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How much Financial Compensation Can I get For My Injuries?
Clients naturally want to know how much their case is worth. On websites in which people can ask lawyers for advice a very common inquiry is a description of injuries and a request that a dollar value be put on the case.
The first issue is what are your injuries worth if liability is undisputed. For example, Client A is injured in a motor vehicle collision, is a blameless passenger, and there is plenty of insurance. Client B has identical injuries, but fell at a casino. Let's say in each case the damages would be worth $100,000. (The evaluation can never be this precise, but I use this figure to make a point.) Client A gets a $100,000 settlement with a good lawyer. Client B might or might not get a $100,000 judgment but will never get a $100,000 settlement because the casino will either deny liability or will argue that Client B must have been at least partly at fault because thousands of other people went by that area without falling. Here are three main factors that go into evaluating a case:
What are your chances of winning the case if it were to go to jury trial? Except in the case of being hurt by a defective product (and a few other uncommon exceptions) the injured party has to show that the defendant was careless (negligent) and that this carelessness (negligence) caused the injury. (Defective products are discussed in a separate section.) Often, the person or company being sued will claim that the victim herself was careless. For example, there is a collision between two cars and each driver claims the other driver was at fault. Or the plaintiff trips over a crack in walkway and the company being sued claims the plaintiff should have been watching where he was walking instead of talking on his cell phone.
In a situation where it is possible that the jury could find both the plaintiff (the person suing for being hurt) and the defendant negligent, Nevada law says that if the plaintiff is more negligent than the defendant, the plaintiff is out of luck. The jury will typically be asked by the judge to apportion negligence between the plaintiff and defendant. If the jury says the plaintiff is more than 50% at fault the defense wins. If the jury says that plaintiff was partly at fault but no more than half at fault the plaintiff gets her damages minus the percentage that the jury says she is at fault. For example, if the plaintiff and defendant are equally at fault, the plaintiff gets half the damages she would be entitled to if it had all been the defendant's fault. If the plaintiff is one third at fault and the defendant two thirds at fault the plaintiff gets two thirds of the damages she would get if the defendant had been entirely at fault.
This Nevada law, called comparative fault, is different than the law in California. In California even if the plaintiff is more than half at fault the plaintiff can have her damages reduced by the percent she is judged by the jury to be at fault. For example, in California if the plaintiff were 90% at fault and the defendant 10% at fault, the defendant would have to pay the plaintiff 10% of the damages she would get if the defendant were entirely at fault.
Thus, a monetary evaluation of an injury case first involves estimating the chance of winning and making allowance for any possible reduction of the award due to the plaintiff having contributed to her own accident.
As a practical matter there must be some chance of collecting money from the person or company being sued. Let us suppose that Tom is badly injured in a car wreck through no fault of his own and that Tom's case would ordinarily be worth $200,000. Let us also suppose that Tom does not have uninsured/underinsured motorist coverage (discussed in a separate section). Finally, let us suppose that the driver who hit Tom was driving a late model Cadillac and has $100,000 in coverage for this collision. In this situation typically the insurance company for the Cadillac driver will offer his attorney the $100,000 policy limits early in the case. If Tom refuses this offer, typically the Cadillac driver will refuse to add any of his own money to the settlement offer.
Now Tom and his attorney must decide whether to take the bird in the hand or spend a lot of money going to trial to get a big judgment. If they get the big judgment, the Cadillac's driver's insurance company will still only offer the $100,000 and Tom and his attorney will have to try and collect the rest form the Cadillac driver. Typically, in a case like this Tom's attorney, upon getting an early offer of the $100,000 policy limits from the Cadillac driver's insurance company, will hire a private detective to find out what he can about the Cadillac driver's assets. This information will then be used by Tom and his attorney to decide if they should settle for the policy limits or take the case to trial and try to get a larger judgment and then to collect upon it.
Or, worse, maybe the driver who hit Tom only has $15,000 in liability insurance and basically no assets. Now the case may only be worth $15,000.
There are specific rules for placing a monetary value on damages. Here are some of the rules:
- Causation must be Proved:
The plaintiff has to prove that the defendant caused his injury. After a car collision the plaintiff might have medical tests to show that he now has a herniated (extruding) spinal disc which is causing him great back pain. However, the medical tests that show the spinal injury don't tell when the injury happened. If the plaintiff has any prior history of back pain there will be the issue of whether the car collision caused the injury. Since there may be no medical tests showing the condition of the Plaintiff's spine before the collision, causation becomes a fact issue. Typically, plaintiff's counsel hires a doctor to offer an opinion that the collision caused the injury and the defense seeks to hire a doctor who will testify to the opposite. On the other hand, if the plaintiff is taken to the hospital by ambulance and is diagnosed with seven fractured ribs at the ER, chances are very good that the defense will immediately concede that the collision caused the rib fractures. Or, if Mary submits to cosmetic surgery and dies on the operating table most people might think this is "an open and shut case" against her doctor(s). And most attorneys who do medical malpractice would be happy to talk to Mary's family. But, it does occasionally happen that a patient dies during elective surgery because of some unusual circumstance other than medical negligence. The attorney hired by Mary's family will have to prove through expert review of the records (and possibly an autopsy) why medical negligence caused her death.
