Hundreds of car accident victims suffer whiplash injuries every day. If it happens to you, you are entitled to compensation. A whiplash injury can be debilitating for a long period of time, disrupting ordinary life. What Types of Compensation Can I Recover in a Whiplash Claim? The types of compensation available to whiplash injury victims will likely include: Current and future medical bills related to the injury Current and future lost wages if the victim is unable to work Pain and suffering Loss of enjoyment of life Any other out-of-pocket expenses related to the injury How Much Compensation can I Receive for a Whiplash Injury? There are many factors taken into account when whiplash compensation is being calculated. The severity of the injury, your financial losses, and how the injury has impacted your way of life will influence your claims’ value. The majority of whiplash injuries are classified as minor, with an average recovery time of around 4-5 weeks. Ninety percent of people fully recover within three months. For these cases, the approximate range of compensation is between $2,500 and $10,000. Most of the other 10 percent or so of cases, where there is permanent or recurring pain that lasts for years, the amount may escalate to around $30,000. At the other end of the scale, a small minority of car accident victims suffers permanent cervical spine damage. This type of whiplash injury can result in chronic pain, headaches, and a variety of other symptoms. For these cases, there may be a six-figure settlement or more. What are the Symptoms of Whiplash? Whiplash neck injuries occur when the impact of a car accident causes the head to violently and abruptly be thrown backward and then forward. Symptoms can include: Stiffness in the neck – soreness and difficulty moving the neck, especially when trying to turn the head to the side. Blurred vision – a lack of sharpness of vision resulting in the inability to see fine details. Headaches – a tightening around the head and neck, followed by aches. Lower back pain – any pain between the bottom of your rib cage down to the top of your legs. Dizziness – a sensation of spinning and losing one’s balance. Ringing in the ears (tinnitus) Sleep disturbances Irritability Tingling or numbness in the arms Difficulty concentrating Rear-end car accidents are the most common cause of whiplash. Do I Need a Lawyer for My Whiplash Injury Claim? Insurance companies will typically offer an amount of compensation for a whiplash injury that is a fraction of how much you may legally be entitled to claim. Speaking to a car accident lawyer before accepting any type of settlement offer will protect you from recovering less than what you’ll need for the injury’s impact on your life. Although whiplash injuries typically heal, they leave victims in pain with reduced mobility, and a decreased overall quality of life. As a result, they may require ongoing medical care and may also miss days, weeks, or even months of work. Most Houston car accident lawyers offer free consultations to discuss your case and learn its value.
Whether or not you should sign a release after a car accident depends on the specifics of your case. Any time you are injured in a collision caused by the careless or reckless behavior of another person, the insurance company for the at-fault party will ask you to sign a release of liability. However, it could be a mistake to do so before consulting with an attorney. What is a Release of Liability? Signing a release form basically means you are letting go or releasing the responsible party from further liability. In other words, you are giving up your right to sue for any future damages resulting from the accident. For instance, you may not be compensated for future medical bills, lost income, or pain and suffering. Do Insurance Companies Require a Signed Release Form? The at-fault driver’s insurance company may ask you to sign a release form before paying you any compensation, or paying the body shop you have chosen to repair your vehicle. It is a final payment, so you must review the form carefully to make sure that you are only releasing liability for the aspects of your claim which you have settled. For instance, if your claim has not been finalized with regard to your injuries suffered in the accident, make sure the form does not release liability for your injury. If your own insurance company is paying you for the accident, they will also require a signed release of liability. What To Do Before Signing a Release of Liability Before signing a release of liability, schedule a free consultation with an attorney to discuss your case. Insurance companies will often pressure car accident victims to sign a release and accept a quick settlement offer. They do this in an attempt to minimize payouts on a claim. A car accident attorney can advise you on if you are recovering the maximum amount of compensation allowable for your claim. Additionally, you may need permission from your own car insurance company before signing a release of liability. This is typically the case when your insurer must pursue a subrogation claim. Subrogation refers to the process by which your insurance company recovers money from the at-fault party or their insurer for funds they, or you have already paid. For instance, if you are hit by an underinsured driver whose policy limits aren’t enough to fully compensate you for your losses, your own insurer may be able to make up the difference under your underinsured motorist coverage. Your insurer will then use your legal right to go after the other driver or their insurer to recover the money they paid you. If you sign a release without your insurer’s permission, they will not have the ability to go after the other driver for reimbursement. Your insurer may then try to deny your claim for benefits under your underinsured motorist coverage. We Can Help Our Houston car accident attorneys have extensive experience helping injured victims navigate their claims. Contact us today through our website or by calling (713) 489-4270 to schedule a free consultation.
