Personal Injury Damages
January 30, 2012
What sort of damages am I entitled to recover in a personal injury case? Texas law provides for various categories of damages that one can recover in a personal injury case. However, every case is determined on its own merits. No one case is the same as the other. While one jury in the Dallas or Fort Worth area might value a personal injury case one way, a jury in other parts of Texas may value a similar case totally different.
Medical Expenses. A person who suffers a personal injury and seeks medical treatment is entitled to recover the amount of the medical expenses incurred. This includes, ambulance bills, emergency room and hospital expenses, as well as any follow up treatment, surgeries, or physical therapy. However, medical expenses are limited to the amounts that were actually paid or incurred by the injured party or their health insurance company. Recovery is not allowed for any amounts that have been written off or discounted by the health insurance company.
Lost Wages. If you are injured and lose work due to pain, incapacity, or to attend doctor’s appointments, then you would be entitled to reimbursement for the wages attributed to the time missed from work. If you get paid by the hour, then your recovery would be the total number of hours missed multiplied by your hourly wage rate. If you are a salaried employee, then your salary would be broken down into a per diem rate and your lost wages would be calculated accordingly. Lost wages are, however, subject to being discounted for incomes taxes. Even though personal injury settlements are not taxable income, Texas law states that lost wages that are recovered in a personal injury case are limited to the net wages after federal income tax liability.
Physical Pain and Mental Anguish. Texas law also provides that a person who is physically injured is entitled to a monetary award for physical pain and mental anguish. Where the damages previously discussed can be easily calculated by reference to billing statements or simple math, pain and suffering is an amount awarded that best reflects the physical pain someone endured as a result of the injury. The jury (or judge in a bench trial) puts a dollar amount on the plaintiff’s pain and suffering based upon the evidence on the injury. Some factors that may influence the amount awarded include the seriousness of the injury, the duration of the injury, the effect the injury had on the daily routine of the injured person, and the level of depression and embarrassment endured.
Physical Disfigurement and Impairment. Some injuries can have long lasting and even permanent limitations. Examples include scarring, burns, amputations, brain injuries, and paralysis. These types of injuries tend to make for much higher awards since they involve more serious injuries and because the injured party has probably experience a life-altering event. Likewise, the injured party would have to plan for future life-care such as in-home nursing, maid services, transportation, etc.
Unless the parties are able to settle their dispute without the need for a trial, then a jury (or judge in a bench trial) would ultimately decide what amount of damages an injured person is entitled to recover. Although most cases are settled without going to trial, settlement are generally reached between the client and the insurance company based upon historical understandings of the tendencies of jury awards in similar circumstances. That is why it is very important to retain an experienced personal injury trial lawyer who can structure your case in the best possible way to optimize your recovery.
Uninsured and Under-Insured Motorist Coverage
January 23, 2012
In Texas, every motor vehicle is required to carry a minimum amount of liability insurance in the event of an accident causing an injury, death or property damage. But the reality is that not everybody carries liability insurance. Likewise, there is something you can do to protect yourself in the event you are involved in an accident with a vehicle that is uninsured. You can purchase uninsured motorist (“UM”) and under-insured motorist (“UIM”) coverage.
Under Texas law, every automobile liability policy must provide for UM/UIM coverage unless it is expressly rejected in writing. Therefore, even if your coverage summary does not expressly provide for UM/UIM coverage, you are presumed to have the state minimum UM/UIM coverage unless the insurance company has obtained your signed rejection of that coverage. In all my years of practice as a car accident lawyer, however, I have only had one case where the insurance company could not produce my client’s signed UM/UIM rejection form. The end result was that the insurance company had to provide UM/UIM for my client’s accident even though she never paid for the coverage.
Uninsured motorist coverage (“UM”) works just like it sounds. If you are in an accident with a vehicle that is uninsured, then your UM coverage will step into the shoes of the other driver’s liability insurance. However, in order to be eligible for UM coverage , the accident would have to be determined to be the fault of the uninsured motorist. If the accident is found to be your fault, then UM does not apply. You would then have to look to other coverages like collision or personal injury protection.
Once the other driver is determined to be at fault and uninsured, then your adjuster will evaluate your claim based upon what you would be legally entitled to recover from the uninsured driver. The adjuster will estimate the damages to your car and either pay for the repairs or will pay for the value of the vehicle if it is determined to be a total loss. If there are any personal injuries, then the adjuster will investigate and evaluate that part of your claim separately.
Under-insured motorist coverage (“UIM”) works a little different than UM coverage. With UIM coverage, the other vehicle does, in fact, carry liability insurance. However, the other driver’s insurance coverage is not enough to fully compensate you for your injury or damages. For example, if your car is totaled in an accident and is worth more than the coverage limits of the at-fault vehicle, then your UIM coverage will step in and pay the difference up to your coverage limits. The same is true for your personal injuries. If your injury claim is worth more than the coverage provided by the at-fault vehicle, then your UIM coverage will cover the short-fall up to the limits of your UIM coverage.
If you have been involved in an accident with an uninsured or under-insured vehicle, call or contact me for more information and a free consultation.
