I’ve Been Injured – What Are My Rights? by Deborah Nelson

Most people who have been injured as a result of someone else’s negligence know that they have the right to hire a lawyer and that they have some kind of rights, but they often aren’t sure what they are entitled to. Although every case is unique, this is a general list of the things that you may have a right to if someone else injures you:

• Medical Expenses (past) – if you incur medical expenses as a result of injuries you suffer due to someone else’s negligence, you are entitled to demand that they pay your medical expenses. However, they won’t be required to pay those expenses until you are ready to settle your claim. This means that it is important for you to have some other way to pay your medical bills while you are recovering so that you can get the medical care you need. Common sources of funding are Personal Injury Protection insurance (which is part of your auto insurance, if you purchase it), health insurance (including Medicare and Medicaid), or personal savings.

• Medical Expenses (future) – if you suffered a permanent injury as a result of someone else’s negligence and you will require medical treatment in the future (i.e. after your case is resolved), you are entitled to demand that the person who injured you pay for that now, rather than in the future. To do this, we will have to work with your doctors to get sufficient proof of the type of treatment you will need, the estimated cost for that treatment, and a causal relationship between the injury and the future treatment. This money will be paid to you in a lump sum when you resolve your case, so it is important to include all medical expenses you may reasonably require.

• Lost Wages (past) – if you missed time from work, regardless of whether you lost income (i.e. even if you used vacation days or sick leave), you are entitled to demand that the person who injured you reimburse you for the wages you lost. In order to do this, we will have to prove that you were employed, the number of hours you usually worked, your rate of pay, how much work you missed as a result of the injury, and that there was work available for you if you had been physically able to work. We may also have to provide copies of your prior income tax returns to verify your prior income. Of course, you must have been taxed on your earnings in order to be able to make a wage loss claim!

• Lost Wages (future) – if you are unable to return to work as a result of the injuries you suffered, you are entitled to demand that the person who injured you compensate you for the wages you will lose in the future. This is also known as an “earning impairment claim.” If you are able to return to employment, but at a lesser paid position or career, we may also be able to make a claim for the difference, as well as retraining that may be required. To prove this claim, we will need your doctor to agree that you cannot return to your prior job and we may need to hire a vocational rehabilitation specialist to test you and determine what types of jobs you would be best suited for, given your education, age, and physical injuries.

• Incidental Out-of-Pocket Expenses – sometimes people spend money as a result of being injured. Examples are monies you pay to people to babysit your children, clean your house, mow your lawn, or prepare your meals because you are too injured to do those things yourself. People also lose money sometimes because they were injured. Examples of that are non-refundable plane tickets or travel arrangements for a trip you were unable to go on, gym dues, etc. Depending on the circumstances, you may be able to be reimbursed for these expenses from the person who injured you. In addition, people sometimes need to incur expenses in the future as a result of their injuries. This occurs most often in the case of people who have suffered permanent disabling injuries. For example, they may need to buy (and eventually replace) a wheelchair. They may require in-home care, they may require a case manager to handle their finances, etc. Again, depending on the circumstances, you may be entitled to reimbursement for these expenses.

• Disfigurement – Some injuries case a permanent physical scar that remains, despite medical treatment. If this happens to you as a result of someone else’s negligence, you may be entitled to compensation for it.

• Loss of Enjoyment of Life (past) – Loss of enjoyment of life is often referred to as “pain and suffering.” It encompasses all of the intangibles that are changed temporarily or permanently after a person is injured due to someone else’s negligence. It is unique to that person and depends on their level of functioning and activity before the injury, as well as the degree to which those things were impaired as a result of the injury. This is the most difficult aspect of any case to value. As a result, it is important for us to get to know you and what this injury meant to you. Every case has a story and this is the area where telling the story of your injury is often most important.

• Loss of Enjoyment of Life (future) – Future loss of enjoyment injuries are solely for what you may reasonably be expected to experience in the future, as a result of your injuries. If you have not suffered a permanent injury, this claim does not exist. However, if the injury you suffered is permanent, you are entitled to seek compensation for your losses going forward.

• Loss of Consortium – If a minor child’s parent is injured or a person’s spouse is injured, as a result of the negligence of someone else, that child or spouse may be entitled to pursue a claim. “Loss of consortium” refers to the loss of companionship, love, affection, and services that the injured person provided before they were injured. Quite often, the injured person cannot perform the same role in their family or relationship after they have been injured, which results in the other family members pitching in and doing things that the injured person would otherwise have done. Again, this type of claim is very difficult to value and it is important for us to get to know you and how this injury has affected you in order to properly value this claim. Each claim depends on the specific facts and circumstances of the injury and that person’s life. Some of these claims are very small, while others can be larger.

The things like medical bills and lost wages that you can put a hard number on are obviously easier to value. Things like disfigurement and loss of enjoyment of life are much more subjective and difficult to quantify. For that reason, the specific facts of your case are important, as is your physical condition before you were injured, the activities you engaged in before you were injured, and the degree to which your injuries prevent or impair you from engaging in them now.

There are a few additional things to keep in mind:

1. The person who injured you is responsible for compensating you for any injury they cause, any pre-existing condition they worsen, or any pre-existing condition that was dormant but became active and painful and/or disabling as a result of the injury. However, they are not required to compensate you for any injury that was not caused by their actions or any physical condition that resulted from the natural progression of any pre-existing condition you had.

2. You do not have to be entirely “fault free” in order to pursue a claim. In Washington, you are entitled to be somewhat at fault for your own injury and still recover something, as long as someone else was at least 1% at fault for your injuries. However, the amount of your compensation will be reduced by your degree of fault. For example, if a jury determines that you are entitled to $100,000 in compensation, but that you are 25% at fault for your injuries, you would only receive $75,000 (representing the 75% negligence of the other person). This protects against someone recovering “a windfall” if they are significantly at fault for their own injuries. As a practical matter, most attorneys will not accept a case where it is apparent that the injured person was significantly at fault for their own injuries.

3. You have only one opportunity to receive compensation. If your case is resolved by way of settlement, you cannot later seek an additional settlement if it turns out that your losses were bigger than initially anticipated or if it turns out that you need more money to provide all of the required care you need due to your injuries. Likewise, a jury will only issue one verdict to compensate you. You can never go back to court to seek more money. For that reason, it is important to consider all aspects of damages and value them accurately so that you will receive the compensation you need and deserve.

Deborah Nelson is a Seattle, Washington trial lawyer and partner at Nelson Boyd, PLLC. She has practiced extensively in the federal system and in state trial and appellate courts, with a focus on complex insurance coverage and bad faith issues, traumatic brain injury, wage & hour claims, legal malpractice and plaintiff’s personal injury. http://www.nelsonboydlaw.com/

This Post Has 2 Comments

  1. Thomas Greer says:

    This is a very comprehensive, well written article. Great job providing the public with useful and free information. Keep up the good work.

  2. James Cook says:

    Good advice.

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