Personal Injury & Medical Malpractice Frequently Asked Questions
Do I need a personal injury lawyer?
You may not. If you have sustained minor injuries, or something that resolved quickly, you may do just about as well without a personal injury lawyer. California small claims court has a maximum limit of $10,000 Adding in a typical 1/3 contingency attorney fee, that $10,00 is equivalent to an attorney-assisted settlement of $15,000. Although we do not handle cases of this size, we are glad to advise anyone who calls about the pros and cons of hiring counsel if we cannot take their case, and to make referrals to other attorneys where appropriate.
If your injuries are more severe, and/or have an ongoing component, you will probably need to hire counsel to obtain fair compensation.
How to choose a personal injury lawyer?
Once you have spoken with a prospective lawyer on the phone, an in-person interview is the best way to size him or her up. There are many attorneys who handle personal injury law, and most all of them charge similar fees. You should hire someone with whom you feel comfortable working, who shows impressive knowledge about your type of case, and who you believe will give your case his or her personal attention. Some firms use paralegals or inexperienced associates to handle cases, after the client meets with a lawyer initially.
How does the comparative fault law work?
In California, all injury cases are covered by the comparative fault law. This means that responsibility for an event causing an injury will be apportioned between the involved parties on a percentage basis. In most of our cases, we are able to establish that the incident is 100% the fault of the adverse party or parties, so comparative fault does not come in to play. But the comparative fault law can help someone who is partially to blame by permitting a partial recovery. Thus, even when, for example, a pedestrian is jaywalking, he or she can still recover for accident injuries, so long as we can prove that the driver also was negligent.
Why should I hire a lawyer right away?
Injury lawyers inevitably work on a contingent fee basis. This means that you will pay the same fee if you hire a lawyer early on, or if you wait several months. The sooner you are represented, the more service and protection you will be able to get from your attorney. As you are dealing with your injuries, your lawyer can help you make your way through the healthcare system. We have considerable knowledge about a very wide variety of injuries. Additionally, we do research and consult experts to best understand our clients’ specific injuries, and give them good advice about their care and treatment.
Often clients who did not hire attorneys early on end up with problems in their cases, such as medical treatment “gaps,” failure to get appropriate testing to document injuries in the acute phase, overuse of one type of treatment, etc. Another big benefit of hiring an attorney early is that peace of mind that comes from shifting some of the burden of dealing with the situation to a knowledgeable professional.
If we have to go to court, do we sue the insurance company, or the person who caused the injury?
Under California Law, you cannot sue an insurance company for most personal injury cases. Instead, you must sue the person, and/or the company involved. After the person or company is sued, though, their insurance carrier will pick up from there, and handle everything for them, supplying them with attorneys, etc.
Is there enough insurance to cover my claim?
This is information you may or may not be able to obtain prior to filing a lawsuit. The limits of another person’s insurance coverage are considered private, even when that person caused an accident where you were injured, and his/her insurance carrier is taking responsibility for the damages. The insured person must authorize the release of this information, even though they must disclose it if a suit is filed. Your uninsured/underinsured motorist coverage could come into play, as could the party at fault’s personal assets.
Are all lawyer’s contingency fees the same?
Not exactly. Most attorneys work on contingency for personal damage cases. This saves you from getting bills while the case is pending. The standard fee is one-third of the recovery, or 40% if the case goes to court. Our fee stays at one-third unless the case is set for trial or arbitration. Some attorneys adjust the fee upward at an earlier point, so this is a key part of the agreement to examine.
What is medical payment, or med-pay insurance?
This is a separate category of coverage that is part of an auto insurance policy. This will pay medical bills of the driver and passenger for accident-related treatment, no matter who was at fault. If you have health insurance, you should use any available Med Pay coverage to pay for things the health insurance does not pay, such as co-pays, or seeing doctors and other practitioners who are not covered by the health plan.
What if I was hurt in a hit and run accident, and do not have the ID of the person at fault?
If you are covered by an auto insurance policy, the “uninsured motorist” portion of this coverage could be tapped for your compensation. This can be true even when you are not the “named insured” on the car policy, but are a permitted driver.
How much do ratings matter?
You should always look at Google or Yelp ratings. Ratings can be an important source of information, but there are mediocre lawyers who are great at getting reviews up, and outstanding lawyers who do little or nothing to encourage reviews. There is always someone who wants to post a negative review, but just as in other areas, you should pay attention if you see a lot of poor ratings.
