General Information about Personal Injury Claims
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.
** Most responses are directly related to vehicle collisions, but largely apply to all personal injury claims.
Georgia law sets a limit (a “Statute of Limitations“) on how long you have to file a lawsuit. In personal injury actions, the normal time frame is two years from the day of the incident. There are numerous exceptions to these timeframes, such as lawsuits over damage to reputation.
When there’s an injury to a minor, the minor normally has two years from the date they turn 18-years-old to file a lawsuit. Some injuries have a shorter time frame in which to file suit. (The typical statute of limitations for a property damage claim is four years).
If you fail to file a lawsuit within the applicable statute of limitations, your lawsuit will be “thrown out of court” by the court, and you will not later be able to file a lawsuit.
If you have a claim against a city or county or the state or federal government, there are notification rules which must be followed prior to filing a lawsuit.
If the government agencies are not timely notified before you file a lawsuit, and by the proper/technical methods required, your lawsuit will be prohibited (“kicked out of court”), and you will never be able to pursue the claim/lawsuit. Notification requirements include providing specific information about the claim, and how and to whom the notification is provided.
The timeframe allowed to notify the governmental body is, in some instances, only 6 months or less from the incident in question. Therefore, if you have a claim against any governmental agency, including a city, county, state or the federal government, you should contact an attorney as soon as possible.
Do not rely upon the above time frames. The above time frames are for general information. Again, there are exceptions.
An attorney should be consulted concerning the applicable statute of limitations as soon as possible after an incident or first knowledge of an injury, and in no case greater than six months after an incident-and within a month if you may have a claim against a government or government agency.
Many attorneys will not accept representation in a personal injury case if the injured party first consults with the attorney near the expiration of the statute of limitations. From my perspective, I do not want to file a lawsuit unless I have had a proper amount of time to evaluate a claim, and to substantiate the claim to the insurance company, and negotiate.
The fear of being unable to properly serve the defendant(s) with the lawsuit is significant. (Only in very specific situations can the insurance company be named as a defendant). If a defendant cannot be properly served very soon after a lawsuit is filed and if the statute of limitations has expired, without extreme diligence and effort on behalf of the attorney to serve the defendant(s), the case may be dismissed by the court.
Many defendants are very hard to locate, and it may require a personal investigator several weeks or longer, if at all, to locate the defendant. Corporate defendants are easier to locate and serve, however, many factors may lead to the serving of the wrong defendant, due to mergers, etc.
For the above reasons, if you present your case to an attorney at the last minute, it likely will be very difficult for you to obtain an attorney.
I have no set rules on the time frame for accepting a case. Much depends upon quickly determining who the defendants are and where they are, as well as the general fact situation of a claim. As an attorney, I have a legal duty not to file a frivolous lawsuit, and, therefore, I must have reasonable time to investigate a claim.
It is important that you get medical treatment as soon as possible after the injury. Any delay will be used against you by the insurance company. In the event of significant delay, the insurance company will almost always contend that your injuries were caused by some other incident.
Do not retain an attorney before your first medical visit! An insurance company or its attorneys will use this against you. They will contend that obtaining money was more important than getting treatment. (You may consult with an attorney, but do not retain the attorney before your first medical visit. In a lawsuit, you may be asked when you first hired an attorney, but rarely when you first spoke with an attorney).
It can be detrimental to your claim for an attorney to recommend a particular medical provider. Doing so may cause jurors to believe medical treatment was only undertaken for claim purposes. (I am well aware that many injured clients are not aware of where to get proper treatment, and may request general guidance, as to the type of doctor to see, from their attorney).
No one should follow an attorney’s treatment recommendations over that of a physician that one trusts. The following are general considerations:
For injuries that do not seem overly serious, it is reasonable first to be evaluated by a general practitioner (family doctor) or internist.
If you were injured, but did not go to the emergency room following your accident, and you cannot schedule an appointment with your regular doctor the following day, I suggest that you present to an emergency room or a minor emergency clinic. This is very important, because the sooner there is evidence of injury, the more likely the injury can be attributed to the accident.
For many neck and back problems, once you have seen your regular doctor, you will often be referred by the doctor to a physical therapist (which requires a prescription). If your problems continue or do not improve significantly, I suggest that you seek a referral to a specialist.
Even if a referral is not required from your doctor (which is now more likely the case), it is a good idea to have them suggest who you should see. Some general practitioners and internists will refer patients to specialists very quickly. Others, I have found, particularly in small towns, will continue to treat the patient.