When you have been involved in a car accident, certain evidence will be particularly important for your personal injury or property damage claim. This evidence varies in form, and will help protect your right to compensation. Here are the types that can strengthen your case: Photo and Video Evidence If you can, take pictures and/or video of the following from varying distances and different directions: The damage to all cars involved (external and internal) Final position of the vehicles after the collision Road conditions Weather conditions Skid marks Road signs and/or traffic lights Your injuries These photos/videos can corroborate and support your version of how the accident occurred. They may contain clues about the direction from which your vehicle was struck, the speed of oncoming vehicle(s), and possibly the distance to a traffic sign or signal. Any debris, such as shredded tires or brake lines could indicate a manufacturer defect or other contributing factors. The top priority after an accident, however, is seeking medical care. If you are seriously injured you may need to ask someone else or hire an attorney to document the scene for you. Police Reports Calling the police to the scene is vital to proving who is at fault. Texas law also requires you to report an accident to the police when someone is injured or if there is more than $1,000 in damage to one or more of the vehicles involved. A police report will provide an official record of the accident and will contain details of their investigation. The officer will speak to each party, take notes, possibly draw a diagram of the scene, and will give their opinion as to what, where, and when they believe the collision occurred. Depending on the circumstances of the accident, they may also arrest a driver or ticket them for a moving violation. Witness Statements Witnesses can give honest accounts of exactly what they saw, demonstrating your lack of fault to an insurance company or a court. Write down the details of and contact information for as many witnesses as you can find. This information will also likely be found in the police report. Medical Records Ongoing medical evidence pertaining to your injury will establish how the accident has impacted your life. The most important proof is regular consultations with medical professionals and completing the ongoing treatment they advise. Doctors will keep detailed records on your visits, condition, and advised treatment plan. These records are key pieces of evidence for an insurer or at trial. If you do not seek medical care or stop treatment, you may not receive the compensation you need and deserve for your injury. Speak to an Experienced Houston Car Accident Attorney If you were recently injured in a car accident, contact Milano Legal Group for a free consultation. We will help you collect the evidence you need to prove that the accident was not your fault, that you were injured, and how your life has and will be impacted as a result.
If a chain reaction of car accidents is caused when one car strikes another and in turn pushes that car into a third, and so on, determining fault can be challenging. Several cars may be damaged, and one or more parties involved injured. Leading to a tangle of liability claims with multiple insurance companies that may result in lengthy legal disputes. If you have suffered an injury in a multi-vehicle accident, you may be wondering if you are entitled to compensation and how to go about collecting it. A reliable car accident lawyer in Houston can help you navigate through the process and ensure you have ample evidence to prove fault. How Fault is Assigned in a Multi-Vehicle Accident Oftentimes, it is the car in the back or the first drivers who hit one another that are assigned the most liability in a multi-vehicle accident. However, who started the domino effect and failed in their duty of care to keep others on the road safe is not always obvious. Several drivers may be partially to blame. Each incident is unique and will require an investigation to produce an extensive breakdown of the events that took place, before a decision on liability is made. Factors that may be considered are: Witness statements. Police reports. Any available video surveillance, or black box data if a large truck was involved. If a state or local traffic law was violated by one of the drivers, or if a citation was issued. Where the accident took place and the position of the vehicles once they came to rest. The severity and location of damage to the vehicles. Road conditions at the time of the accident and whether a driver was traveling at an unsafe speed for the conditions. If one of the drivers was making a left turn. Timing is also everything. In general, the closer in time your car crashes to the original accident, the less at fault you are. If your car crashes after an accident has already occurred, you may have been able to avoid the accident and could be found responsible for your injuries and property damage. How Texas’ Rule of Comparative Negligence can Affect Your Financial Award Texas follows the rule of modified comparative negligence, which can impact the amount of compensation you receive after a multi-vehicle accident. You still have the right to collect an award, even if you are partially at fault. However, you must be found to be 50 percent or less responsible, and your award will be reduced by your percentage of liability. The way that works is as follows: If you are found between 1%-50% at fault, your compensation award will be reduced by that percentage. For example, if you are 30% responsible and awarded $100,000, you will receive only $70,000 in compensation. If you are more than 50% at fault, you will not be allowed to recover compensation. If you are 0% at fault, your compensation is unaffected. Call Our Houston Car Accident Lawyers Today Working with a Houston multi-vehicle accident lawyer will ensure you have the evidence you need to demonstrate why other parties are responsible for your injury. Our team at the Milano Legal Group PLLC is dedicated to representing victims of negligence. We are prepared to carry the legal burden for our clients and their families, so they can focus on recovery. Contact us today for a free consultation, by reaching us online or calling (713) 489-4270.
