The #1 question asked by my clients almost immediately after their auto accident, slip and fall or other personal injury is: “How much will I get?”
Frankly, I hate the question. Why? Because there are so many variables that go into determining the amount a claim is worth. Also, at the early stages of any injury, it is difficult, (if not impossible), to determine what the medical prognosis is for the client.
Before we can estimate a potential settlement, we need a few questions answered, including:
How long will medical treatment be necessary?
Will surgery or multiple surgeries be involved?
Will the client return to the same physical condition as before the accident, or will they have some degree of partial or total disability?
That being said, we can make a ballpark estimate without knowing the exact answers to these questions.
But before we do, let’s look at the 3 requirements needed for a personal injury claim to be viable.
Requirement Number 1
You need an injury. This means a physical injury to your body, not to your property or to your feelings. Injuries vary from a very minor and common claim of (whiplash) to the serious injuries including death, disfigurement and total disability claims.
Guess what? You will not get big money unless you have a big injury. So, if the value of your claim is high, then chances are you are in very tough shape, perhaps lying in a bed with a titanium rod inserted into your thigh looking at months of rehab and perhaps a permanent limp, or worse. By the way, in my opinion, these injuries are not worth any amount of money.
Requirement Number 2
You need fault or negligence assigned to another party. In other words, the accident cannot be your fault; it must be the fault of another party. If you drive your vehicle into a telephone pole while texting (please don’t text and drive – if you do you are 23 times more likely to be in an accident) and are injured, you do not receive a personal injury settlement for pain and suffering. In this case, you get nothing.
However, if you are partly at fault, then many states (including Rhode Island) allow you to receive a personal injury settlement based on the percentage of fault attributed to you. In other words, if your case is worth $100,000, then you get $50,000 because you were 50% at fault. This is called comparative negligence. Other states do not allow any recovery if a certain percentage of fault is attributed to you (For example, in Massachusetts – if you’re 51% at fault in an auto accident you lose!)
Requirement Number 3
The at-fault party needs to have money! What does that mean? It means you need an insurance policy. The at-fault driver needs to have a policy that will pay you for your injuries.
If not, then your policy must have a certain type of coverage (Uninsured/Underinsured) that will pay you when the other driver does not have any insurance or not enough.
Personal Injury Example
Here’s an example to help illustrate this:
Let’s say you are rear ended at a stop light while you wait for the light to turn green. Here we have Requirement Number 2 of our equation. The other driver was at fault or is negligent. There is no clearer circumstance of 100% fault than a rear end accident at a stop light.
In this accident, you suffer a compound fracture of your right femur (thigh bone). This is the injury – Requirement Number 1. Surgery is therefore required. As a result, you are an inpatient at the hospital for a week. After that inpatient stay, you are then transferred to an inpatient physical therapy for another two weeks.
Out-patient physical therapy may last months and you are out of work for three months. When you are finally discharged from physical therapy, you’re walking with a limp – which according to the Physicians will only moderately improve over time.
As a result, your medical bills are in excess of $100,000.
Let’s say in this scenario that before the accident you enjoyed running and golf. Now you cannot run. You can golf, but not as well as you used to be able to and can’t walk the course as you once did prior to the accident. As a result, your handicap goes way up.!
Furthermore, your wife, as difficult as it is to believe, has missed the time she normally spends with you. The chores and household jobs you once performed can no longer be performed.
In the larger scheme, this is a huge personal injury case. Lot’s of damages. It’s likely a million dollar case or more – and you are going to make a killing, right?
The driver who hit you is 25 years old. He works at a convenience store and lives on his own in a studio apartment. He has no assets. He also has the minimum policy required by the State. Let’s say the other driver lives in Rhode Island where policy does not exceed $25,000!
And you, having failed to listen to your lawyer and insurance agent – having failed to purchase underinsured coverage on your auto policy, you’re not in good shape.
Unfortunately, you will only get $25,000.00. And worse yet, no personal injury lawyer will take the case for you largely due to the fact that they know that the 25 year old defendant has no assets – and will simply file bankruptcy if a jury awards any money to you!
This is why you need Requirement Number 3: Money.
The Importance of All 3 Personal Injury Requirements
O.K. Let’s assume we have all three requirements. This is how we determine how you will be compensated. Your settlement will take into account the following factors.
1. Pain and Suffering
How have you suffered, how long have you suffered and how much longer will you suffer in the future. Is your injury one that requires medical treatment and rehabilitation for a period of three months or three years? Does your pain continue on after your treatment has ended? Is it permanent in nature?
2. Partial or Total Disability
Have your injuries rendered you partially or totally disabled? In our example above, you’ll have a limp for the rest of your life. You can work, but your limp and your resulting loss of function in his leg renders you partially disabled.
3. Loss of Past, Present and Future Income
You’ve lost 3 months of work. Will you miss work in the future because of your injury?
4. Loss of earning capacity
Will this injury affect your ability to earn more money (or even more than you presently earn) in the future? It may if you are a professional athlete, a tradesman, police officer, firefighter etc. It may not as much, if you’re a data programmer where all you do is sit in front of a computer all day.
5. Loss of Enjoyment
What could you do before the accident that you cannot do now? You can’t run. He can’ play golf as well or with as much enjoyment. You cannot walk, hike, swim, etc. as you once did. All activities may be diminished and painful.
6. Past, Present and Future Medical Expenses
Will your injuries require additional medical treatment in the future? Will you need additional surgeries to replace hardware in your leg in 5, 10, 15 years or more?
Are there any scars resulting from the injuries. If you have a nasty scar from incisions made when inserting the titanium rod and other hardware into your femur, this may come into play as well.
8. Emotional Distress
Has the accident affected you psychologically? Do you have difficulty sleeping? Do you have anxiety while riding in vehicles since the accident? You may now suffer from Post-Traumatic Stress Disorder in the form of anxiety and nightmares.
9. Loss of Consortium
What is that? Good question. Loss of consortium generally applies to the relationship of a husband and wife – although it can apply to the parent- child relationship also. It refers to the loss, suffered by the spouse of the injured person, of the support. Love, companionship, sexual relations and services of the injured spouse. This is actually the claim of the spouse. In our example here, it would be the claim of your wife for the losses mentioned above.
If you took the time to read this article then you now know why I hate the question: How much do you think my case is worth?
To summarize, it takes time and expertise to determine this answer. However, if your case does not have an injury and fault on the other party and money, the answer is: not much.