I am not a doctor, and I have no medical training, and I offer the following only for general consideration:
If you are suffering from severe constant headaches, dizziness or balance problems, or you are having shooting pain, tingling, or numbness in your arms, legs, hands, or feet, you should be more aggressive in requesting a referral to a specialist, as politely as possible.
If your doctor has not done so, you should also, respectfully, ask why an MRI should not be ordered.
Most likely, the referral will be to an orthopedist (a medical doctor specializing in bone and joint disorders and general muscular disorders). While most orthopedists perform surgery, they also diagnose injuries and treat most injuries conservatively at the outset.
If you’re having tingling or numbness in your legs, arms, or hands, or having headaches, you may be referred to a neurologist or neurosurgeon. Any of these doctors may also refer you to physical therapy.
Often, if neck or back pain has not been reduced significantly after conservative treatment, a doctor may recommend “trigger point” injections, which includes injecting steroids and/or pain medication into the spine.
I have found, understandably, that many of my clients are suspicious or afraid of having injections. Many clients seem to benefit, and many clients do not. (Like any medical recommendation, be aware that the failure to follow a doctor’s advice can be used against you by the insurance company or its attorneys).
If financially possible, you should avoid treatment by chiropractors. Chiropractic treatment normally will significantly damage your case.
Because of their practice of TV advertising for accident victims, and their unconventional treatment, many jurors will be prejudiced against anyone who gets chiropractic treatment. (The same is true of TV advertising personal injury attorneys!). Insurance companies almost always discount chiropractic treatment, and juries regularly do also.
Insurance defense attorneys will often argue to the jury that chiropractic treatment made the condition worse. Moreover, they may successfully convince a jury that much of the chiropractic treatment was unnecessary.
It is my opinion that there are good chiropractors who benefit patients. My advice is based on the reality of insurance company and juror biases. A physical therapist can provide you with proper manual and other non-drug therapies.
No attorney should advise a client to have surgery or any treatment merely because it will increase the value of a claim. Unfortunately, some do. If a doctor recommends surgery, I strongly recommend obtaining a second opinion.
If surgery is clearly recommended by a competent physician or surgeon as the only reasonable way to correct a medical condition, the failure to have surgery certainly will be used against you by the insurance company. They will argue that you had a duty to mitigate your damages, including future pain and suffering.
While having surgery will generally significantly increase the value of your claim, the mere recommendation of surgery will often have little effect on an insurer’s evaluation of a claim. It is my experience that insurers and jurors regularly presume that you will never have surgery if you have not done so by the time of trial.
Often, if orthopedists, neurologists, neurosurgeons, and physical rehabilitation physicians cannot find the source of your pain, you may be referred to a pain management physician.
Pain management treatment is regularly treated suspiciously by insurance companies. It is my belief that doctors often refer patients to pain management physicians without thoroughly assessing all possible causes of pain. Nonetheless, pain management should certainly be an option if no other option is offered.
Sometimes it is simply necessary to change doctors. Considerable thought should occur before doing so. The contention may be made that you are merely shopping for a better medical opinion. It is also more expensive to establish the details of your overall treatment when there are numerous medical providers.
At the outset, be aware that the other driver’s insurance company has no legal obligation to pay your bills as they accrue, and they will rarely do so. (In very rare circumstances, they might pay for a diagnostic procedure which they hope and believe will show a lack of injury).
If the other driver’s insurance company agrees to pay your medical bills, they will likely require you to sign a release waiving your rights to any further recovery.
The other driver’s insurance company does not want you to get any medical treatment, as medical treatment is virtually essential to a successful claim. Delayed medical treatment, and gaps in medical treatment, hinder a claim. They want your financial circumstances to lead to delayed treatment.
Regrettably, for the vast majority of medical providers, other than emergency room and ambulance service, you’ll need to either have cash or private or government provided health insurance to obtain medical treatment. If you are on the job for an employer – generally not going to or coming from work – your medical expenses should be fully paid by worker’s compensation benefits.
If you have “medical payments” coverage (commonly known as “med pay“) on your personal vehicle insurance policy or if the coverage is available on a non-owned vehicle in which you are a passenger or driver, that coverage can be used to pay for medical expenses.
Under most policies, the medical payments coverage available will be between $1000.00 and $10,000.00. Medical payments coverage should pay 100% of your medical bills up to the policy limits. (An experienced personal injury attorney will be able to determine if other medical payments coverage is applicable).
