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| If you have been injured at the fault of someone else,
chances are you may have compensation coming to you. Follow the questions
and answers below to help determine what to do with your current situation. • When should I consider a claim for auto injuries? • When should I consider a claim for medical malpractice? • When should I consider a claim for nursing home neglect? • When should I consider a claim for a work accident? • When should I consider a claim for wrongful death? When Should I Consider a Claim for Auto Injuries? (go to top of document) Each year nearly 3 million Americans are injured in automobile accidents. Another 60,000 Americans are killed in accidents. Not every accident involving death, injury or property damage results in a claim or lawsuit. Not every accident should result in a claim. How do you know when to make a claim and when not to make one? The answer to this question depends on several factors. Probably the first and foremost consideration is the nature and extent of your injuries and losses. Obviously, minor injuries and losses may not be worth the heartache associated with bringing a formal claim as a result of the accident. Frequently, poor treatment by the insurance adjuster will lead a client, who otherwise would not have filed a lawsuit into proceeding in court. Many people simply want to be reimbursed for their out of pocket medical and other expenses. It is only after such minimal claims are denied or greatly reduced by the insurance adjuster do clients decide to proceed to hire an attorney. Another factor commonly considered by clients when contemplating whether or not to bring a legal claim is the exposure of their private life and information. When a lawsuit is filed, there are few aspects of your past life that a court will prevent the other side from discovering. Past criminal behavior, other lawsuits, divorces, income tax returns, former jobs and employers are areas which are routinely discovered during a lawsuit. However, medical information that has nothing to do with the injuries arising out the claim is still privileged. Many defense lawyers will intentionally try to shame or embarrass the plaintiff in an attempt to shift a jury's attention away from his client's negligence. Most lawyers know that juries are less likely to award substantial sums of money to people they do not like. This is why many trials seem to be placing the life of the plaintiff on trial. In automobile cases, the choice of whether to institute a claim must always consider on which party the fault has been initially placed by the investigating police officer. Moreover, there are certain legal presumptions that operate to place fault on one driver or the other depending on how the accident occurred. For instance, in a rear end collision, there is generally a presumption that the driver who rear ends another car is at fault in the accident. In all claims, the ability to prove fault is a key factor in deciding how to proceed. Auto cases also should be evaluated by determining the type and availability of insurance coverage. If the available insurance is minimal, the policy limits may very well be tendered by the insurance adjuster without the need to file a claim in court. Finally, the cost of proceeding with the litigation as compared to the potential recovery should be considered. If a case will cost $10,000 to pursue and the available coverage if the claim is successful is $10,000, the case may not be worth pursuing. Unless the damages are substantial and clearly above the available policy limits, most insurance adjusters will not offer their policy limits in settlement. It is only after the case is developed, depositions are taken and money is spent before most contested cases can be resolved. Unlike most other types of personal injury cases, automobile accident cases involving injuries are usually worth pursing with an attorney. This is not because people are rushing out and filing frivolous claims that get paid. It is more a function of the insurance adjusters constantly attempting to "low ball" and mistreat accident victims. Much of the insurance company's money could be saved by adjusters who fairly compensate victims well before attorneys get involved. However, the sad reality is that most adjusters will not treat an injured person fairly and people will have to hire an attorney to be fairly compensated. When Should I Consider a Claim for Medical Malpractice? (go to top of document) Nearly 200,000 Americans die each year as a result of medical errors. That is like 2 jumbo jets crashing in mid-air, killing everyone aboard every day of the year. Certainly, one such crash would make the news, but deaths resulting from medical errors go unnoticed. Not every bad outcome means that malpractice was committed, however. How are you supposed to know the difference between a medical error caused by negligence and a bad outcome caused by an unfortunate risk or complication of a procedure? Moreover, if medical negligence is involved is a claim really worth pursuing? Medical malpractice cases are some of the most expensive and difficult cases to pursue in litigation. Statistically speaking, of those cases that do go to trial each year in this country, almost two-thirds of them result in a verdict in favor of the doctor or hospital. That means the malpractice victims only win in one-third of the cases. Because of the difficulty and expense involved in these cases, only the strongest cases are typically pursued. The first factor that must be considered is the nature of the alleged malpractice and the severity and permanency of the injury. If a nurse was rude or forgot to give the patient his medicine at a certain time and gave it later without any consequences then a medical malpractice case should not be seriously considered. Rude physicians or nurses should not form the basis for a suit. Remember, most jurisdictions require the losing party (not the attorney) to pay the costs of the winning party. In a medical malpractice case these costs could easily approach $70,000. Cases which are based on anger, vendettas or which cannot be supported by evidence have no place in the legal system. In deciding whether or not you have a potential medical malpractice claim you should seek the advice of an experienced medical malpractice attorney. Attorneys without experience in personal injury law and malpractice suits may not be qualified to handle a medical practice cases. The degree of injury and amount of damages are very important considerations. Even