After a catastrophic injury, putting your life back together and moving toward some sense of normality and closure can be extremely difficult. For many victims, one of the most important steps toward this goal involves filing a lawsuit and holding the negligent parties who caused their injury accountable.
Every successful catastrophic injury claim requires three elements: liability, damages, and insurance coverage. Without sufficient facts and evidence from all three categories, it can prove difficult for victims to recover financially for their injuries.
This article will outline the anatomy of a catastrophic injury lawsuit and why each part is essential for a case’s success.
The First Element: Liability
One of the first things an injury victim must do is establish negligence and liability on the part of the party who caused their injuries. As established by law, negligence is a breach of a legal duty owed by one person to another. Another way to define it in plain language is one party not exercising reasonable care. Liable or negligent parties can include legal entities like businesses and municipal governments in addition to individual persons.
Here are just a few examples of situations that might involve individuals or businesses acting in a negligent manner:
- An auto accident occurs because someone is driving recklessly, or while drunk or distracted
- A person suffers injury or harm because a doctor, pharmacist, or other medical professional fails to do their job properly
- A person is injured by a dangerous product defect that the manufacturer should have known about and corrected
The concept of contributory negligence, where it applies, can complicate the defendant’s liability for negligent actions. In jurisdictions that follow the pure contributory negligence doctrine (including Virginia, Maryland, and Washington, D.C.), if the plaintiff’s own negligence contributed in some way to the accident that caused the catastrophic injury — meaning the plaintiff failed to exercise reasonable care in some way or another, and this failure played a role in their injuries — then the plaintiff cannot recover compensation for the harm they’ve suffered.
Pure contributory negligence thus makes recovering compensation for negligence-related injuries an “all-or-nothing” proposition: if the other side can prove you were even 1 percent at fault for your injuries, you won’t be eligible to receive any compensation for those injuries through a personal injury claim.
An insurance adjuster from the liable party’s insurance company is usually involved after an accident of any kind. One of their jobs is to research and investigate what happened and collect statements from witnesses and others directly affected by the accident. During this time, they will hope to get a statement (recorded or written) from the victim or injured person. The goal is to get the victim to admit to some degree of fault, however small, so that they can dismiss their claim and avoid liability for damages.
The Second Element: Damages
Figuring out damages is the next step in a catastrophic injury lawsuit. Using the available supportive evidence can help you determine the value of your case, and such evidence is essential to building your claim.
Perhaps you already have a preconceived idea about what the damages should be in your case. This idea may come from a settlement offer you received or calculations you did based on your accumulating and future medical bills. It’s important, however, to revisit these ideas throughout the course of your claim and as you gather more documentation and evidence related to your injuries and your medical care.
Because each personal injury case is unique in terms of facts, circumstances, and individuals, there is no set formula to calculate a case’s monetary value. However, there are specific criteria for damages that you can use to classify the costs you’ve incurred and form some idea of how the court may take them into account in your case.
Damages in an injury lawsuit can be based on any of the following:
Any injury to the body and its subsequent effect on the victim’s overall health can be considered in damages. Medical bills play a critical role in establishing bodily injury damages.
Physical Pain and Mental Anguish
Any residual physical pain or mental anguish that the victim suffers because of the accident can be considered. This category can include ongoing complications like chronic muscle spasms, light sensitivity, headaches, anxiety, and depression.
Disfigurement or Deformity
Whether the disfigurement or deformity came from the accident itself or from a medically necessary procedure as a result of the accident, this permanent and potentially life-altering change in physical appearance might provide grounds for additional compensation. Damages in this category could also include any humiliation or embarrassment a victim is subjected to as a result of the disfigurement or deformity. It is not necessary to give a personal testimonial about the humiliation or embarrassment in order to receive such damages.
Current and Future Inconvenience
Catastrophic injuries often completely upend a person’s life, creating enormous amounts of inconvenience. Examples of such inconvenience include the time and money spent attending medical appointments, altering one’s lifestyle (for example, changing housing or jobs as a result of the injury), and seeking help from others to complete daily tasks and self-maintenance.
