Personal Injury

Should I File a Personal Injury Claim?

By David Goguen, J.D., University of San Francisco School of Law

If you’ve suffered a serious injury because of someone else’s carelessness, this may not be that tough of a question to answer, especially if it’s pretty clear that the other party was at fault. But many situations are not so cut-and-dried.

If you’re weighing whether or not to pursue an injury claim -- that means filing an insurance claim over the incident or bringing a lawsuit to civil court -- there are a few factors that can help you decide.

How Serious Are Your Injuries?

Any time you think someone else did something that resulted in harm to you, or simply did something that put you in danger of serious harm, it’s understandable to want that person (or that business, or that government agency) to be held accountable for their actions (or for their inaction).

But if your injuries were very minor -- or if you weren’t really injured at all -- then you may want to think twice before you pursue a claim. That’s especially true if there are real questions about how the accident happened, and whether or not you played any part (however slight) in causing or contributing to your injuries.

In most personal injury claims it is safe to expect some level of contentiousness, and you (or your attorney) may need to get into some serious back-and-forth negotiations before you receive a settlement. And if a lawsuit is filed, by accusing the other side of wrongdoing you are opening yourself up to the prospect of interrogatories, depositions, and even an independent medical examination by a doctor retained by the defendant. That’s a lot of potential hassle to go through just to hold someone else’s feet to the proverbial fire.

Have Your Losses Been Paid For?

This is a question that usually comes into play when there is an insurance policy in place to cover the underlying accident, or when your own health insurance covers treatment you received as a result of your injuries.

Doctor visits, x-rays, MRIs, physical therapy, and other medical care may be covered by your health insurance policy, regardless of how your injuries came about. And after a car accident, chances are that the insurance policy of one or both drivers will cover medical bills and vehicle damage.

On the other hand, even if the accident and/or your injuries are covered by a policy, there is always the chance that your insurance rates go up, or that you have to pay a deductible in order for coverage to kick in, so you’re likely out of pocket to some extent.

What’s more, especially if you are seriously injured, not all losses will be covered by insurance. For example, your “pain and suffering” and loss of quality of life are not reflected in any medical bills, but those “damages” would be part of any personal injury lawsuit you decide to file.

How Strong Is Your Case?

This may be the most important question to answer. You need to be able to make a case that the other party -- meaning the other driver in a car accident case, the owner of the property where you slipped and fell, etc. -- is legally responsible for causing the accident, and is therefore to blame for your injuries.

If the other party’s liability isn’t clear, you could be in for a long fight. That’s especially true if there is any evidence at all that you share some measure of fault for the underlying incident.

Finally, If you do file a lawsuit claiming that the other part is responsible for causing your injuries, and your case is found to be without merit -- meaning it is thrown out by the court, and maybe even labeled “frivolous” -- you could end up facing sanctions from the court, and in some states you may even be ordered to pay the other side’s attorney’s fees.

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