if malpractice occurred, a party who must undergo additional procedures and expenses may be fortunate enough to fully recover from the malpractice. Unless the medical expenses are very high and the period of suffering longer than a year, the recoverable damages will probably dictate that a case should not be brought. It does not make economic sense for a lawyer or victim to spend $50,000 pursuing a claim worth $50,000. However, when the malpractice has caused a permanent and serious injury, a claim should be seriously considered. One of the factors to consider is whether the medical condition of the victim was such that a bad outcome was going to occur anyway. This may be seen in cases involving terminally ill patients. Failing to diagnose cancer in a patient that had no chance of survival by the time the delay in diagnosis occurred is an example of a case that may not make sense to pursue. For every case we take, we turn down at least twenty other cases that we do not take. This does not mean that you are wrong to consider bringing a case for suspected medical malpractice. It simply underscores the need to have the potential case reviewed by an experienced medical malpractice attorney. When Should I Consider a Claim for Nursing Home Neglect? (go to top of document) According to the U.S. House of Representatives, Committee on Government Reform, there are nearly 17,000 nursing homes in the United States that currently care for 1.6 million residents. That figure is projected to quadruple to 6.6 million by the year 2050. According to the 2000 survey of State Adult Protective Services, a study commissioned by the National Center on Elder Abuse, Adult Protective Services (APS) investigated 396,398 reports of elder abuse in this country. Of that number, APS substantiated 166,019 in the year 2000 alone. Importantly, these studies have focused on abuse in domestic settings and not specifically in nursing homes. However, it is widely agreed and accepted that abuse and neglect is a common and grossly underreported occurrence in nursing homes. In fact, in a 1990 study, confidential interviews were conducted of 577 nurses and aides which revealed that 10% of the respondents themselves had engaged in nursing home physical abuse in the past year, and 40% had engaged in mental or psychological abuse in the past year. 81% of those interviewed had witnessed at least one instance of psychological abuse in the past year. A 1997, Time Magazine article projected that as many as 35,000 Americans suffer death or unnecessary pain in nursing homes each year. These staggering statistics demonstrate that nursing home neglect is a serious problem in this country. Where can people turn for help? If the suspected abuse is immediate and life threatening, call 911 immediately. If the danger is not immediate, most states have adult protective service organizations which regularly receive such reports. Many people who report or experience elder abuse also want to pursue a civil legal action for monetary damages against the nursing home. However, several considerations should be taken into account before instituting such an action. Documentation and/or verification of the abuse by a state agency will go a long way in helping provide the proof required to prevail in a lawsuit. Testimony from independent witnesses is also important to establish. Jurors will be more likely to believe witnesses who do not stand to gain financially if a verdict is rendered for the victim or his family. However, this type of proof is not easy to obtain since most abusing health care providers do not openly abuse residents in front of witnesses. Another factor to consider is the severity of the injuries. Does the victim now suffer from a permanent physical disability as a result of the abuse? If the abuse is mental, does the victim require extensive therapy to address the issues raised by the abuse? Finally, the financial stability of the offending nursing home may also be a consideration. Many nursing homes have gone bankrupt and have no insurance to respond to a judgment for damages. In such instances, a civil legal remedy may not be worth pursing. If you suspect abuse of a friend or relative in a nursing home and you are considering a lawsuit, you should contact an experienced lawyer who handles these types of cases. These cases are too difficult and expensive to allow representation an attorney with little or no experience with these claims. When should I consider a claim for a work accident? (go to top of document) Any time you are injured on the job, you should consider making a workers’ compensation claim to cover the medical bills, out-of-pocket expenses and, if you are unable to return to work for more than 3 days, for indemnity benefits. Whether you should hire a lawyer is another question. On minor injuries that resolve after a few days, a lawyer may not be able to help you obtain more benefits than you can on your own. However, for injuries (especially back injuries) that involve your whole body, you should consult with an experienced workers compensation attorney. When should I consider a claim for wrongful death? (go to top of document) Colorado law provides that the surviving spouse is the only one that may bring a wrongful death claim within the first year following death, unless he or she waives that right in writing. After that, legal heirs may bring the claim. Whether the claim “should” be brought depends on the wrongfulness of the death. Death caused by the negligence, recklessness, carelessness or fault of another may be actionable. However, as indicated above, the loss of a family member typically causes great pain and turmoil as well as unimaginable loss within a family. Bringing a claim requires the family to deal with the loss over and over again throughout the litigation. Sometimes this can be painfully difficult and should be considered before bringing any claim. On the other hand, since the loss is so great, there should be justice. While no amount of money can bring back the dead, it can ease the burden of losing the bread winner in a family, can pay for children’s education, can pay for burial and funeral expenses, and can pay for counseling to the grieving family. Money is the only kind of justice the law allows. It is strongly advised that you speak with an attorney that is not only experienced in wrongful death law, but understands the feelings of losing a loved one and can explain to you the pros and cons of bringing this type of claim. (go to top of document) |
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