other alternative. The proper value of a claim is established when an experienced trial lawyer reviews and interprets the case information, such as:
    • The amount of the medical bills
    • Loss of past income
    • Future medical bills
    • How old you are
    • Permanent limitations you now have
    • Impact on our future earning capacity
    • Activities you no longer do
    • Activities you do but don't enjoy as much
    • Prognosis for further problems
    • Strength of lay witness testimony, and so forth
    A good lawyer begins with one end in mind - what a reasonable jury would award as fair and adequate compensation. You must always negotiate from a position of strength with the other side. That means that the other side sees that you and your lawyer have put together the necessary lay and expert witnesses to go to trial.

Q: What's considered "pain and suffering?"

  • A: Pain and suffering means not only the fact that you're physically hurting, but also the mental anguish of going through potential surgery and avoiding activities that you used to do before the accident.

Q: What's contributory negligence?

  • A: Your actions may have contributed to the accident and the injuries you received. In some cases, contributory negligence on the part of the injured party may reduce the amount of the settlement awarded.

Q: What's included in a bodily injury claim settlement?

  • A: The term "bodily injury claim" usually refers to a "personal injury claim." Economic damages would include, but aren't limited to, lost wages, medical bills, rental car charges and so forth. Pain, suffering, humiliation and distress all fall within the term "general damages." If you settle your bodily injury claim, it must include all economic and general damages available to you, or you'll likely lose your right to recover for those losses.

Q: What's subrogation?

  • A: Generally, a health insurance plan or policy has a subrogation provision, which says that the health insurance company of the injured party is entitled to be paid back from the third-party wrongdoer's insurance company. Your lawyer usually handles this, so that two things occur:
    • The opposing insurance company settles when the health insurance company has agreed to release whatever claim they have against them.
    • The health insurance company accepts as full and final payment the amount agreed upon for the services received. Health insurance companies routinely take less than the full amount owed to them because of the costs incurred in going out and getting fair and adequate compensation. Some states have law that provides that the subrogation claim of a health insurance company can't be paid until you're made whole.

Q: When should I settle my case?

  • A: Not until you're sure of the nature and extent of your injuries and whether you'll need continuing medical attention. You should know whether you'll be able to work in the future and how the injury will affect your ability to do normal household tasks, sports and hobbies before you and your attorney discuss money with the insurance company or others.