Fortunately, the state of Texas does provide legal options for passengers who are injured in a car accident. Being in a crash is not a pleasant experience, especially if you played no role in causing it. It can be a life changing event with permanent implications for anyone involved. Since recovering a fair amount of compensation in an injury claim is often difficult, you may wish to consider speaking to an experienced Houston car accident attorney at the Milano Legal Group PLLC. We offer a free consultation, contact us today. How to File a Passenger Accident Claim in Houston, Texas How you file a claim as a passenger involved in a car accident, will depend on who was at fault. Once the insurance companies of each party make that determination, you can file your claim against the liable driver’s insurer. When Your Driver is Responsible In most cases, injured passengers can collect damages from the driver of the vehicle they are in. It may seem uncomfortable to pursue a claim if the driver is a relative or a friend, but keep in mind it is the insurance company that will compensate you for your losses. There is an exception, however, if you are members of the same household. Most insurance policies will then prohibit the filing of a passenger injury claim. When another Driver is Responsible When a different driver is found at fault for causing the accident, a passenger injury claim can be pursued against their insurer. When Both Drivers are Responsible When both drivers share liability, passengers still have the right to collect compensation from each party. As long as the amounts awarded do not collectively add up to more than the amount of damages the claim is worth. The state of Texas sets a limit of two years on the amount of time you have to file an injury claim. If you wait too long and miss that window, you lose the legal right to pursue compensation. What Damages Can I Recover in a Passenger Injury Claim? A personal injury attorney can help you pursue the following types of damages and expenses related to your car accident case: Past and future medical costs and expenses. Lost wages and loss of future earning capacity. Loss of affection and companionship. Disability or loss of normal life. Disfigurement. Pain and suffering, including physical, mental and emotional distress experienced in the past and what you will continue to suffer from in the future. Every accident claim and its estimated value are unique. When you meet with an injury lawyer at our firm, we can help give you an idea of your case’s worth. Speak to an Experienced Passenger Injury Attorney in Houston Our car accident lawyers at the Milano Legal Group PLLC know how to help passengers deal with multiple insurance company claims. We will do everything in our power to hold the responsible parties accountable and obtain the maximum amount of compensation. To learn more, call (713) 489-4270 or send us an email to arrange a free consultation.
It is the responsibility of every driver to avoid accidents and ensure it is safe before changing lanes. Doing so carelessly is not only dangerous, but against the law. On the other hand, that doesn’t give others a free license to run into you when you are changing lanes. When an accident does occur, it can be a bit more difficult to determine exactly what happened and who is at fault without talking to an experienced car accident attorney. Determining Fault in a Lane Changing Accident Typically, the driver who is changing lanes is the one who is at fault for the accident. When passing, drivers must make sure the lane is clear by not only checking their mirrors, but also blind spots, which require you to physically turn your head and look out the back side windows. Signals must also be used. In general, if a party breaks any rule of the road, they are responsible for a lane changing crash. Liability may be apparent if you or the other party: Fails to signal when changing lanes. Changes lanes into another vehicle Passes in a no-passing zone. Fails to return to the right lane. Prevents another car from passing. Violates any other traffic laws (such as by speeding) But, that is not always the case. If more than one driver was switching lanes, there might be some debate as to who is liable or both parties might be. Several factors specific to each case will be considered, such as where the impact on the vehicles occurred, the severity of the damage, the speed at which they were traveling, etc. Proving Fault in a Lane Changing Accident To be successful in a claim for compensation, the following elements must be established: The at-fault driver had a duty of care to drive safely, and follow the rules of the road. The at-fault driver breached that duty by unsafely changing lanes. The at fault driver’s breach of duty directly caused the accident and your injuries. You sustained calculable losses as a result of the accident, such as medical bills and lost income. Proving fault will require evidence and documentation that supports your claim. An accident attorney can help you gather any accident reports, medical records, medical bills, proof of missed work and lost wages, repair estimates, photos of the damages and injuries, and statements from any witnesses. Shared Fault in Texas In Texas, as long as a driver is less than 51 percent responsible for an accident, they can recover compensation. However, the total amount awarded will be reduced by the percentage of fault. For example, if the vehicle that changed lanes is 80 percent at fault and the other driver is 20 percent, the driver who is 20 percent at-fault can recover 80 percent of the compensation they are entitled to. Speak to a Lane Change Accident Attorney Our team at the Milano Legal Group PLLC has extensive experience representing clients who have been injured in a lane change accident. We offer consultations free of charge, call us today at (713) 489-4270 or reach us online.
