Determining the value of any personal injury, wrongful death or medical malpractice case is both an art and a science.
The science in determining the value of a claim is making sure that all of the necessary facts and figures are gathered and put together in a complete package that answers all of the needed questions. The art of the process is in being able to present this information in a manner that persuasively convinces the reader of the significance of the injuries and great value that they carry.
Because there is no mathematical formula that can be used to put a value on a case, it is very important that you have an experienced attorney utilize their knowledge, experience and visceral feel for determining the value of your case.
It should be stressed that no case should be settled until such time as the injured party has reached maximum medical improvement, that is, until that person has reached a point where his or her medical condition can no longer improve which means that their situation is stationary and permanent.
If the person’s medical condition is subject to change, has not stabilized and will continue to improve, then settlement discussions should not be started. The only exception to this situation is when there is not enough insurance coverage to compensate the individual for the damages suffered to date and there is no other hope of recovering any other funds.
For example, if a person is involved in a motor vehicle accident which is caused by the fault of another who has $20,000.00 of total insurance coverage available and the at fault party does not have any assets and no other means of paying any judgment, the injured party might settle with the at fault party while still treating, by taking the $20,000.00 worth of insurance coverage, prior to reaching maximum medical improvement even if the injured party’s case is worth more than $20,000.00
Once you have reached maximum medical improvement, an experienced attorney can begin to assess the value of your case.
The first major issue that must be evaluated is the strength of your case based upon liability. In other words, a determination must be made as to who is at fault. In many instances, the question of who is at fault is a relatively easy question to answer while in other cases this issue becomes much more complicated. In a typical case, an injured party must prove that their injuries were caused by the fault of another.
In a number of states, an injured party may pursue a claim even if he/she is partly responsible for the injuries sustained due to the doctrine of comparative negligence. In those instances, an injured party will have his/her award reduced by the amount of fault assessed against them. For example, if the injured party is found to be 20% responsible for his/her injuries and a jury found the case to have a value of $100,000.00, the injured party’s award would be reduced by his/her comparative fault (20%) which would result in an award to the injured party of $80,000.00 ($100,000.00 less at fault percentage $20,000.00 [20% of 100,000.00]).
Some states follow the doctrine of contributory negligence which holds if the injured party is in any way at fault then there is no recovery whatsoever and still other jurisdictions follow a modified comparative negligence standard.
In still other cases, fault is assessed on public policy reasons, which results in a finding of strict liability. In other words, certain states hold that a person or company is automatically liable for the injured party’s injuries. In certain states, the owner of a dog is strictly liable for the injuries suffered by a person who is bitten by their dog. In other instances, the manufacturers of certain products may be strictly liable for injuries caused by their use.
The second major issue that must be analyzed is that of damages. There are essentially two types of damages that are recoverable in a negligence action: economic damages; and non-economic damages.
Economic damages are damages that are intended to cover injuries for which an exact dollar amount can be calculated. Economic damages could include:
1. Medical expenses which have been incurred to date along with the future medical expenses which will likely be incurred as a result of the injury;
2. Lost wages or loss of income which have been incurred to date as well as the loss of the ability to earn the same or more income in the future that will likely result from the injury sustained;
3. The cost of past and future special services and/or medical devices to assist with activities which were previously performed by the injured party;
4. The cost of any type of vocational or other type of training which might be reasonable to retrain or assist the injured party who has a permanent disability; and
5. All reasonable out of pocket expenses.
Non-economic damages are intended to cover injuries for which an exact dollar amount cannot be calculated. Non-economic damages could include compensation for:
1. Pain and suffering to date as well as future pain and suffering;
2. Loss of life’s enjoyment of activities normally experienced by the injured party;
3. Emotional distress; and
4. Loss of companionship by a love one (generally a separate claim available to a spouse).
The determination of economic damages is generally a science. Medical expenses can be obtained from the health care providers (doctors, hospitals, therapists, etc.). Future medical expenses can be addressed by the injured party’s treating physician or other medical experts.
Past lost wages or loss of income can generally be calculated from tax returns or pay stubs. Future loss of income is usually determined by an economist and/or vocational rehabilitation expert. All out of pocket expenses can be calculated and documented by the injured party.
The determination of a person’s non-economic damages is generally an art. There is no formula, magic or other way to calculate the loss of function of a certain body part or the permanent injury to a person’s body or the value of the loss of one’s enjoyment of life.
An experienced layer will know through personal experience and jury verdict research what juries have awarded in similar cases which help them arrive at a range of values for a particular case.
To further complicate matters the value of an injured person’s case can also be influenced by any one or more of the following factors and/or considerations:
- The age of both the injured party and the at fault party;
- The likeable qualities of both the injured party and the at fault party which includes the impression each party might have on a jury;
- The experience and skill of each party’s lawyer and their ability to influence the jury to side with their particular client;
- The willingness of the injured party to go to trial;
- The willingness of the injured party’s lawyer to go to trial;
- The willingness of the at fault party’s lawyer to go to trial;
- The cost to defend the case;
- The cost of prosecuting the case;
- The experience, skill and history of the trial judge;
- How quickly it will take the case to come to trial;
- The available insurance limits and any risk that there may be a verdict in excess of the available coverage;
- The assets of the at fault party;
- The injured party’s life expectancy and unrelated conditions which might shorten the injured party’s life;
- The chance of the injured party being awarded punitive damages from the at fault party;
- How badly the injured party needs the money;
- The assessment of the injured party’s treating physicians;
- The assessment of the injured party’s expert witnesses;
- The assessment of the at fault party’s expert witnesses;
- The strength of the claims for future damages;
- The probability of success for future medical treatments for the injured party;
- Any claimed lien amounts on the file by any health care professionals, insurance companies or other parties;
- The nature and extent of any scarring or deformity;
- The sex of the injured party;
- The extent of any pre-existing conditions;
- Any statutory caps for damages; and
- The law of that particular jurisdiction.
The above factors are just some of the other considerations which make the evaluation of a case an art The ability to know what information to look for, how to evaluate it and how to present it makes the proper evaluation of a case a very difficult undertaking.
An experienced lawyer will be able to gather all of the needed information, properly weigh each piece of information, and will then be able to persuasively present it to the insurance adjuster, judge or jury to maximize the amount of money an injured party can receive.
The above information is only a brief summary of some of the basic items which should be addressed in a personal injury case. There are a great number of other instructions which should be followed in such a case. Not knowing your rights or proceeding without the proper representation could severely prejudice your case.
George Miller is an experienced legal writer and presently looks after content management for
SelectCounsel.com