Under Nevada law, causation is proved if the plaintiff shows that it is more probable than not that the defendant's negligent conduct caused the injury. Strictly speaking this means that if the jury thinks there is a 51% chance that the defendant's action caused the injury and a 49% chance that the defendant's action had nothing to do with the injury, then the jury should decide for the plaintiff and give the plaintiff a full measure of damages. My trial experience tells me that juries usually don't like to take money from one person and give it to another unless they are pretty sure the defendant injured the plaintiff. The jury is likely to be influenced in its causation determination by how much they like or dislike the parties. In theory a case should not be decided by the jurors' prejudices and in theory the process of jury selection is supposed to select only totally unbiased jurors. In real life prospective jurors often say what they think they should say not what they feel when they are being questioned in a courtroom. it takes skill and experience to ask jurors questions that you hope will get them to review their true feelings so that you can disqualify jurors you feel are starting off biased against your client or your case.
- Proof of Lost Wages or Income:
Proof of lost wages requires proof that the accident caused an injury that prevented work as well as proof of actual lost wage or income. People who have been receiving their pay "under the table" and not paying income taxes on their wages or income usually cannot make a decent lost wage claim. The defense will demand authorizations to see prior income tax returns and if the plaintiff refuses the plaintiff will not be allowed to make a lost wage/income claim.
Time spent in medical treatment may or may not equal lost wages. If Bill works 9-5, M-F and took 72 hours of sick leave to get medical treatment that was only offered during those business hours, that will count as lost wages as long as the medical treatment was reasonable and necessary for his injury. But, if Dr. Jones, a dentist, has evening and weekend office hours and spends 72 hours getting medical treatments the defense will ask whether he could have scheduled his patients around his medical appointments so as to avoid an income loss.
Of course, being totally, even if only temporarily, disabled from work will support a wage/income loss claim.
- Medical Expenses:
Medical bills are a source of great confusion and contention. Many clients think there is some sort of settlement standard of "three times medicals." This is a very old rule of thumb based on the recovery being split three ways between client, doctor and lawyer. However, we now live in a world in which many medical bills are greatly inflated and chopped down by private health insurance (e.g., Health Plan of Nevada, Cigna etc.) or public health insurance such as Medicare or Medicaid. But some people don't have health insurance and have to pay--or to have deducted from their injury settlements--the full amounts of their medical bills. Health care providers have become very aggressive and creative in boosting charges and adding new one, for example, a $7,000 "trauma team activation charge" sometimes when an ambulance brings a person to the ER. A jury might reasonably be less impressed with a $7,000 trauma team activation charge when it turns out the plaintiff wasn't badly hurt than with a $7,000 bill from a surgeon to repair multiple bone fractures. And one plaintiff might actually have to pay the $7,000 bill while another might get a huge discount through insurance. For all of these reasons, some standard value based on the total medical bills doesn't make sense. If the case actually goes to trial under Nevada law the plaintiff will present his actual medical bills to the jury but will have to provide medical testimony that the bills were reasonable and customary and for services medically necessary.
(On August 18, 2011, the California Supreme Court in the case of Howell v. Hamilton Meats, issued a landmark decision in which it said that the amount of medical bills reported to the jury could not be higher than the amount paid by the insurance company plus the patient's co-pay. In other words, what was paid and accepted as full payment is the measure of medical expense, not the actual bill. The California Supreme Court opinion has no legal effect in Nevada cases, but we expect Nevada defense attorneys to urge a similar opinion from the Nevada Supreme Court although that is off in the future.)
This is why it doesn't make a lot of sense to say that a case should settle for "three times medicals" or any other multiple of the total medical bills.
Agreeing to give your doctor a lien on your injury case so that the doctor will treat you is a bad idea if you could get those bills paid by insurance. This is because a doctor who takes a lien on a case will usually not give any discount on his bill. However, if you don't have insurance this may be the only way you can get treated.
Big Corporate Defendant
Let's say the Defendant is Walmart in a slip and fall case or Coca Cola in a truck/car accident case. Some people will assume that the case is worth lots of money automatically because the case is against a giant corporation. Other people may assume that the giant corporation will use its money to fight the claim harder. My experience is that Walmart is more likely to have video surveillance of the slip and fall case than a Mom and Pop store. Walmart will have trained its store people in advance what to do about a slip and fall. Walmart's procedures will instruct its people to preserve evidence and report truthfully. (Walmart cannot take the risk of instructing its people to lie or conceal evidence harmful to Walmart. A particular Walmart manager might take it upon themself to be dishonest, but Walmart has too much to lose by encouraging that sort of dishonesty.) So I think Walmart's size cuts both ways: If their video surveillance shows that they caused the slip and fall, I think they will pay up. On the other hand, if their video or investigation convinces them they are not at fault, they can afford to spend $30,000 defending a case they believe has no merit.