Whether you’ve been injured in a car accident or not, it’s important to take the necessary steps to protect your rights. Even if you think the damage is minor or don’t immediately feel like you’ve been injured, it’s always a good idea to seek the advice of a Houston car accident lawyer. If you end up seeking medical treatment for an injury that surfaces later on or the damage to your vehicle ends up being more than you thought, you want to make sure you can document the accident for insurance claim purposes. 1. Seek Medical Attention Immediately After you’ve been involved in an accident, seek medical attention immediately. Call 911 and wait for the police and other first responders to arrive. Your health should be your number one priority at this point. If the fire department or ambulance arrives, it might be the best thing for you to go. Don’t be cheap and avoid going to the emergency room if you feel like you’ve been injured. Remember, even a minor impact can create substantial injuries. To rule out any life-threatening conditions such as internal bleeding, broken bones or traumatic brain injuries, it may be smart to go to the emergency room even if you don’t think your injuries are serious. If you decide to seek treatment at the emergency room, make sure you’re as thorough as possible in describing any of your symptoms to the emergency room personnel. If the doctor doesn’t know your symptoms, they won’t be able to properly diagnose and treat you and these complaints will not appear in your emergency room medical records, which can later hurt your case down the road. Also, always listen to the doctor’s orders. If they recommend that you follow up with your primary care doctor or another healthcare provider, you should always do so. If you don’t immediately seek medical attention and you are injured, seek treatment as soon as possible. 2. Know the “Rules of the Road” – What are your Duties under Texas law? After assessing your overall health and safety, you should know the duties under Texas law after you’ve been involved in a motor vehicle accident. Title 7, Subtitle C, Chapter 550 of the Texas Transportation Code (“Rules of the Road”), which applies to accidents on most roads and highways, other than some residential property parking areas or garages/parking lots. When an accident involves personal injury or death, the parties involved are required to immediately: stop their vehicle at the scene of the accident or as close to the scene as possible; return to the scene of the accident if the vehicle is not stopped at the scene of the accident; determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and remain at the scene of the accident until the operator complies with the requirements of the duty to give information and render aid. This includes giving the operator’s name and address, the registration number of the vehicle the operator was driving, and the name of the operator’s motor vehicle liability insurance to any person injured or the operator or occupant of or person attending a vehicle involved in the collision; if requested and available, show the operator’s driver’s license to any person injured or operator or occupant or person attending a vehicle involved in the collision; and provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation. If there are injuries or death of a person or damage to a vehicle to the extent that it cannot be normally and safely driven the duty of the operators of the vehicle involved to immediately alert the police. Failure to stop or comply with these rules can result in a 2nd degree felony for accidents involving death of a person, 3rd degree felony for accidents involving seriously bodily injury, or up to five years imprisonment in the Texas Department of Criminal Justice or up to one year confinement in the county jail do so can result in jail time, a fine of up to $5,000, or both. When an accident only involves only vehicle damage, the parties involved are required to: immediately stop the vehicle at the scene of the accident or as close as possible to the scene of the accident without obstructing traffic more than is necessary; immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and remain at the scene of the accident until the operator complies with the requirements to give information and render aid. If an accident occurs on a main lane, ramp, shoulder, median, or adjacent area of a freeway in a metropolitan area and each vehicle involved can be normally and safely driven, each operator shall move the operator’s vehicle as soon as possible to a designated accident investigation site, if available, a location on the frontage road, the nearest suitable cross street, or other suitable location to give information and render aid, and minimize interference with freeway traffic. Failure to comply with this provision can result in a Class C misdemeanor. Failure to comply with this provision can result in a Class C misdemeanor, if the damage to all vehicles is less than $200; or a Class B misdemeanor, if the damage to all vehicles is $200 or more. 3. Have a Police Officer Fill Out a Crash Report Make sure when the police arrive, have them fill out a crash report. This is an important piece in dealing with your accident claim. More information about crash reports is below. What is a Texas Peace Officer’s Crash Report (CR-3 Form)? A Texas Peace Officer’s Crash Report is a written summary of a motor vehicle crash. It identifies the time, date, location,…