To receive the benefits of “med pay” coverage, you will need to contact the insurance company and ask for a “medical payments application form.” Occasionally, the insurance company will ask you: “Why do you want us to pay your medical expenses; you should submit your bills to the other driver’s insurer.” If you hear this, be aware that your agent or adjuster is being dishonest or you’re speaking to someone who is ignorant of insurance coverage issues.
“Med pay” coverage is a coverage you pay for, and the fault of you or the other driver is not relevant. Georgia law prohibits your insurer from raising your premium or canceling you for filing a med pay claim.
Unfortunately, many, if not most, medical providers will not accept “med pay” coverage at the start of treatment. Their fear is that the coverage amount might be exhausted by another medical provider, and they will not get paid. (“Med pay” coverage can certainly be used to pay for medical expenses previously incurred.)
If you have personal health insurance or government provided health insurance, you should present that insurance up-front to a medical provider. You may find that your health insurance provider initially denies coverage. In this case, you may need to provide documentation to the insurer that you do not have “med pay” coverage on your auto policy.
In the event you have private health insurance and medical payments coverage, the medical payments coverage must be exhausted before private health insurance takes over. Do not accept the statement from anyone that a health insurer is not responsible for vehicle accident injuries.
If you don’t have health insurance, some medical providers will accept an “attorney’s lien” to treat you without an up-front payment. Under such a lien, you are authorizing your attorney to pay any outstanding medical balance from any settlement or judgment proceeds. Normally, the medical provider is willing to negotiate the amount of the outstanding balance at the end of the case. I regularly negotiate for clients on this matter.
Unfortunately, only chiropractors regularly treat patients under an attorney’s lien. (For reasons discussed on this Website, significant treatment by a chiropractor will very likely damage the value of your claim).
Soon after a collision or accident the opposing insurance company’s adjuster will often ask you to give a recorded statement. I strongly suggest that you tell them that you must speak with a personal injury attorney first.
There are many pitfalls to giving a recorded statement soon after a collision. The extent of your injuries is likely not known; you may be in pain and on pain medications that cloud your judgment; and the adjuster may pressure you to downplay your injuries, etc. It is my experience that adjusters are much more aggressive without attorney participation.
If fault for the collision is in question by the insurance company, the insurance company will make their initial determination by reviewing the Accident Report and interviews with their insured and any eyewitnesses. Your initial statement will likely have no weight with them. The insurance company wants your statement, hopefully, to use it against you someday.
If I am representing you, and a recorded statement is requested, I will normally allow the statement. I will prepare you in advance for a recorded statement, and I will be with you during the recorded statement. (Most take place by conference call). At this point, with a proper presentation, you will make a good impression upon the insurance company, and your testimony will not hurt you later.
If you are involved in a collision, you should report the collision immediately to your insurance company. However, you should only provide them with a very short, non-recorded statement of how the collision occurred. You can tell them that you were injured, but do not provide any details other than, for example: “I was rear-ended while stopped and I hurt my back.” You should provide them, if requested, with a copy of the Accident Report.
You should be cautious with your own insurance company because, in the event that the other driver is uninsured or underinsured, you may have to pursue an uninsured or underinsured motorist benefits claim or lawsuit against your own company.
Just because the other driver presents an insurance card to you or to the investigating officer does not mean that they are insured. They may have failed to pay their premium. Moreover, if the driver refuses to cooperate with their insurance company, liability coverage could be denied, therefore making them an uninsured motorist. (See details about uninsured motorist coverage on this Website).
As with the opposing insurance company, simply tell your insurer that you must speak with an attorney before giving a recorded statement. You do have a duty to assist your insurance company in defending any claim that the opposing driver may have against you, which most likely includes giving a recorded statement to them. A recorded statement can be given after you have retained an attorney.
The short answer is ‘yes.” However, the short answer is rather meaningless. Insurance companies certainly do not wish to incur attorney’s fees or the expenses of preparing for trial, and of having to pay a large jury verdict. By the same token, injured clients must also assess the expenses of trial, the time value of money, and the risk of a poor verdict.
Before negotiation, insurance companies assess their future expenses and a likely jury verdict range for the particular injury in the county of the trial. If the demand presented by the injured client falls out of that range, they will often risk a trial.
