Probably the most difficult aspect of any personal injury case is determining the value of the case in settlement. When you are injured as the result of the negligence of another person, such as an automobile accident or a fall or a defective product, you may be entitled to compensation. Under the law of Ohio, compensation is based upon the loss and damages suffered as a result of the carelessness of another person or company.
What losses and damages are you entitled to recover if someone else is at fault? Normally, you are entitled to recover several things. You are entitled to recover your out of pocket expenses. This would include the property damage to your vehicle, for example, if you are in an automobile accident. Towing, storage and loss of use of that vehicle would also be included. Loss of use may not be recovered if the vehicle is a total loss, however. In addition, you can recover the cost of medical bills for treatment for injuries sustained as a result of the accident. This would include past medical bills as well as future medical bills if it is reasonably certain that you will incur future treatment. You could also recover any wages or income that you lost, both past and future, as a result of the incident. A loss in your earning capacity can also be recovered. Any future lost wages must also be reasonably certain to occur.
The out of pocket expenses are often easy to determine because there are bills and estimates that can be reviewed and used by the attorney handling your case. Another element of damage that you are entitled to recover if you are injured is usually the largest element of damage, and that is pain and suffering and your inability to perform your normal activities. These items of damage are also the hardest to evaluate because pain and disability affects each person differently, and there are no books or charts or estimates that can be used to measure pain, suffering or your inability to perform your normal activities.
How does an attorney or an insurance company determine the value of settlement purposes of a personal injury case? The simplest and best answer is experience. An attorney that is experienced in the handling of personal injury cases can draw on a vast reservoir of knowledge and information to properly evaluate a case. There are several factors that must be considered. The first is the nature and severity of the injury. What part of the body was affected and what kind of damage was sustained as a result? Was there a fracture of a bone or was there only bruising of some tissue? How long will this injury affect you and is it permanent in nature?
Another factor is the type of duration of medical care. For example, was surgery required to repair the damage or was there a long period of rehabilitation and physical therapy. Or were you more fortunate and you were able to recover after only a few visits to your family physician and some prescription medication. Often times, the type of duration of medical care is thought to reflect the nature and severity of the injury. In other words, the worse you are injured, the more medical care you will have received. This is not always true, however. In the case of a severely damaged arm, for example, the person may lose that arm and there may be very little medical care necessary because the arm could not be repaired. The dollar amount of the medical care received by this person may be very low, yet the loss of that arm would be devastating to that person. Conversely, a person who sustains a relatively minor muscle sprain or strain may receive a great deal of medical treatment which a jury may find to be excessive in nature. In other words, simply having a large amount of medical bills does not increase the value of a case and, in some instances, may have a negative impact on the outcome.
Other factors typically include the effect on the everyday life and activities of the person, the effect on the ability to work and the time period over which these effects lasted. What could you do before the accident that you can no longer do now or that you can't do as well? Did you miss work and if so, how much? Did you have to go on light duty? All of these factors must be considered when evaluating a personal injury case.
Something that is often overlooked when discussing the value of a case is any prior injuries or medical conditions which a person may have had. For example, did you have complaints of low back pain prior to the automobile accident? Did you have some arthritis? The existence of these prior problems is important to determine whether the injuries sustained in the incident are new injuries or an aggravation of a pre-existing condition.
Often, insurance company lawyers will attempt to persuade a jury that a person who had prior injuries is trying to blame the wrongdoer for those prior injuries and is not entitled to compensation. It is important to consider the prior injury, how that prior injury was sustained, what treatment was had for that prior injury and the effect that prior injury has had on the injured party. In almost all cases, insurance companies are going to be aware of any prior injury, especially if there was a claim made against an insurance company, a lawsuit filed or a worker's compensation claim made as a result. It is best to address these issues head on and to deal with them in an experienced and knowledgeable way.
Other factors that need to be considered are the credibility of the various witnesses involved, the location where the incident took place, the insurance company that is involved on the other side and whether any medical care providers or health insurance companies may have rights of subrogation or claims upon the proceeds of recovery.
Frequently, individuals will hear stories that so-and-so received "x" amount of dollars for their injury, which is the same as mine, so therefore I should receive the same amount as so-and-so. Just as you cannot compare apples to oranges, you cannot compare one personal injury case to another. It is useful to compare similar cases if the facts are very similar and in fact, a good personal injury lawyer will review the verdicts and settlements that are reported through various sources. However, it is just as important to note what facts are different in those cases as to note what facts are similar.
It is only after a thorough review of the facts and law that apply to each case, and an interview with all of the witnesses and a review of the injury and treatment that an honest evaluation can be made. People who give on the spot evaluations, including attorneys, are doing a disservice to the person and are probably giving an inaccurate evaluation. It is important to have a thorough working knowledge of the law as it applies to each case as well as knowledge of the insurance company that is involved in the other side and a good feeling as to what a jury would do should the case have to go to trial if settlement is not possible.
Not every case can or should go to trial, but every case should be prepared and evaluated as if it were going to trial. Only through hard work and experience can the best settlement be made. All of the factors listed above and others must be taken into account and reviewed in detail to ensure the best possible result.