How Much Can I Get for Pain and Suffering? This question is extremely common for most car accident injury victims. Actually, I’d say it’s as common as the “How much is my case worth?” question. Similar to the overall case value question, the answer is the similar–the pain and suffering calculation widely varies. First let’s look at what Texas courts have said. According to the court in Green v. Meadows, 527 S.W.2d 496 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.), the amount of damages necessary to compensate for pain cannot be determined by a set formula. The court in Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961), ruled that damages for physical pain are left to the sound discretion of the jury based upon their common knowledge and sense of justice. So, we know from these two cases that there’s no exact formula to calculate pain and suffering. In addition, the court in Hernandez v. Baucum also stated that a jury may award zero damages when the pain is almost entirely subjective, based on the plaintiff’s personal reports of pain to doctors, supervisors and family members. That’s why it’s important to have additional evidence of pain, which will be discussed below. Two Common Methods for Calculating Pain & Suffering Throughout your search online you will most likely find two common ways pain and suffering may be calculated: the “Multiplier” and the “Per Diem” methods. Multiplier Method The Multiplier Method calculates pain and suffering by multiplying the injured party’s total medical bills and lost wages, also known as “Special Damages,” by some multiplier, such as 1.5 – 5. With 1.5 being the least minor injury and 5 being the most severe injury. This figure is then added to the Special Damages total. For example, if Paula Plaintiff has $5,000 in medical bills, $1,000 in lost wages, and she received minor sprains and strains in the car accident that was caused by Dexter Defendant, we may assign a 1.5 times Special Damages as her pain and suffering multiplier, or $9,000 ($6,000 x 1.5). So, using the Multiplier Method, Paula’s pain and suffering would equal $9,000 and her total case value would be $15,000. Per Diem Method The Per Diem method is another method used to calculate pain and suffering in a car accident injury settlement. The number of months, days, or hours are multiplied by a certain dollar figure that is either equal to the amount of pay the injured party receives in their job for that specific time period or some other arbitrary number. For example, if Paula Plaintiff suffered pain for 200 days from the accident and made $200 per day as a construction worker, the pain and suffering calculation would equal $40,000. The idea behind using a daily salary rate calculation as the daily rate of pain and suffering is that it could be thought that the pain associated with an injury is comparable to the effort of working a job. Although the Texas court in Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961) ruled that it was a “fair argument and a rational approach for pain the way it was endured, month by month, and year by year,” in proposing a pain and suffering calculation to the jury at trial, it is not an accurate estimate of what the value of pain and suffering will be assigned in a car accident settlement. The large misconception about these two methods is that insurance companies and juries actually use them to calculate pain and suffering. Simple answer: they don’t. Although insurance companies in the past may have employed some sort of multiplier to calculate a rough estimate of an appropriate settlement offer in cases involving soft tissue injuries (e.g., whiplash), insurance companies now use settlement software such as Colossus to arrive at an appropriate settlement range, based on prior settlements, localized medical charges, and other claim characteristics. If a case goes to a jury trial, juries are instructed to assign a sum of money that would fairly and reasonably compensate the plaintiff for the physical pain and mental anguish sustained in the past and future. Juries use their best judgment based on the evidence presented to them throughout the trial. For a more in-depth discussion on how pain and suffering is calculated, click HERE. You do not have to face a serious injury case alone. Contact our attorneys for a free consultation about how we can help you. Call (713) 489-4270 to speak to our Houston personal injury attorneys directly.
