Damages in Personal Injury Cases

October 5, 2010

How Does A Jury Know What My Future Medical Bills Will Be?

I broke my hip in a fall-down accident at a local store. The company wouldn’t settle me so I filed a lawsuit. The doctor said I might need a hip replacement in the future. How will a jury award me damages for this surgery?

Well, first you have to win your case. That is, you will have to prove by a preponderance of the evidence that the store caused the dangerous condition or knew or should have known of the existence of the dangerous condition and failed to rectify it.

If you prove the fault of the store, then you can recover your past and future medical expenses (and other types of damages). However, you can recover future medical expenses only if a doctor says that it is more likely than not that you will need hip replacement surgery. If the doctor says that, the jury can consider the cost of the future surgery, which will come from the testimony of the doctor or another witness.

September 28, 2010

Should I See A Doctor About My Injuries?

by The Law Offices of John Day, P.C.

I was in a car wreck yesterday. I thought I was ok but I woke up this morning and feel absolutely horrible. Should I go to the doctor, or should I just tough it out?

You should see your doctor and accurately report the nature and extent of your concerns. Call and make an appointment to get in and see the doctor as soon as you can.

Why? There are three reasons. First, your doctor may uncover a problem that is more serious than you think it is.

September 21, 2010

Do I Have to Pay Income Taxes on My Personal Injury Settlement?

by The Law Offices of John Day, P.C.

I am a Tennessean. I was received some broken bones in a car wreck earlier this year. I spent a couple days in the hospital and missed six weeks of work. The case was just settled and I received a check for a significant amount of money. Do I have to pay income taxes on the money I received?

No, you do not have to pay federal income tax on the money you received

As of today (and for many, many years) there is a special federal law that permits people who receive money in personal injury cases where there has been physical harm to exclude the monies received in a settlement or lawsuit from their income for federal income tax purposes. You do not need to report it to the government and you do not need to report it.

September 13, 2010

What is Demonstrative Evidence?

by The Law Offices of John Day, P.C.

My lawyer said that he needed to spend money on demonstrative evidence to help us win the case. What is demonstrative evidence?

Demonstrative evidence are things that demonstrate or show information to the jury. Demonstrative evidence may be an enlargement of an x-ray showing a fracture in a bone, a metal fixation device removed from a broken bone, a model of the scene of the accident, or a video that depicts a day-in-the-life of someone that suffered a catastrophic injury. Demonstrative evidence also includes computer animations.

Demonstrative evidence tends to educate jurors by allowing them to see or touch something, as opposed to just hearing the spoken word.

September 11, 2010

What is A Structured Settlement?

by The Law Offices of John Day, P.C.

My neighbor mentioned that he settled his personal injury case and received a structured settlement. What is that?

When personal injury and wrongful death cases are settled, money is often paid in a lump sum. In other words, a check is made payable to the claimant and the claimant’s lawyer. The claimant’s lawyer deposits the check in his or her checking account and, when the check has "cleared," the lawyer writes a check to the client. The amount of the check to the client is reduced by attorneys’ fees and expenses, and is often reduced by monies needed to pay off subrogation interests or medical liens.

In a structured settlement, the claimant receives sufficient up-front money to pay attorneys’ fees and expenses, subrogation interests, and liens and some amount of money for the claimant the claimant also receives a contractual right to receive payments in the future. This right is in the form of annuity. Payments can be monthly, quarterly, annually or every 5 years. Indeed, there is virtually no limit to how the annuity can be structured.

August 30, 2010

Why is My Past Medical History Important?

by The Law Offices of John Day, P.C.

I was hurt in a car wreck and hurt my back. The insurance adjuster for the other driver wants to know if I ever had any back pain in my life before the wreck. I don’t think this is any of her business. Can the insurance find out this information about my medical history?

No, she cannot, unless you tell her or you sign a medical authorization which gives her the right to look at your medical and pharmacy records.

However, your prior medical history that is related to the injuries you claim in the wreck is relevant in resolving your claim, and if you don’t give the insurance company the right to see your medical records you will have difficulty getting your bills paid and getting the other compensation the law permits you to recover. The insurance company wants to determine whether you had any prior complaint or injury to the same body part. It also wants to see if you have any other medical condition that it can argued contributed to the accident or can otherwise be used to diminish the value of your case.

August 19, 2010

What Damages are Available to a College Student Hurt in a Truck Wreck?

by The Law Offices of John Day, P.C.

I am a college student who was run off the road by a tractor trailer. I was badly hurt and had to miss a semester of college. It looks like I will have permanent injuries as a result of the wreck. What damages can I recover?

At the outset, let me remind you that no damages can be recovered unless you can prove that the truck driver negligently caused your injury. The case you describe can be difficult, particularly if there was no impact between your vehicle and the truck and if there are no witnesses to the event. An experienced personal injury lawyer can help you determine the likelihood of success of your case.

Now, back to your question. In a personal injury cases arising from accidents with trucks, you can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

August 9, 2010

The Other Driver Doesn’t Have Enough Insurance!

by The Law Offices of John Day, P.C.

I was in a bad car wreck. I had $50,000 in medical bills and missed eight weeks of work (I make $800 per week as a mechanic). I am probably going to have to have another surgery. My doctor also says I will have arthritis for the rest of my life. I just found out that the person who hit me only has $100,000 of liability insurance. That is not enough for what he did to me. Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause. A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased he or she is liable for the rest.

The problem, of course, is collecting from a person who causes harm. To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both. Many people have very few assets and insufficient income to make a payment to the person who they hurt. If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation. (There are some exceptions to this. For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.)

August 3, 2010

Why Do I Have to Repay My Health Insurance Company Out of My Personal Injury Settlement?

by The Law Offices of John Day, P.C.

I just settled my personal injury case and my lawyer tells me I have to repay my health insurance company for paying my medical bills. I have paid health insurance premiums for 25 years and was never in the hospital one time before my wreck! Why do they have the right to get repaid?

Because the insurance policy you have almost certainly says that they have the right to be repaid. That is part of the bargain you struck with them – even though you never read your policy and no agent or representative of your employer mentioned it to you.

Depending on the type of health insurance you have there are several arguments that can be made to secure a reduction in the amount that must be paid back to the insurer. An experienced personal injury attorney will know this area of the law and will work with you to secure a reduction in possible.

July 6, 2010

How is Pain and Suffering Valued?

by The Law Offices of John Day, P.C.

How does a jury determine how much money to give for pain and suffering in a personal injury case?

The jury listens to the evidence and the law as explained by the judge and determines what they believe is a fair amount. There is no formula for determining how much money should be awarded for pain and suffering.

The law simply tells the jurors to use their best judgment to determine how much money to give for pain and suffering. The lawyer for the injured person attempts to help the jury understand the nature and extent of the pain and suffering experienced by his or her client, and the lawyer for the defendant (the person sued) attempts to explain the that pain and suffering was either not real, was not as serious as person said it was, or that the injury is not permanent.