While insurance companies do assess their future expenses, they are often willing to largely ignore expenses, and proceed to trial, if they believe that the injured party is dishonest or if there was minimal property damage to a vehicle(s). If the injured party has pre-existing medical conditions similar to the claimed injuries, they are more willing to take their chances with a jury.
Insurance companies realize that your claim is your only claim, whereas an insurance company may have 1000’s of claims. Out of ten trials for the same injury, they may be hit with one very large verdict, but they also expect to “win” two or three trials. Therefore, they are often willing to take more risks with a jury than an injured person is willing to take.
Insurers also know that many injured parties simply become so disgusted with the process, and time delay, that they will, sooner or later, give up and settle cheaply.
The duty of a personal injury attorney is to create reasonable fear in the insurance company, and to the opposing attorney, so that they do not want to take the case to trial.
At an initial consultation, clients often ask me: “What’s my case worth?” Only occasionally can I give a good opinion at the outset. (Certainly, an attorney should never, and cannot ethically, promise an outcome). A personal injury claim rarely can be thoroughly assessed until a client’s injuries have resolved or the client is satisfied with a medical opinion that maximum medical improvement has been reached.
All witnesses need to be interviewed, the law thoroughly researched, all lost income and medical expenses documented, and the jurisdiction of a future lawsuit determined. (A lawsuit must normally be filed in the county where the defendant lives, not where the accident occurred).
There can be significant differences in jury verdicts, for similar injuries, between counties in Georgia. In assessing the value of a claim, insurance companies assess the likely verdict in the county in which the lawsuit would have to be filed.
Factors in assessing the value of a personal injury claim include, naturally, the nature of the injury. In general, an injury that can be seen or detected by x-ray’s or other diagnostic procedures (fractures, herniated discs, burns, scars, etc.) has a higher claim value.
Complaints that are “subjective” (complaints of pain without medical proof) are harder to prove, and less likely to result in a favorable jury verdict.
It is extremely important that a client’s doctor believes the client’s physical complaints and attributes the complaints to the accident. A competent personal injury attorney knows how to present evidence to the doctor to enhance the possibility of a favorable opinion.
Pre-existing conditions generally lower the value of the claim. For example, assume a client had a minor back injury five years before a vehicle collision, with limited treatment. Although the vehicle collision resulted in a severe back injury, the insurance company, inevitably, will contend that the real problem is due to the prior minor back injury simply getting worse over time. This will often be a significant issue to deal with even in the absence of any medical records showing treatment for years before the accident.
The rebuttal to insurance companies’ arguments about pre-existing contentions seems solid. The argument will be made to a jury, for example, that a person who’s recovered from a fractured leg, and then had the leg re-fractured in a collision, will have even more physical damage and pain and suffering than if it were a first time fracture. This reasonable contention, however, rarely makes a pre-existing condition case as valuable as a first injury situation.
Contrary to public perception, and insurance company propaganda, juries are very suspicious of personal injury claimants and their attorneys.
The amount of medical bills is an important factor in assessing the value of a claim. Normally, an insurance company and a jury will reach a higher assessment of the injury if the medical expenses relate to treatment, rather than diagnostic procedures such as MRIs. It is rarely the case, as is often believed, that the value of a personal injury claim is three times the medical bills.
Chiropractic treatment almost always hurts the value of a personal injury claim. If all or most treatment is chiropractic, it is very difficult to get a reasonable settlement or jury verdict. Regardless of the chiropractor’s ability to help an injured patient, insurance companies greatly discount virtually every claim involving chiropractic treatment, and juries regularly do also.
Regrettably, low impact collisions, and collisions with minimal property damage, make it much more difficult to prove that injuries were caused by the collision. Every personal injury attorney knows that minimal impact can cause significant injuries. It takes an experienced personal injury attorney, nonetheless, to obtain a good result in such a case.
Quite often, the most important factor in a personal injury claim is the likability and credibility of the client. While likability is an unfair element to a person who has been injured, it is a fact of life. Of course, if one lacks credibility, a jury may not believe that one’s pain complaints are true. A loss of credibility, for example, can result from a client failing to tell his doctor about a previous injury or condition.
The value of a claim is enhanced by an unfavorable defendant. The defendant’s personality is often not known until a lawsuit has been filed and the defendant has given sworn testimony. A defendant who comes across as rude, abusive, and/or uncaring may be punished by a jury. If a defendant denies he was at fault, although obviously at fault, the verdict may be more favorable.