Were You Injured in a Car Accident? Maximize Your Compensation. Were you injured in a car accident as either a driver, passenger, pedestrian, or on a motorcycle or bicycle? We will discuss 22 tips on how to maximize your personal injury case compensation. Whether your injuries are relatively minor, such as whiplash, sprains, strains, or bruises or are major such as broken bones or paralysis, it’s important to identify how you can increase the value of your personal injury case. Before we go over the list of ways to maximize your compensation, let’s first discuss what are the categories of compensation or “damages” that you are allowed to recover under the law: Medical Expenses This is often the largest part of your “economic damages.” Economic damages are those that are easily quantifiable into a dollar figure. You are entitled to be compensated for all your medical expenses that you accrued as a result of the accident. This includes past out-of-pocket medical bills such as prescription pain medication you paid for at the pharmacy, medical bills that your health insurance / Medicaid / Medicare paid for, and any outstanding medical expenses. In addition, any future medical expenses that you can prove you need after you settle your case and beyond can also be included in your damages. Lost Wages Another part of your economic damages—past lost wages—include any lost time you missed from your job as a result of the accident. This includes the time for which you didn’t get paid, vacation time you took, and sick time that you used. Lost earning capacity is also a subcategory of lost wages and is the lost earnings you will experienced in the future as a result of your injuries. You’ll likely need proof from a vocational economist to prove your expected earning potential in the future. Physical Pain and Suffering Past and future physical pain and suffering are often the most well-known type of “non-economic” damages. Non-economic damages are those damages that are not so easy to quantify. Just think how difficult it is to place a dollar figure on someone’s pain. Physical pain and suffering is the physical pain that you feel as a result of your injury. Sometimes this is bunched in with mental or emotional pain or anguish, but this is a distinct category of damages that is a recognizable part of your personal injury compensation. The difference between the two is that physical pain and suffering strictly concerns the actual physical pain that an injured party feels from a physical injury and mental or emotional pain or anguish is the mental effects that the pain has on the injured party. Mental or Emotional Pain or Anguish Past and future mental or emotional pain or anguish, as mentioned above, is strictly the negative mental effects that the injury has on the injured party’s mind. This could include the feelings an injured person has when they think they may never be able to walk again without a cane or limp. Loss of Consortium / Loss of Companionship & Society Loss of consortium / loss of companionship and society are the damages that the family of the injured party can recover from losing the benefits of the relationship from the injured party. This claim piggybacks onto the underlying personal injury claim of the injured party, but is strictly the spouse’s or family member’s claim, not the injured party’s him/herself. Disfigurement Disfigurement damages is the compensation for the scarring and the lasting physical traces of the injury left behind on your body. This includes scars, loss of limb or other body part, burns, and skin grafts. The disfigurement can be from the primary injury or from the effects of the required medical intervention on the injured body part, such as scars from scalpel cuts or stitches. Physical Impairment Physical impairment is another type of non-economic damages recoverable in a personal injury case. Physical impairment damages provide compensation to an injured party for the loss of the ability to do certain activities that the injury party had done prior to the accident, but now are performed with physical limitations. Physical impairment damages is usually limited to those injured parties that have suffered a permanent injury. Loss of Enjoyment of Life Compensating the injured party for losing the ability to enjoy certain aspects of their life as a result of their injuries is the purpose of loss of enjoyment of life damages. Not being able to take part in hobbies they once enjoyed or playing with their kids are some examples of situations where this type of damages are recoverable. Punitive Damages Think of gross negligence when you think of punitive damages. Punitive damages are meant to punish the liable party for their bad behavior. These damages are available to those injured parties that are the victims of the egregious acts of the liable party that caused their injuries. Acts such as drunk driving or excessive speeding are some of the examples that may reach the level of gross negligence. 22 Tips on How to Maximize Your Compensation Now that we know what damages are recoverable under the law, we can now discuss how to maximize your compensation in your personal injury case. 1. Get Medical Treatment Immediately Getting medical treatment immediately after your accident is not only a smart way to avoid bigger problems down the road with your health, but also help with the value of your personal injury case. Insurance companies and juries both will take your case more seriously if you seek immediate medical attention after an accident. In most instances, going to the emergency room immediately after the accident will improve the value of your case. Going by ambulance doesn’t hurt either. Remember, don’t go to the emergency room just because you think it will help your case. Faking your injuries is never a good strategy and will only hurt your case in the long run. If you feel you need emergency medical treatment, then go to the emergency…
