What are the Factors that go into Valuing a Personal Injury Claim?
Valuing a Personal Injury Claim
A. Liability Issues.
Was the defendant clearly at fault in causing the accident? Did others also contribute to cause the accident? The general rule in New Hampshire is that a defendant is only liable for the degree to which his actions contributed to cause the harm as measured against the fault of all others who may have contributed to cause the harm.
Did the plaintiff’s own actions contribute to cause his or her injury? If, for example, the plaintiff is found to be 20% at fault in contributing to cause his own injury, his damages at trial are correspondingly reduced by 20%. This is known as comparative fault.
B. The Extent of the Plaintiff’s Injuries.
Of course, more serious injuries are valued more highly than less severe ones. Were bones broken? Or were there only bruises? Was the plaintiff hospitalized? Did the injuries require surgery?
With reference to the back, was the injury limited to damaging soft tissues? That is, was the injury limited to a sprain or strain of ligaments? Or was there a disk injury, such as a bulging or herniated disk?
C. The Amount of Medical Bills.
More serious injuries often require more extensive and expensive medical treatment. The medical bills for necessary treatment of accident – related injuries are always itemized and tallied. These are known as medical special damages. Sometimes bills related to a series of costly diagnostic tests that come back negative are given less weight than tests that come back with a positive result indicating a more serious injury or condition.
D. The Nature of the Treatment.
Did the plaintiff’s injuries resolve with a minimum of medical intervention? Or was surgery required followed by a long period of recuperation, with or without physical therapy?
Was a majority of the treatment chiropractic care? Insurance companies typically are very skeptical about extended periods of chiropractic care, especially where it was not prescribed by a medical doctor. Likewise, some alternative therapies are not taken as seriously as traditional medical treatment.
E. Is There Permanent Scarring?
Did the injuries or treatment results in scarring? Where on the body? Is that plaintiff young, old, male, or female? Not unexpectedly, a scar on the face of a young female is considered more deserving of compensation than the same scar on an older male. A scar that is on a part of the body that is normally covered by clothes is less valuable than a facial scar.
F. Is There a Permanent Impairment?
At some point typically, the treatment for the plaintiff’s injuries ends. The plaintiff is then considered to be at a medical end point. If the plaintiff is then not back to his pre-accident condition, the plaintiff may be scheduled for a permanent impairment evaluation. Such an evaluation determines whether the plaintiff’s injuries may be deemed permanent and what the degree of impairment of what part of his or her body has resulted. Generally speaking, an injury that results in a permanent impairment is valued more highly than one that does not. Also generally, a permanent impairment of a greater degree is more valuable than one of a lesser degree.
There are exceptions to this general rule. For example, a concert pianist may have sustained a permanent impairment of his little finger that substantially interferes with his ability to play the piano. The same injury to the nondominant hand of laborer would have nowhere near the value.
G. Were There Pre-existing Injuries?
Pre-existing injuries to the same area of the body that are injured or re-injured in the accident always complicate a claim. Insurance companies and their defense counsel always attempt to relate to a present condition to one that may have existed in the past even if that pre-existing condition had resolved. A very challenging situation is presented where the plaintiff is in active treatment for a condition and gets into an accident that aggravates that same condition. The personal injury attorney, in those circumstances, will have to consult with the plaintiff’s doctor to get an opinion that sorts out what is related to the pre-existing problem and what was caused by the accident.
H. Low Impact Collision.
There is no question but that from a medical point of view even a low–impact collision can cause nagging injuries. However, when the impact is relatively small or slight and the plaintiff’s complaints are severe and long-standing, the insurance company and its defense counsel will attempt to establish that the plaintiff is exaggerating his or her symptoms.
I. The Plaintiff’s Doctor’s Opinion.
The plaintiff’s injuries and treatment are documented in his or her medical records. Some doctors provide more elaborate documentation than others. Whenever there is a question about the nature, extent, or severity of an injury, the best person to answer the question is the treating physician. Some doctors are more accessible than others to lawyers who seek their opinions. Having a doctor who is supportive of his patient and who will cooperate with his lawyer can make a very big difference in a claim.
J. Health Insurance.
The plaintiff’s medical records, to a large degree, document the nature, extent, and severity of his or her injuries. If the plaintiff does not have health insurance, he or she may not have access to the treatment that is necessary to address his or her injuries. When there is little or no treatment, there is little or no medical documentation of the injuries. Unless the injury is dramatic and catastrophic, for example an amputation, the absence of regular follow-up treatment that is documented can adversely impact the value of a claim.
K. Pain and Suffering.
The injured party may seek compensation for her pain and suffering. Insurance companies and their defense counsel often claim that such complaints are subjective with no objective proof of their existence. Once again the medical records can help establish the nature and extent of the complaints where the plaintiff’s subject complaints are documented and addressed, for example, by the doctor prescribing pain medications.
L. Loss of Quality of Life.
Injuries often disrupt a person’s life in diverse ways. The plaintiff may have been very active in recreational endeavors before the accident and but left unable to recreate after afterwards for a short while or long. Having documentation of a pre-accident hobby or activity that is interfered with by the injuries can add to the value of a claim.
M. Inability To Work.
If the plaintiff loses time from his employment, he may claim for his lost wages. Those lost wages will have to be documented usually by statements from the employer and / or tax records. This can routinely be done where the plaintiff had a well-documented period of employment before the accident followed by a period of disability.
If the plaintiff, however, was working “under the table” with no documented earning history, establishing lost wages is difficult. Or if the plaintiff is self-employed and has not reported all his earnings on tax returns, seeking compensation for the actual loss of earnings is likewise difficult.