PERSONAL INJURY LAW - WHAT IS IT?

Most people are surprised to learn that for most personal injury cases there is no written Illinois or Federal law that defines a personal injury case or gives the right of an individual to file a personal injury lawsuit. Illinois, along with every other state except Louisiana, is governed by the “common law” of Great Britain that was brought to the United States by our founding fathers. The British common law developed over centuries and is based upon custom and court decisions rather than based upon laws enacted by State or Federal legislatures. When a person or company is “negligent” and that negligence causes personal injury, then the injured person has the right to bring a claim via a lawsuit in the civil courts of Illinois, or under certain circumstances, in Federal Court.

The first step in deciding whether a potential personal injury claim has merit is to determine whether there are facts which support a claim against another individual or company for being negligent in causing the injury – negligence is generally defined as being careless or failing to act in a reasonable manner. It is important to note that negligence also includes evidence of omission so that if a company or individual would have reasonably acted in a certain manner and failed to do so, then that omission which causes injury to another can be the basis for a personal injury lawsuit.

EVIDENCE – “THE UNBROKEN CHAIN”

Judges and lawyers define the specific evidence that is necessary in order to successfully pursue a personal injury case as “elements.” The following elements are necessary in order to produce an “unbroken chain” of evidence to be able to successfully win a personal injury case either by settlement or a trial verdict:

• Another company or individual (called a “party”) must be negligent (called “defendant”)
• The evidence or facts proving the negligence must cause (judges and lawyers use the term “proximate cause”) another person injury
• The person who is injured (called the “plaintiff”) must incur substantial enough economic and non-economic injuries to justify the pursuit of a personal injury case
• Damages – the amount of money to fully and fairly compensate the plaintiff for all past and future injuries and losses

DAMAGES – FOUR TYPES OF RECOVERY

Illinois law allows for four general categories of personal injury losses with the sum total of those losses that are proved by the evidence to equal the final settlement or trial verdict received by the injured plaintiff:

1. Medical expenses: The total amount of the billed medical expenses, regardless of whether insurance pays for those medical bills or only pays a portion of the stated amounts of those medical bills, is recoverable on behalf of the plaintiff. Many people are confused because they have health insurance, Medicare, worker’s compensation benefits, Social Security benefits, Public Aid benefits, or auto medical bill payment coverage and do not realize that it is incumbent upon the injured plaintiff to seek and collect the entire amount of the medical expenses for his or her injuries. Almost all health plans including Medicare and Public Aid have a contractual requirement called “subrogation,” which simply defined, means that a plaintiff who successfully resolves his or her case must reimburse at least a portion of the paid amounts to Medicare, Public Aid, or a private health carrier. The law of subrogation can be very complex and it is necessary for a competent attorney to verify and negotiate the final reimbursement that may be owed to any health provider on behalf of his or her client.

2. Lost income, wages, and employment opportunity: It is obvious that a working person who is injured and is unable to work for a period of time has the right for reimbursement for those lost wages. In addition, if the injured party is able to return to work at a certain point of time but is unable to earn the same income or to do the same job, the law allows for a wage loss differential for the period of time that may exist, including if it is permanent. For individuals who are self-employed or who earn a commission, as long as the evidence supports a lost income or interruption of business service income, then that injured plaintiff has the ability to recover the sum total of those past and future losses.

3. Pain and suffering: Many times pain and suffering is a very large “non-economic” portion of a plaintiff’s personal injury claim. Pain and suffering includes not just severe and acute pain such as a broken bone or laceration, but also lingering pain, numbness, tingling, disfigurement, scarring, emotional injury, depression, change in mood, and inability to interact with others. In effect, any damage to an individual’s ability to live life in the same manner that that individual lived before the occurrence is pain and suffering.

4. Loss of normal life: When an individual is injured, he or she usually cannot participate in life in the same manner as before the occurrence. Any interruption of a person’s ability to do physical activities including housework, outside home maintenance, recreation, volunteer and social activities, and travel, etc., that are interrupted or adversely affected or permanently restricted due to the injuries, are all compensable. Many times loss of normal life is the most significant monetary damage suffered by a personal injury plaintiff.

HOW LONG DO I HAVE TO BE INJURED IN ORDER TO MAKE A CLAIM OR DO I HAVE TO BE PERMANENTLY INJURED?

A person who is a victim of another’s negligence has a right to make a claim for the sum total of any personal injury damages that can be proven by the evidence for any period of time, including a matter of days, weeks, months, or for the remainder of life. Generally speaking, most physicians usually wait at least a year after the occurrence in order to determine whether a particular individual is going to suffer from permanent injuries. If a plaintiff has permanent injuries, then the law does not allow the person to wait forever to bring a case or to continue to seek compensation for the remainder of his or her life; rather, expert and medical testimony will be required to give percentages of probability in the future of the effect of those permanent injuries. Generally, judges allow the United States Census Life Tables which include average life expectancy of a particular individual at a particular age, to be admitted into evidence to help determine how long a person may suffer permanent injuries in the future.

WHAT IF THE NEGLIGENT DEFENDANT IS ONLY PARTIALLY AT FAULT OR WHAT IF I AM ALSO AT FAULT - CAN I MAKE A CLAIM?