A personal injury claim is generally more valuable, often significantly more, if the collision was caused by a large truck, dump truck or any corporate vehicle. The reasons are many. Many jurors have a bad opinion of truck drivers and dump truck drivers, for example.
Larger vehicles will be assumed to have caused a more forceful impact. Moreover, many jurors may be fearful that a large verdict against an individual would harm them personally, but not against a corporation or large business.
A personal injury claim is assessed largely by the extent of the injury, and resulting pain and suffering, and the amount of medical expenses and lost income, including future medical expenses and future lost income.
In a small number of cases, punitive damages can also be assessed. Punitive damages are damages to punish a defendant or to deter the defendant, whether a person or business, from bad behavior in the future.
When the other driver is driving under the influence of alcohol or drugs, punitive damages are applicable. There are other situations which require the expertise of a personal injury attorney to establish that punitive damages are justifiable.
Determining if punitive damages are applicable often requires a deposition of the opposing driver to establish high-speed, cell phone usage, driving while in a hurry, and other factors. When punitive damages are applicable, it may also be possible to obtain attorney’s fees.
Punitive damages, however, are awarded in a small percentage of trials. Nonetheless, even when not awarded, the bad conduct of the defendant may lead a jury to award more pain and suffering damages than they would otherwise.
A major responsibility of an insurance company adjuster is to persuade the injured party not to consult with a personal injury attorney. They undergo significant training to perfect their tactics. Insurance companies will rarely make a reasonable settlement offer to an unrepresented party. They need to see that the injured party is serious about their claim, and will file a lawsuit and pursue the claim to trial if necessary.
The bottom line is obvious. “Will I end up with more money in my pocket after attorney’s fees and expenses are deducted than if I negotiate on my own?” No personal injury attorney should accept a case unless they believe that to be the case.
While no attorney can ethically promise a potential client an outcome, it is fair to say that in the vast majority of claims you will be financially better off with legal representation.
It is not uncommon for me, however, to recommend to a potential client that they should initially attempt to negotiate their claim directly with the adjuster.
When medical expenses and lost income are relatively low, generally less than $3000.00, and there are no aggravating circumstances, such as a truck or a tractor-trailer collision or when a corporation is responsible, it may be in one’s best interest not to hire an attorney.
Everyone injured in a collision, however, should first consult with a personal injury attorney. No attorney’s fee should be charged for such a consultation.
In a consultation, I will give you my unvarnished opinion as to whether you should retain an attorney. I suggest that anyone considering handling their own claim wait to make their decision on representation until after they are reasonably certain that they have fully recovered from their injuries (with the applicable statute of limitations in mind) — which should be the starting point for anyone considering negotiation.
In negotiating, it is very important to know the other parties’ insurance liability limits. A personal injury attorney will document the limits before negotiating. (Insurance companies will rarely disclose the limits over the telephone, but will disclose the limits only if a request is submitted in the manner authorized by the applicable Georgia statute).
Some insurance adjusters are initially quite friendly, hoping that you will quickly agree to settle your case for a small sum. They hope that you will settle before you have spoken with an attorney, and before the full extent of your injuries, medical bills, and lost wages are known. (Many insurance adjusters, often, I suspect, following company policy, appear to have an opposite approach, and ignore phone calls and act as rude as possible).
All insurance companies regularly lowball injured parties. They know from experience that many injured parties will accept a very low sum soon after an injury.
Before they will make any reasonable offer, insurance companies need to see that the injured person is serious and is willing to pursue a lawsuit if necessary. That normally requires representation by a personal injury attorney.
There are considerable differences between insurance companies as to how they handle claims. An experienced personal injury attorney will know the differences, and handle the claim accordingly.
Insurance adjusters often say: “Send us your bills, and we will take care of you.” It may be true that they will pay your bills accrued to date, but you will likely be forced to sign your rights away to any further recovery, including pain and suffering compensation.
With the exception stated below, no one should settle their personal injury claim until they are physically well or there is competent medical evidence that they will not get better. Sometimes, however, the injury and damages are so severe, and the available insurance coverage is so low, that a demand can be made against the insurance company early on.
Do not send any of your bills or medical records to an insurance adjuster as they accrue. Adjusters will regularly request that an injured person mail them their medical bills and records, often leaving the impression that they will pay the bills.
Opposing insurance companies almost never pay any medical bills that you send them, as they are not required by law to do so. They will not pay in part because they do not want you to get treatment, which increases the value of your claim. Therefore, the only reason they want your bills and records is to make an initial assessment of the value of your claim.