What should I expect from my lawyer?
You should expect attentive, personal service from the lawyer who you meet and engage. You should not be referred to a junior attorney or paralegal for your case, when you met with someone else initially.
What if the police or others say that the accident was my fault?
We have had many successful cases where the police or a witness stated that our client was at fault. Investigation of an accident can often yield evidence that is not apparent at first glance. That said, if the report is in your favor, insurance companies will usually follow that conclusion, and you will have a fight on your hands to convince them that it’s wrong.
Will I have to sue to get fair compensation?
Often you will. Even in cases where fault is not seriously contested, there can be major disagreements about the value of the claim. The greater the damages, the more likely that the insurance company, or defendant will want to go the formal route, taking your deposition, having you seen by one of their doctors, getting your medical records with a subpoena, etc. Nonetheless, a large percentage of injury cases can be settled without a lawsuit. If you ask defense attorneys and insurance carriers, they will tell you that the reputation of the attorney representing the injured person is key in determining when to settle, and how much to pay. But no matter who is handling your case, they often have to file suit to get full value, even when there are no credible facts to dispute that their person is at fault.
How is the value of my case determined?
The total value of an injury claim will not be known until the treatment is complete, or the injuries have been thoroughly evaluated by doctors. Since settlement of these claims is normally a one-time-only event, we will not want to rush to attempt settlement until you have had a chance to heal, have all needed tests and treatment, etc., unless you have an urgent financial need and instruct us to settle. The amount of the medical bills incurred will be a significant factor in the recovery, as will any other damages, such as loss of earnings, out of pocket expenses, etc.
The components of a typical injury case settlement or award are: medical bills; lost earnings; property damage; and general damages. General damages account for the biggest part of most settlements. This is the category that includes pain, suffering, anxiety, related emotional distress, and future such losses due to residual problems. Determining the fair value of a case is one of the most important things your lawyer will do for you. In addition to using our years of experience to value cases, we often do extensive jury verdict research through private databases so our clients have objective information about the value of similar cases. Venue, (or what county has jurisdiction for the case), is an important part of this, as jurors in large metropolitan counties tend to be more sympathetic and generous. Even though your case may settle out of court, everyone involved will be thinking about what a jury might do in determining the “settlement value.”
How long do I have to make my claim?
The standard California “statute of limitations” for personal injury is two years. This means that you must file a lawsuit, or settle your case within two years from the date of the accident. This time limit is shortened to just six months for any governmental agency, such as a city bus, BART, etc. There are different rules for malpractice cases, but most that are against private doctors, hospitals, or clinics are covered by a one-year statute of limitations.
What if I an injured when I am a pedestrian?
We have handled numerous successful cases for pedestrians injured by motorists, including delivery drivers, parking control officers, buses, cable cars, and even bicyclists. We have gotten good recoveries for our clients in many cases where the person who hit them had little or no insurance. California law provides that drivers have a duty to yield to pedestrians, and do everything they reasonably can to avoid harming them, even when the pedestrian is jaywalking, or otherwise violating the law. [cite] Thus we have prevailed even in cases where our clients were not in crosswalks, were crossing against red lights, or were being careless in other ways.
What if the person at fault doesn’t have insurance, or doesn’t have enough insurance?
If the party at fault doesn’t have enough insurance, your own policy might make up the difference. In this case, your carrier will typically then pursue the party to collect what they pay you. This type of recovery is only available when your automobile underinsured motorist policy exceeds that of the party at fault. Most people do not realize that their own uninsured motorist coverage can be tapped for a recovery, even though they were not even in a car when they were injured.
In some cases, the party who has too little insurance may have valuable assets. In this case, your best bet can be to pursue them, rather than accepting your own insurance carrier’s benefits. We have had numerous cases where we obtained much greater recoveries from parties at fault directly than we could have from our client’s underinsured motorist benefits. This is a lot more work, but can deliver a much greater recovery for you.
When the party at fault is has no insurance or is underinsured, we investigate to see what property and other assets he or she might have, and typically require them to certify their assets under penalty of perjury before entering into any settlement. If they refuse to sign, we typically recommend filing suit.
How are case costs handled?
Case costs, such as investigator’s fees, medical records and doctor’s reports fees, filing fees, etc., are usually advanced by us, as if they were a no-interest loan to you. We recover these expenses when your compensation is received. We do not charge you for these fees if the case should be unsuccessful.