The common law does evolve over time and approximately 30 years ago, Illinois courts allowed an injured party to pursue a personal injury claim even if the injured party is partially at fault. A jury or judge will make a decision by a verdict at the end of the case to assess a percentage of fault to be placed upon the plaintiff, the defendant, or multiple defendants. As long as the plaintiff is found to be less than 50% liable for his or her own injuries, he or she has a right to successfully seek recovery; but, that recovery will be reduced by whatever percentage of fault of the individual plaintiff. For example, if a jury found that the sum total of a plaintiff’s damages is $100,000.00 but the individual is 40% at fault, then the net verdict would be $60,000.00 and that would be the amount recovered by the plaintiff.

If the plaintiff is found to be over 50% at fault regardless of whether it is 51% or 99%, the plaintiff is barred from any recovery and a jury verdict would be entered as a verdict on behalf of the defendant with no money being paid to the plaintiff.

TIME – HOW LONG DOES A CASE TAKE?

Some people are surprised to learn that our civil justice system in the State of Illinois if very efficient. For instance, the Lake County Circuit Court processes personal injury cases on the fastest and most voluminous basis per judge out of the 102 counties in the State of Illinois. That being stated, any “delay” that is perceived by a plaintiff in his or her case is usually not due to the legal system, but is most likely due to the fact that it takes time for an injured party to heal and for there to be sufficient time for physicians, experts, economists, and wage loss experts to be able to verify with sufficient legal certainty all past and future personal injury damages.

In Lake County, Illinois, the average case is resolved approximately 13 months after filing (that is not the date of the occurrence). But that figure is somewhat misleading, while many cases are resolved in shorter or longer than 13 months, it is typical for the more complex cases, including medical malpractice, wrongful death, products liability, and major injury cases, to be resolved by trial or settlement generally within 18 months to 30 months after the date of filing.

TRIAL – IF I HIRE A LAWYER AND MAKE A PERSONAL INJURY CLAIM, DOESN’T THAT MEAN THAT I HAVE TO GO TO TRIAL BECAUSE I HAVE “FILED A LAWSUIT.”

The answer is simply no. Virtually all personal injury cases that involve significant damages are filed lawsuits. The most effective way for a plaintiff to maximize his or her recovery within the reasonable range of damages based upon the unique circumstances and evidence of each case, is to file a lawsuit so that formal legal discovery, including securing of documents, issuing of subpoenas, taking of depositions, and identification of medical physicians and experts, is all completed. Well over 90% of all personal injury cases are resolved without an ultimate trial.

ATTORNEY – DO I REALLY NEED ONE OR CAN I SAVE MYSELF SOME MONEY AND HANDLE THE CASE DIRECTLY WITH THE DEFENDANT’S INSURANCE COMPANY?

There is no requirement that you have an attorney when you are dealing with an insurance company, but it is very difficult, if not impossible, to obtain full value for your claim unless your injury is very minor. Typically, if a case has a value of at least $10,000.00 or more, it is reasonable to contact a personal injury specialty attorney to have a meeting and discuss the pros and cons of formally pursuing an attorney/client relationship and to formally file a lawsuit. Typically, the defendant’s insurance company will have already conducted an investigation, and the insurance claims adjuster will already have obtained medical records and can use various items from those records against an unrepresented individual. Insurance companies are not obligated to look after the rights or best interests of an injured party. Claims adjusters are highly trained individuals whose job is to resolve cases in the most financially beneficial way for the insurance company which means the least amount of payment to an injured party.

MEDICAL MALPRACTICE, PRODUCTS LIABILITY, AND OTHER COMPLEX PERSONAL INJURY CASES – I CAN’T AFFORD TO FINANCE THESE CASES, HOW DO I FIND A LAWYER?

Most personal injury specialty attorneys do not charge any attorney fees or request any retainer from an injured individual, but rather work on a “contingency fee” basis, plus reimbursement of case costs when a case is ultimately successfully resolved. At the turn of the 20th Century, the United States developed a unique system of law called the contingency fee system which allows any individual, regardless of income or wealth, to be able to hire an attorney and pursue a meritorious personal injury claim. The attorney knows upfront that he will not be paid a retainer or any funds from the individual, and the individual also knows that there will not be any financial obligation in pursuing a claim. In return, while the attorney also takes the risk on the case, the personal injury specialist fully accepts that upon successful completion of the case that the attorney will be paid a percentage of the total amount recovered, plus reimbursement of those costs, even if the case takes many years. Though there is no set contingency fee amount and “price fixing” is against the law, the majority of personal injury specialty attorneys in northern Illinois are paid a one-third contingency fee plus reimbursement of costs for accepting a case.

In addition to allowing any individual with a meritorious case to have equal access to justice, the contingency fee system is also a highly efficient system of screening and weeding-out cases that should not be pursued. Obviously, an attorney will only be paid when his client receives a successful result, and will not waste time or accept a case that does not have a substantial probability or likelihood of being successfully resolved. For instance, in my office, well over 60% of all of the cases that we review we do not accept. By being selective, a personal injury specialist tries to manage his time and resources to most effectively represent each individual client, and also ensure that only meritorious claims are brought into our legal system.

TAXATION – IS THE AMOUNT OF MONEY RECEIVED BY ME, THE CLIENT, SUBJECT TO STATE OR FEDERAL TAXES?

While I am not competent to give tax advice, the IRS has verified that in general, funds received from personal injury cases by an individual are not taxable, even if those funds may include some reimbursement for past or future lost wages. There are exceptions for punitive damages, civil rights cases, and other specialty personal injury cases, so every individual should seek competent legal, tax, and financial advice before determining whether his or her particular personal injury proceeds are taxable or non-taxable.