At the outset of a claim, adjusters make an initial assessment of the value of a claim, and set aside “reserves” to eventually pay the claim. First impressions carry a lot of weight with the adjuster. If the full extent of your injury has not been determined, the adjuster’s initial assessment, and set-aside reserves, will be incorrect.
Once the full extent of an injury has been determined, it is difficult to change an adjuster’s initial assessment. Therefore, it’s best to provide all documentation at the time a demand for settlement is made. In specific situations, particularly when severe injuries are involved, I may violate the above advice.
Initially, I conduct a thorough interview of you, including details of the incident, personal and medical background, possible insurance coverage available, medical treatment to date, and any other relevant issues.
Following the initial meeting, I will send a representation letter to the insurance company, with an Affidavit seeking policy limits.
At the proper time, all medical records and medical expenses will be obtained, lost income will be documented, and witnesses will be interviewed. Throughout the process, you will be regularly counseled concerning medical treatment, etc.
Sometimes an adjuster will request that the client give a telephone recorded statement. (A client should never give a recorded statement without their attorney participating). I thoroughly prepare my clients for recorded statements, and I am a party to the recorded statement. (It is my experience that adjusters are much more aggressive without attorney participation). While all clients are told to tell the truth, there are techniques to avoid giving a damaging statement.
At the proper time, a thorough demand letter and demand package will be prepared for presentation to the insurance company. A demand package will provide a thorough review of the client’s history, medical background, the collision or incident, injuries and expenses, applicable law, an analysis of the claim, and a demand for compromise.
If the insurance company responds with an offer, I will discuss with the client whether further negotiation will be useful before filing a lawsuit. (Rarely should a first offer, or a second offer, be accepted).
If compromise is not possible at that point, I’ll use various resources to determine the proper service address of the defendant(s), and prepare and file a lawsuit. (A personal injury claim can be settled at any time, including during a jury trial).
In Georgia state courts, a defendant has 30 days to file an Answer to a personal injury lawsuit, which can be extended to 45 days with the proper procedure. In most cases, there is at least a six-month period after a defendant files an Answer for the parties to engage in “discovery”.
In the “discovery process,” all parties are allowed to obtain information from the other party and from third-parties, such as medical providers.
Discovery includes obtaining documents from the other parties and obtaining written answers to questions (interrogatories) presented to the other side. Most importantly, depositions (sworn testimony taken out of court) can be obtained from the parties and witnesses.
A client’s deposition is often the most important part of the case. All clients are thoroughly prepared a day or so before their scheduled deposition. I will be with you during your deposition, and I will make any necessary objections to improper questions or harassment during the deposition. (Normally, the depositions of personal injury clients, which are taken at private offices, are not hostile or aggressive affairs).
Often after the client’s deposition and the deposition of the opposing party, settlement negotiations may begin anew. (Once the opposing attorney sees my client, and assesses his or her likability and credibility, hopefully the attorney will realize that the case needs to be settled).
If a settlement is not possible, mediation may be considered. Upon agreement, the parties go before a mediator (an attorney with experience in personal injury claims). The mediator has no decision making power, but merely is an independent party who tries to get the parties to reach a settlement.
A large percentage of claims do settle during or soon after mediation. The process often takes four to six hours, sometimes longer. Virtually all attorneys realize that the mediation process works much better than attorneys simply writing letters back and forth or making phone calls to try to resolve a case.
In the event mediation does not result in a resolution of the claim, I continue to prepare for trial.
Trial preparation includes taking depositions of one or more of a client’s treating doctors. Normally, it is too expensive to bring a doctor to trial, and not in the client’s best interest, as this expense will eventually come out of any settlement proceeds to them. (Doctor depositions are often videotaped, and are presented to the jury at trial).
Often, it takes a case being placed on a trial calendar before an insurance company will make a serious, reasonable offer to settle a case. Of course, if the case doesn’t settle, a trial is the only option. I thoroughly prepare for trial, and prepare the client for trial.
A specific time frame from initial representation until resolution of a claim is difficult, if not impossible, to predict. Many months may go by before the extent of any injury or the need for surgery can be assessed. Often, medical providers are painfully slow in providing written opinions (medical narratives), which will be presented to the insurer.
Some cases settle soon after a demand letter is presented. Depending on medical treatment, a demand letter might be presented only two months or so after the initial representation, or more than a year later for serious injuries.