Communicating with the Client
January 18, 2012
A client, or potential client, must be able to consult directly with the attorney. If you are the victim of an accident or other personal injury, you are probably confused by this unforeseen event. At this critical point, what clients need is valuable advice and guidance from a lawyer. I have been practicing personal injury litigation in the Dallas and Fort Worth area since 1994. During that time I have concluded that too many personal injury lawyers tend to be out of touch with their clients.
In my office, I understand and appreciate that it is extremely difficult for a client to hand off a serious legal matter to an attorney only to be left in the dark about the status or progress of their case. The client needs (and deserves) to know that the lawyer is always moving forward with the case and not letting things sit idle. It is true that legal matters do take time to resolve. But the last thing a client needs is any extra delay because the attorney is not being diligent in pursuit of the client’s case.
Of course, at my office, I do what I can to make sure that clients (and potential clients) are able to reach me when they have any questions or concerns about their case. First, my telephone number rings directly in my office. Likewise, my calls are not intercepted or filtered through a secretary or paralegal. Second, if I am not in the office, my telephone calls are forwarded to my cell phone. Third, I commonly communicate through email. Therefore, I always make my direct email address available to anyone who needs to reach me. And last, in the event you do reach my voice-mail, I make it a point to return the call the same day or evening.
If you are the victim of a wrongful death or serious personal injury, contact me for a free consultation and personal case review.
What is a Letter of Protection?
January 12, 2012
Many times, victims of an accidental injury, such as a car accident, do not have health insurance or the funds to pay a doctor for treatment of their injuries. That issue alone will prompt the injured person to contact a lawyer to represent them in their case. But that still doesn’t necessarily resolve the issue of getting the client under the care of a doctor. Under these circumstances, an attorney may choose to issue a “letter of protection,” also referred to as an “LOP.”
An LOP basically provides that the treating doctor will get paid out of any recovery from the client’s case so long as the doctor agrees not to seek collection of the medical bill until the case is concluded. Once the case is concluded, then the doctor will get paid from the proceeds of the settlement. But what if there is no settlement? Technically speaking, the client still owes the doctor. But because the vast majority of cases settle out of court, this is not necessarily a major initial concern.
Your lawyer might also insist on certain conditions before issuing an LOP to a doctor. For instance, the lawyer may insist that the doctor provide all final treatment and billing records free of any copying charges, or that the doctor will not bill any other insurance while the LOP is in effect. Sometimes, an LOP might even provide that the doctor will agree to give testimony in a deposition or at trial free of any expert witness fees.
There are, however, some other practical problems with LOPs. First, if your case goes to trial, the issue of the LOP may come out. If it does, then the jury may think that the doctor and lawyer are working together to bolster the client’s case. Likewise, the jury might think that the medical treatment was incurred for the sole purpose of building up an injury case.
Second, insurance adjusters usually look negatively on LOP doctors. The adjusters tend to believe that LOP doctors inflate their bills in order to help the lawyer get higher settlements. On the contrary, what usually ends up happening is that the insurance adjusters will make even lower settlement offers knowing that the doctor has already figured in a reduction of their outstanding bill.
Third, if there is a settlement, your lawyer had better be confident that the doctor will negotiate the outstanding balance in order to help conclude a settlement. If you reach a settlement and the doctor plays hardball, then you might have a stalemate in getting the settlement finalized.
Whether or not your lawyer should issue an LOP in your case depends on various circumstances. Once you meet and consult with your lawyer, a decision can be made at that time whether or not an LOP is the best option for you.
“I’m Not the Suing Type.”
January 8, 2012
I cannot tell you how many times I have had personal injury clients call me about taking their case, but they feel conflicted about calling a lawyer because they are “not the suing type.” For whatever reason, people have a sense of guilt about the prospect of suing another person. My immediate response is that you should not feel guilty about pursuing your rights and making the guilty party be held responsible for your injury . Let’s assume you are injured in a car accident that was the other driver’s fault. Now you have hospital expenses, doctor bills, and lost wages. Shouldn’t the negligent driver be held liable to compensate you for your expenses and injuries? But the reality is that, unless you are willing to pursue the negligent driver, they normally will not show up at your door and voluntarily offer to compensate you. For the most part, your claim would be dealt with through the responsible driver’s insurance company and not the driver personally. However, if the insurance company is not willing to fairly compensate you, then you will have to sue the other driver personally. If you do not pursue your rights because you are not the “suing type,” then the only one that benefits from that philosophy is the other driver and the insurance company.
Unfortunately there are people who do abuse the legal system. And even more unfortunate is the fact that there are lawyers who are willing to take those cases. When I come across cases that I believe are being inflated or exaggerated, I politely tell the caller that I am not interested in the case. But for every person with an illegitimate case, there are 20 others cases that are legitimate and deserve to be pursued. It’s those small number of illegitimate claims that are highlighted by the insurance industry in their “tort reform” campaign to discourage anyone and everyone, including legitimate claimants, from pursuing their rights.
The stigma that has attached to our judicial system because of illegitimate claims should not discourage law abiding citizens from using our judicial system as it was intended to be used. In a truly democratic system of government, courts are created for a purpose. They make sure every citizen’s rights are preserved and protected by providing a process in which disputes are fairly resolved. If responsible citizens do not engage our court system to resolve their disputes, then there would be no incentive for people to take responsibility for their unlawful actions. And when that happens, the rest of society pays for that person’s short-fall.