Current and future medical expenses (as they relate to injuries sustained as a result of the negligent party’s actions) can be recovered. Virginia law says that a personal injury plaintiff may recover against the entire amount of a medical bill, not just the portion that the insurance company actually pays to the medical provider. As for future medical expenses, anything that is reasonably related to the injury — like physical therapy after a car wreck or ongoing care for migraines after a traumatic brain injury, for example — can be considered.
Lost Wages and Future Earnings
After a devastating injury, the victim often cannot work for an extended period of time and may never recover the earning power they had before they were hurt. All of the wages and potential future earnings the victim lost can be considered when calculating damages. Even if the victim received a wage (either a salary from their employer or income from another source, like short- or long-term disability), they are still allowed to seek compensation for lost wages.
From each of the categories a victim wishes to collect damages, he or she must present sufficient evidence and facts to support the claim. Each element of the total damages claimed must be accompanied by a reasonable estimate of the total dollar amount as well as evidence of how the defendant’s negligence created the damages. Note that victims may recover damages based on an aggravation of a pre-existing condition as long as the condition worsened directly as a result of the defendant’s negligence (although proving this in court can pose a challenge).
The goal in establishing damages is to restore the victim’s life to some semblance of what it would look like had they not been injured. In cases of catastrophic injury, though, it can be difficult to establish damages accurately because the victim is so far removed from the lifestyle they enjoyed before the accident. No amount of money will bring a normal life back for someone who suffers from paralysis or a devastating brain injury, for example. In addition, the extensive medical treatment involved in a catastrophic injury usually creates a staggering amount of paperwork and documentation to keep track of, making it even more complicated to assess damages in these cases.
The Third Element: Insurance Coverage
The insurance coverage of the liable party as well as your own personal insurance coverage are both key factors in how much you will be able to recover in a catastrophic injury lawsuit. When you are injured due to someone else’s negligence, it is important for your medical provider to bill your medical insurance first. This is especially important if you were injured in an auto accident.
After an injury that is clearly someone else’s fault, it can be easy to assume that the at-fault party or their insurance will pay your bills. But this is a mistake, and it could cost you a lot of money and cause you quite a bit of frustration later on if you try to bill the other party’s insurer before your own health insurance pays your medical bills.
Take, for example, a $2,000 doctor’s visit after a car accident. You pay a $30 copay and your health insurance coverage addresses the remaining balance. Because insurers and healthcare providers have contracts that dictate what an insurance company will pay for specific services, the insurance company will typically pay only about $200, leaving the remaining $1,800 as a write-off. However, as stated before, plaintiffs in Virginia may recover against the entire amount of a medical bill, which means that the victim would still potentially be able to recover the full $2,000 in damages.
If the medical bill goes to the at-fault person’s car insurance company, however, they will pay the physician the full $2,000 (because there is no contract for any write-offs), and at this point, the insurance company has fulfilled their obligation. The victim cannot recover any of this amount through a personal injury claim and is left with no compensation.
As you can see, it’s very important to understand the nuances of the law in order to accurately assess insurance coverage and predict how it will impact a personal injury case. The laws around recovery for victims of negligence (combined with the evidence and the facts of your unique situation) will dictate the outcome of your case, but they aren’t always intuitive or easy to understand, which is why an experienced attorney can serve as your most indispensable resource when you need to seek compensation through a personal injury claim.
Perry Charnoff PLLC
If you or someone you love has suffered a catastrophic injury as the result of another person’s negligence, contact the attorneys at Perry Charnoff PLLC. Individuals living in Virginia, Washington, D.C., or Maryland, can turn to us for guidance and advocacy throughout the complex process of a personal injury claim, including the time-consuming work of gathering and organizing evidence for your case.
We use our years of trial experience and our extensive network of medical experts to advocate for victims and hold the negligent parties who caused their injuries accountable. Call us today at (703) 291-6650 or FILL OUT OUR ONLINE CONTACT FORM so we can schedule a free, no-risk consultation today.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.