John D. Winer, Attorney at Law, Oakland, CA
In California, legal cases can be brought for personal injury. Although there is no special definition for “serious personal injury,” these type of injuries are generally thought to have long term or permanent consequences that involve physical, psychological or economic disability or a significant impact on a person’s life.
Most broken bones, herniated discs, significant burns and injuries involving surgery would fall into the category of “serious.”
Injuries to the brain or spinal cord are almost always considered “serious” personal injuries. Certainly the loss of a limb or an essential organ would qualify.
Does There Have to be Fault to Recover Damages?
In California, to recover in a personal injury lawsuit, a person must establish the fault of another person, entity or corporation. California is not a no-fault State. (However, under California Worker’s Compensation law, if an employee is injured at work, he or she can bring a Workers’ Comp. case regardless of fault although the damages awarded in such a case are extremely limited.)
The wrongdoing for which a person can recover can either be negligent or intentional. In certain cases, such as an injury caused by a defective product, no fault need be proven.
Can a Plaintiff Recover in a Serious Personal Injury Case Even If They Are Partially at Fault?
A plaintiff can recover even if he or she is also at fault. California is a comparative negligence State in which a negligent plaintiff can recover damages; however, their monetary recovery is reduced by the amount of their fault. For instance, if a court or jury finds that a plaintiff’s damages should be valued at a $1,000,000, but finds the plaintiff 25% at fault, his or her recovery would be reduced by $250,000 to $750,000.
Claim for Loss of Consortium
A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.
There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.
Should Experts Be Utilized in these Cases?
In almost every serious personal injury case, expert witnesses are utilized to prove fault and damages. Good law firms generally retain many different types of engineers and liability experts in cases where there is disputed liability (i.e., fault). Also, if there is an issue as to whether an accident caused serious personal injury, the attorney should retain biomechanical engineers and biomedical engineers to prove that the traumas plaintiff was subjected to was capable of causing a severe bodily injury. Further, it is generally important to retain expert physicians and psychotherapists to describe the details of an injury to a judge, jury, insurance adjuster or defense attorney. The use of highly qualified experts can be expensive and add to the cost of the case; however, it generally leads to a more likely and higher recovery on behalf of the plaintiff.
How Soon Must a Serious Personal Injury Case Be Brought After an Accident?
Although there are a few exceptions, generally speaking in California a case for serious personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.
The more serious the injury, the more important it is for a plaintiff attorney to perform a thorough investigation.
Whether the injury is caused by negligent or intentional misconduct, an early investigation should be performed, if at all possible, to establish liability, causation and, sometimes, damages.
If the serious personal injury was caused by an accident, the accident scene must be carefully investigated, whether it involves a car accident, construction accident, dangerous condition of property, defective product, pedestrian accident, bicycle or motorcycle accident.
Whatever physical evidence can be maintained, should be maintained. For instance, if a serious bodily injury occurred in a motorcycle accident, the motorcycle should be maintained in the same condition as it was found immediately after the accident.
The accident scene should be combed for any evidence which gives any hint as to how the accident happened. Videos and photos should be taken documenting the condition of the instrumentality(ies) of the serious bodily injury and the scene of the injury. Accident scenes can change dramatically over time; therefore, it is important to document what the scene was like at the time of the accident as soon as possible after the accident.
Witnesses should be contacted and statements should be taken from favorable witnesses. Records should be obtained and searched thoroughly.
In a serious bodily injury case, the wrongdoer who is most obviously responsible for the injury may not have enough insurance or assets to cover the plaintiff’s losses. Therefore, the investigation should include an explanation of other potential defendants who were at fault for causing plaintiff’s serious personal injury.
M. What Should Be Considered in the Settlement of a Serious Bodily Injury Case.
Determining the value of a serious personal injury case is something of an art form. No two cases have the same value.
Generally speaking, the two best ways to determine the value of a serious bodily injury case are to look at jury verdict reports from some other similar cases that have been tried in the past and to perform a mock trial/focus group in which the case is presented in a modified form to a number of people who act like prospective jurors and give their thoughts on the case and sometimes the amount of money that they would award if they were jurors in the case.
It is critical that a plaintiff’s attorney completely and thoroughly works up a serious bodily injury case for settlement. Too many attorneys simply collect the records and bills, order a report from the treating doctor and attempt to settle this case. This practice if fine in the case of a minor injury; however, it is wholly inadequate in a serious personal injury case.
In a serious injury case, the attorney should first make sure that every expert that is needed to pin down liability is promptly retained.
Once liability has been pinned down, the plaintiff’s attorney should consider whether or not there will be any issue as to whether or not the subject trauma caused the serious personal injury and in those cases, hire a biomedical engineer or biomechanical engineer to testify.
For instance in a traumatic brain injury case, there will generally be an issue as to whether or not there was enough force in the accident to cause a brain injury. A biomedical or biomechanical engineer can study the forces involved in the accident and give an expert opinion as to whether or not there was enough force to cause a traumatic brain injury. This technique can also work in other injury cases. Further, the damage aspects of the case should be thoroughly worked up.
A treating doctor or psychotherapist may be in a position to best describe the plaintiff’s injuries or they may not. Plaintiff’s attorney should consider retaining the best specialists available to speak to the extent of the plaintiff’s injury. For instance, in a knee injury case, the treating orthopaedist may have been perfectly adequate to perform a knee repair surgery. However, plaintiff attorney may be able to retain a knee specialist who will testify that the nature of the injury will require multiple surgeries in the future which will, of course, greatly increase the value of the plaintiff’s case.
In addition, even in a case involving a significant physical injury, plaintiff attorney should consider retaining a psychologist or psychiatrist to evaluate the patient and speak to the extent of the plaintiff’s emotional distress.
Further, the case may call for a vocational expert to be retained to testify to the plaintiff’s loss of earning ability and capacity, and what the value of that loss will be.
Finally, an economist should be usually be retained in a serious personal injury case to perform calculations and testify to the present value of plaintiff’s future losses.
Unfortunately, a thorough work up of a serious personal injury case like indicated above may cost $30,000 to $100,000 or even more. However, the money is well spent because it should increase the settlement value of the case far beyond the dollars spent on the work up.
Most good plaintiffs attorneys will advance the costs of the litigation and know the importance of spending money to make money at settlement or trial.
This article was authored by John D. Winer. Winer, McKenna, Burritt & Tillis LLP
Winer specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit our Oakland personal injury attorney page for more information or for a free online consultation.