If a trial is required, the time frame from filing the lawsuit until trial is anywhere from nine months to a year and half or more. In my experience, perhaps 50% of all personal injury claims require the filing of a lawsuit. In Georgia, I suspect that 5% or less of cases actually require a trial.
I provide the client with my blunt assessment, at the proper time, of the likely jury verdict range of the case, the estimated future expenses, and what I believe would be a reasonable settlement, taking all factors into account.
(Recoverable damages for a wrongful death are discussed elsewhere on this Web site).
All reasonable and related medical expenses can be recovered in a personal injury claim. (Medical expenses incurred on behalf of a minor can generally only be recovered by the person (parent or guardian) responsible for payment).
A jury must determine whether the medical treatment was reasonable or necessary, related to the incident and injury at issue, and whether the fee charged for the treatment was reasonable. Medical expenses are more likely to be contested if they are chiropractic.
An injured party can recover for the full amount of the medical or drug bill, regardless of whether any portion of the expense has been paid by health insurance. The other party or insurer will not get the benefit of the payment or of any write-off of a portion of the bill by the health insurance or medical provider.
In other words, in most situations, the jury cannot be informed that all or a portion of a bill has been paid by insurance or written-off by the medical provider or health insurer.
Future medical expenses, reasonably anticipated as a result of the incident in question, can be awarded by a jury. To recover, the potential need for future medical treatment must be backed up by a qualified medical provider.
Lost income is recoverable. Income missed while obtaining medical treatment, including the time going to and from treatment, may be recovered. Income from missed work, including a loss of sick days or vacation time, can be recovered. Such a claim is more likely to be successful if your doctor has instructed you to miss work and/or has stated that missed work was reasonable due to your injuries.
Recovering lost income is more difficult for the self-employed. You may be asked, and eventually required, to disclose income tax returns. The claim is much more likely to be successful with proof of prior earnings, and specific contracts, job requests, etc.-to show that work was available when missed.
Future lost income is recoverable. Recovery requires medical evidence that you will not be able to perform any work, certain jobs or activities in the future or that work will be limited. This is a difficult area that requires the expertise of an experienced personal injury attorney. Many large jury verdicts are based largely on proving a substantial loss of income for many years in the future.
Past, present, and future mental and physical pain and suffering can be awarded by a jury, and are usually a significant portion of a jury verdict. As a general rule, you cannot collect for mental pain and suffering alone, but the mental suffering must be the result of a physical injury. This is not always the case, which a personal injury attorney can evaluate.
Mental pain and suffering includes the emotional trauma of the incident (normally only if involving physical injury), and the general emotional problems resulting from a physical injury. The loss of the ability to labor is an element of mental pain and suffering.
There is no formula for assessing the value of physical and mental pain and suffering. A jury may factor, in addition to the extent and duration of physical pain, the emotional trauma of living with pain, scars, the inability to engage in sports and everyday activities, trouble sleeping, damaged sexual relations with a spouse, and numerous other considerations.
A spouse, who was married to the injured party at the time of the incident, may have a claim for “loss of services,” also known as “loss of consortium.” Under Georgia law, a spouse has a claim for the “loss of services” of the injured spouse. This rather formal phrase means, in part, the injured spouse’s inability, or lessened ability, to provide companionship, sexual relations, household duties including housework and yard work, or engage in other activities of the marital relationship.
In Georgia, unfortunately, a spouse cannot recover for the assistance he or she provides to an injured spouse. For example, one cannot recover for the time one misses from work to drive an injured spouse to the doctor. In my experience, juries normally award all substantial damages to the physically injured spouse. It normally takes a significantly severe injury to pursue a loss of consortium claim.
In a small number of cases, punitive damages can be recovered. Punitive damages are not awarded to compensate the injured party for their injuries, but rather are allowed to punish the wrongdoer or deter the wrongdoer from committing similar acts in the future.
In general, a party must prove that the other party committed an intentional act (an act intending to hurt someone) or that they acted with “a conscious indifference to the circumstances.”
Driving under the influence of alcohol or drugs, or driving 40 miles over the speed limit, for example, will likely subject someone to punitive damages. Juries do not have to award punitive damages however. Contrary to what many believe, it is very difficult to obtain a punitive damages award.
Unfortunately, it is rarely feasible to pursue a claim against an individual who has committed an intentional act, as opposed to an act committed with “a conscious indifference to the circumstances.”