How is Pain and Suffering Calculated in Texas: An Overview How is pain and suffering calculated in Texas? How pain and suffering is calculated in a personal injury case will depend on where you are in the timeline of your case. The approach to calculating pain and suffering before a trial and during trial are not the same. Insurance companies typically use claims software to calculate pain and suffering. On the other hand, a jury does not use any special formulas, but only their own best judgment based on the evidence presented to them. However, keep in mind that there are many steps that are required before you go to court for a trial. Many personal injury cases settle even before a lawsuit is filed and most settle before trial. Before a trial you may be negotiating with the insurance company to reach a reasonable settlement amount. Alternatively, if your case goes to trial, your attorney may be arguing your case before a jury or judge. We will discuss how pain and suffering is calculated in both situations, how you can maximize your pain and suffering in both instances, how you can prove pain and suffering in court, and look at some real-world Texas settlements and jury verdicts for examples. But first we need to define some terms to better understand Texas pain and suffering law. What Are Damages? Before we can get into calculating pain and suffering, we need to learn some key legal concepts. In any personal injury case based in “negligence,” you need to prove “damages.” “Damages” are the actual harm or injury as a result of the responsible party’s carelessness. These are not presumed in cases where you are claiming someone else’s negligence caused your injuries. You need to prove them with evidence, such as with medical bills. “Compensatory damages” are those that are meant to compensate you for your losses, intending to place you back where you were prior to the accident. In Texas, there are two types of compensatory damages: Special Damages (economic damages) and General Damages (non-economic damages). What Are Special Damages? Special damages, also known as economic damages, are those that can be easily quantifiable. These damages can be proven by medical bills, pay-stubs, or some other evidence showing out-of-pocket expenses that flowed from the injury. These damages are intended to compensate the claimant for monetary losses that were suffered. Special damages include past and future medical expenses, past lost wages, and future loss of earnings. What Are General Damages? General damages are damages that are not so easy to quantify. They are also meant to compensate the claimant for losses, but for those that are not quantified specifically in a dollar value. Texas Civil Practice and Remedies Code Section 41.001(12) specifically lists what are considered general damages, including: Physical pain and suffering; Mental or emotional pain or anguish; Loss of consortium; Disfigurement; Physical impairment; Loss of companionship and society; Inconvenience; Loss of enjoyment of life; Injury to reputation; and All other nonpecuniary losses of any kind other than exemplary damages. What is “Pain & Suffering”? Now that we know how pain and suffering is categorized under the law, what exactly is pain and suffering, anyhow? Pain and suffering damages are awarded for the purpose of compensating a claimant for the physical pain that he/she endures as a result of an injury. This is distinguished from the mental aspects of an injury, known as “mental or emotional pain or anguish.” Pain and suffering strictly concerns the actual physical pain that an injured party feels from a physical injury. Although pain and suffering and mental or emotional pain or anguish are two distinct types of damages, they are often lumped together when submitted to the jury. However, there are many Texas cases that recognize that these are two distinct elements of a plaintiff’s damages. (See Daniels v. Univ. of Tex. Health Science Center of Tyler, No. 12-03-00399-CV, 2005 WL 1642969, at *2 (Tex. App.—Tyler July 13, 2005, no pet.)(mem. op.). Texas law allows recovery for physical pain and suffering in the past and future (See A.T. & S.F. Ry. Co. v. O’Merry, 727 S.W.2d 596, 599-600 (Tex. App. Houston [1st Dist.] 1987, no writ). As you guessed, quantifying someone’s pain in dollars is difficult. Texas courts have stated that there is no definite way to measure pain and suffering in terms of money but that the jury should arrive at some fair compensation based on its “common knowledge and sense of justice.” Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961). Below, we will discuss how pain and suffering are calculated both pre-trial and during trial. Calculating Pain & Suffering Pre-Trial (Claims Software) Before a trial, either before or after a lawsuit is filed, you will be negotiating your case with the insurance company. The claims adjuster will be valuing your case based on a variety of factors. Typically, the large insurance companies use claims software programs such as Colossus, Mitchell Claim IQ, and Claims Outcome Advisor (COA) to calculate settlement offers, especially on soft tissue injury cases (e.g., whiplash, sprains, and strains). They’ll enter in medical billing codes, injury codes, and several other factors to arrive at a settlement range. Typically, these soft-tissue injury cases are handled by low-level adjusters and these adjusters are prohibited from offering anything outside the claims software settlement range, unless you can present “new” information to them. Insurance companies use this software at a varying degree with some heavily relying on the settlement ranges that are provided, such as Allstate. With more serious injuries, the reliance on this software is not as significant. As discussed above, pain and suffering is part of what are called “general damages” and are considered within the software’s algorithm. The nature of the injury and treatment will have a large effect on the amount of pain and suffering and total general damages that is given in any case. Muscle sprains and strains will yield little pain and suffering compensation. …