What is a Personal Injury?
A personal injury occurs when you have suffered some form of injury, either physical or psychological, as the result of the fault of another. You then have the right under our country’s the laws to recover money damages to compensate you for the harm you or a close family member may have suffered due to the negligence or intentional act of another. Most personal injuries fall under the category which lawyers call a “tort”.
Torts may involve a car accident involving two or more cars, trucks, or a bus, a pedestrians, motorcyclists, bicyclists, or other motorized vehicles on or off of a public highway. A rear end collision is the most common tort with which we are most familiar.
Additionally, torts involve injuries or event which have been economically damaged another due someone’s fault. The negligent person could be a corporation or an individual. In the case of a simple rear end collision, if one is injured and cannot work, the economic loss is not just medical bills, but the injured person’s wage loss and property damage to their vehicle.
Types of injuries caused by folks who are negligent may include wrong death and survival claims, defective products claims, construction site or work place injury claims, premises claims and medical malpractice claims, which arise out of the negligence of a doctor, a hospital or a lower tier health care provider in the care and treatment of a patient. The injury or harm to the patient does not have to be intentional. Medical malpractice arises in negligence, meaning, the care of the health care provider fell beneath the standard of care of a reasonably prudent provider, in his or her specialty, acting under the same or similar circumstances at the time of the injury.
Examples of medical malpractice may involve a mid wife during a child birth, or a physician’s assistant working under a lack of supervision of the attending physician or failing to refer a difficult case to a doctor or specialist rather than handling it himself/herself, or a nurse practitioner who commits negligence and causes injury and is not supervised sufficiently by her attending or fails to refer the case to a doctor rather than take it on herself/himself or a family doctor who is negligent in the care and treatment of a patient when he/she takes on care of a patient when the patient should have been referred to a specialist and not treated by the primary care family doctor, or when a specialist- such as a surgeon- negligently operates on a patient causing an injury to the patient are all examples of Torts which are also personal injury cases.
Medical malpractice may involve failure to provide informed consent to a patient. If a patient is not properly informed before a surgery or a procedure, the patient can recover damages for his/her injuries caused by the failure of the health care provider to provide informed consent to the patient which results in an injury or harm to the patient because the patient, had they been properly informed, would not have chosen to undergo the procedure.
Other examples of personal injuries are:
- Slip and fall accidents
-Injury to children or people injured on another’s property
-Dog bite injuries
-Elder Abuse or other clergy abuse cases
-Work place injuries or construction site injuries caused by the negligence of another worker or contractor
Even if there is clear negligence and the person at fault admits fault, you may not have a case which makes economic sense to pursue; or you have have difficulty proving “causation”. This is all part of the process to assess and evaluate your case and whether it is meritorious. Often there I malpractice but you cannot prove the damages or injuries were caused by the medical negligence and the lawyer may decline your case.
To this end, even if you assume the other person was at fault, can you prove that your injuries and damages were caused by the negligent act of the at fault person or did the follow from another or different cause than the rear end collision or the act of medical malpractice?
This is usually the crux of the case which must be evaluated before a lawyer will take on your battle. For example, in a medical negligence case, the doctor operated on the wrong leg. The doctor caught the mistake, that is, the nurse marked the wrong leg in the pre-op room before the patient was taken into the operating room. The patient was anesthetized but was brought out of it before the operation proceeded. The hospital and the doctor recognize their errors and offer to pay for the patient’s out of pocket expense and do so.
Query: Is there malpractice? and if so, is this a cost effective case to take to a lawyer?
The answer is not simple. Yes there was medical negligence, but it is not necessarily cost effective to litigate and move this case froward because the patient has minimal, if any, damages. The health care provider paid all economic and out of pocket losses but there was no personal harm to the patient.Yes there is a personal injury, because the patient was inconvenienced or put under for a short period of time, but it is a case which should settle and not be litigated by a lawyer because the economics do not dictate that there are sufficient economic damages.
Additionally, a lawyer must evaluate comparative fault, assumption of risk or mitigation of damages, which are common defenses raised in personal injury cases. A client may be partially responsible for causing their injury. Take the rear end car accident. In a chain collision where there are multiple rear end impacts and multiple cars involved, a client may be partially at fault if he or she is rear end after they first rear ended the car in front of them. The reason is that the client was also following too closely and may have contributed, partially, to the collision. If you assume the client was 25 % at fault for rear ending the vehicle in front of it first, before it was rear ended, then the fault of the injured person (25%) reduces the total damages the person can recover. Whatever percent the person is comparatively at fault will be a damage reducing factor when determining the value of Plaintiff’s personal injuries.
Often the spouse of the injured person will also have a claim for personal injuries or damages if they were in the zone of danger and witnessed the accident, or if they suffered damages which lawyers refer to as damages for “loss of consortium”. This means a family member, husband, wife, daughter or son can recover for the loss of the love, affection, companionship, support and loss of a loved one. These claims for damages are also part of the personal injury case.
If you or a loved one, a friend or family member have suffered an injury or economic loss cause by the negligence or intentional act of another you may be entitled to compensation if you have suffered a personal injury.
For further information and/or to speak to or to email Rob Kornfeld directly about your particular situation feel free to CALL ROB NOW for a FREE CONSULTATION at (425) 893-8989 or contact Rob directly for a quick response.
Author: Rob Kornfeld