The individual’s insurer would normally be able to deny providing insurance coverage because of the intentional act. (This, normally, is not a good defense when an employee of a business commits an intentional act). In a vehicle collision where the other party commits an intentional act, a claim, excluding punitive damages, can be filed under any uninsured motorist coverage.
In the majority of claims, a client can not recover his or her attorney’s fees or expenses of the claim and litigation. Occasionally, attorney fees and expenses can be recovered if the other party or their insurer has acted in bad faith while the lawsuit is ongoing.
And, attorney fees may be recovered if the wrongdoer is found to have engaged in egregious behavior, resulting in the underlying incident (collision). A client should assume at the outset that the recovery of attorney’s fees and/or expenses is highly unlikely.
Mediation is an informal process utilized by both parties to aid in negotiations. A mediator does not have any decision making ability, does not act as a judge, and is a neutral. The mediator does not render a decision, and does not provide legal advice.
The mediator may give each party, in private, his opinions about various issues, and play Devil’s Advocate at times. The mediator simply assists the parties in an attempt to reach a resolution of a case. Mediation normally takes place at the mediator’s office.
In most cases, both parties must agree to mediation, except, in many counties, in the event of a lawsuit, a Court may order mediation. The process is much more likely to be successful when both parties agree to attend, rather than being ordered to attend.
If mediation is agreed upon, the parties must agree on a mediator. Normally, most mediators agreed upon are associated with a mediation company (except in court ordered mediation). These mediators should be attorneys who are very knowledgeable of personal injury claims.
The mediation session starts with the mediator explaining the process to all parties. Typically, the mediator will state the above information, and will emphasize that the process is confidential, and that he will not willingly testify about anything disclosed at mediation.
Typically, the next step will be your attorney giving an opening statement, giving the mediator a thorough review of the claim, to be followed by the defense attorney doing the same. A mediator occasionally asks my client or the attorneys a few questions.
After these opening statements, the mediator typically meets with only one side at a time throughout the remainder of the mediation session. The mediator usually will bring up any relevant issues to challenge each party’s positions. The mediator passes on offers and demands, and any information either side wishes to present to the other. I also meet privately, out of the mediator’s presence, on numerous occasions with my client throughout the process.
Whether the amount in dispute is relatively small or large, mediation normally takes 4 to 6 hours. Either party can terminate the mediation session at any time.
A high percentage of mediations result in settlements either on the day of mediation or shortly thereafter. Insurance companies do not see a suggestion of mediation as weakness. Often the insurance attorney requests mediation.
Normally, mediation is not useful until several months after a lawsuit has been filed, and the parties have had ample time to obtain all needed information about the other side.
It may seem strange that the parties cannot resolve a claim without a mediator’s help. From years of experience as a mediator, and as an attorney representing clients, I know that mediation works.
Both parties get to hear arguments and contentions of the other party that they might not otherwise hear. Additionally, the mediator, as a neutral party, raises issues for both sides to consider.
In some cases, the insurance adjuster will be at mediation with the defense attorney. Usually, this is the first opportunity for the adjuster to meet the client in person (and sometimes for the attorney also). Until that point, you will be just another claimant to the adjuster.
The adjuster will have, in virtually every claim, preconceived negative opinions on your credibility and personality (it’s their nature). Your true credibility and personality can sway the adjuster to realize that you will come across well before a jury.
In my experience, when the opposing attorney and adjuster extend the effort to attend mediation, they usually make a sincere effort to resolve the claim. At times, it becomes clear that that is not the case, particularly in court ordered mediation. Mediation can be terminated at any time.
Even if your claim is not resolved quickly after mediation, the insurer’s last offer usually provides the framework for a future settlement. And, if mediation does not result in a settlement, we will normally have a better idea of the contentions that the defendant will make at trial-from the defendant’s mediation presentation. (Statements and settlement negotiations made during mediation cannot be brought up as evidence at trial).
To answer the above question, the answer is normally “yes.” The process works. However, the mediator’s fees can be expensive. A six-hour session may cost $150.00 or more per hour per party. (As part of negotiations during mediation, if the parties are close to resolving a claim, I usually propose that the insurance company cover all mediation expenses as a condition of settlement. They usually will agree).
If the case has a high enough value, and can be resolved at mediation, the cost of mediation will most certainly be less than future litigation expenses to take a case to trial. As a general rule, I will not recommend mediation if the value of a claim is less than $50,000.00.
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