Here's what I mean when I say that Walmart can't afford to lie in connection with personal injury cases. If it could be proved in a trial that a Walmart manager told an employee to lie in a court proceeding over a slip and fall case, that might be worth millions of dollars to the Plaintiff in a punitive damage award. And anyone who watches the news knows that many Americans love to gossip and don't keep secrets well. This is not to say big company executives are any more honest or dishonest than the average person. It is just that a store the size of Walmart has to have training procedures for investigating slip and falls and other store injuries and Walmart knows that sooner or later such training procedures will become public. And, of course, just because Walmart concludes there is no liability under a certain set of facts does not mean a jury would come to the same conclusion.
Little Property Damage Rear-Enders
Many rear end collisions involve little property damage and are presumably low impact. (You don't tend to see head-on collisions at slow speed or T-bone collisions at slow speed.) In such a case either the Plaintiff's attorney or the insurance company can produce experts to give the desired testimony that either the Plaintiff should not have been hurt or that the small amount of property damage is no indication of the injury actually suffered by the Plaintiff. But jurors may be skeptical when they learn that these experts are being thousands of dollars and may think, "Nice work if you can get it." I think it is hard to sell jurors on a big claim for personal injury damages with little property damage to the car.
Multiple Claimant Car Accidents
If a car gets T-boned and rolled over, no one is surprised that all passengers are transported to the hospital and badly hurt. But if a car gets hit relatively softly from behind, it might be more surprising if all three occupants need extensive care than, say, if only one of three occupants felt hurt enough to seek care.
Prior Claims History and Pre-Existing Injury
A large number of prior personal injury claims can make a claim less valuable as it can make the plaintiff look like a professional claimant. On the other hand, a prior bad injury can make it more credible that a moderate impact car accident really hurt the Plaintiff. It will strike most people as logical that an 80 year old man might suffer more back pain in a rear end accident than a 20 year old man. But, if the 20 year old Plaintiff has a prior history of back surgeries, it will strike most people as logical that this person will have suffered more back pain in a car accident than the guy sitting next to him who has no history of back injury.
Payment of Medical Bills
What the client cares about and what their attorney cares about (if the attorney cares about the client) is what will the client net out of a settlement after deduction for attorney fees and costs and payment of medical bills. Sometimes a case is "poisoned" by too many medical bills. Suppose a person with no medical insurance is the victim of a car accident and needs to be hospitalized and leaves the hospital with a $50,000 bill. If there is only $15,000 in insurance and no chance of suing and collecting from the at fault driver for an excess amount, there is no possibility of legally and ethically putting money in the client's pocket.
Medical bills can also "poison" a smaller case. Suppose a client has no medical insurance, no med pay insurance, and is involved in a low impact car accident. Suppose the person without seeking the advice of a lawyer goes to a local hospital emergency room. The person may leave after a two hour visit with a $3500 hospital bill, a $500 bill form the emergency room doctor and a $150 bill from the radiologist who reads their x-rays. (Actually, the bills come later in the mail, but they do ultimately arrive in the mail.) Now they go to a chiropractor for follow treatment. Now if there was just a chiropractor bill, the chiropractor might be happy to take a third of the settlement. But in this case there are four medical creditors or lien holders. The hospital may be very stubborn. It may be hard to put together a settlement that produces a happy Plaintiff.
How Long Will a Settlement Take?
As a general rule, bigger claims require more people at the insurance company or at the self-insured big corporation to sign off on a settlement offer. If you work for an insurance company, it is easier for you to be cautious (do nothing) about a million dollar claim, than to stick your neck out and recommend settling for a million bucks. If five people at the insurance company have to sign off on the million dollar claim, you don't want to be the first. And, it takes five people a long time to do anything.
One circumstance that can force an insurance company to move quicker than usual is if the Plaintiff offers to settle the claim for policy limits and the insurance company is concerned that a jury might award more than policy limits if the case goes to trial. IF the insurance company in hindsight had a chance to settle for or within policy limits AND the insurance company had knowledge of facts making it plausible that the claim might go for more than policy limits if tried, THEN the insurance company may be liable to its insured if the case goes to trial and the Plaintiff gets more than policy limits. This is a risk insurance companies really hate to take. If the policy limit is $100,000 in an auto case and the insurance company refuses to settle for a $100,000 limit demand and then after a jury trial the Plaintiff is awarded $120,000 the people who handled the file for the insurance company may look very bad. On the other hand, if the policy limit is $100,000 is the insurance company only offers $20,000 and there is trial and the insurance company pays $40,000 on legal fees and costs and the jury comes back with $20,000, the people who handled the claim for the insurance company can even look like heroes who held their ground and taught the local legal community that they can't be pushed around.
For example, if I have an auto claim with a probable value of $75,000-$125,000, a settlement for $100,000 will be quicker if the policy limit is $100,000 than if it is $500,000. Ideally, in this case if the policy limit was $100,000, we could get those limits and then still have a claim against the client's own insurance company under underinsured motorist coverage.
As lawyers we can't control what the policy limits are. Sometimes we can speed up settlements by constantly bombarding insurance companies in large cases with medical records and updates, but in most really big cases it is usually necessary to file suit to eventually attract the attention of the few people in the insurance company who can make decisions on large payouts.
And, of course, in some cases, we simply have to try a case because of a difference in opinion as to the value of the case.