Personal Injury Compensation - South Bend, Indiana
This is an excerpt from Cloutier Law Offices’ Client’s Guide to Your Personal Injury Case ©2016, 2008, 2004. The Client Guide was prepared exclusively for our clients, and discusses in detail many aspects of how a personal injury case works. Each of our clients receives the full Client’s Guide at the beginning of our work on the client’s case.
The following information is general information that applies to many, but not all cases, under Indiana law. Other laws may apply to specific cases, and most laws have exceptions. This information is not a substitute for proper legal advice specific to your situation. If you need information specific to your case, consult a competent attorney, or click here to request a free consultation.
Because this is excerpted from our Client Guide it refers to “you” – meaning our client who is given the Client Guide. Of course, the information only applies to clients of Cloutier Law Offices, P.C.
How long does it take and how does it work?
Evidence and witnesses: what you need to know and do
Your medical care and providers
Paying medical bills: your medical bills, insurance, and “subrogation”
What determines if I win or lose, and how much money?: basics of personal injury law
1. LEGAL DEADLINES
Most people have heard of the term “statute of limitations” which refers, generally, to the amount of time a person has to file a particular kind of case. But there are other laws that create legal “deadlines” by which certain actions must be taken.
The laws governing deadlines for taking action can be very complex and can depend on the specific facts of a case. You may have heard that, very generally speaking, under Indiana law pertaining to personal injury cases, a person has two years from the time he or she was injured to file suit, which even where that rule applies, makes the deadline the day before the two-year anniversary. (Other states and other kinds of cases have different rules.) But this is not even close to the full story. There are numerous laws and exceptions to laws that govern legal deadlines. Many of these can shorten the time in which you must take action to preserve your rights. Here are just three examples to illustrate the complexity and the different rules that can apply.
First, if your case involves an injury claim against one or more Indiana governmental entities(and note that governmental entities include but are not limited to the State, any County, City, or Township, police and sheriff departments, some hospitals and other medical providers, any public school corporation, and many entities like airport authorities, TRANSPO, the NICTD-South Shore Railroad, and state universities). In these cases, the law requires a specific procedure (properly filing a Notice of Tort Claim with the proper entity by certified mail) within as little as 180 days after the incident. (180 days for a political subdivision; 270 days for the State or an agency thereof). Because of the complexity of filing a notice of tort claim, and the difficulty in many cases of determining which governmental entities may be involved, it is best to try to retain an attorney to represent you and file the notice.
Second, in some cases, your time limits begin to run even before you were injured. For example, for most products liability cases (injuries caused by a dangerous or defective product) a law called a statute of repose usually applies, which limits your time to take action based on the date the product was manufactured. Because of this, it is entirely possible that you could suffer an injury and have only a few days (or even less) to take legal action.
Third, there are also many laws which extend the time to take action. Examples of these include some cases involving injuries to children, and some (though very rare) cases where a person was injured but did not know or “discover” the harm until later. (This is why, while it is important to seek legal advice quickly, it is also not wise to assume a deadline has already passed without seeking proper legal advice.)
So what should an injured person, or a person who has lost a loved one, do? The best answer is to seek legal advice quickly. A lawyer cannot always determine immediately what deadlines may apply, but in most cases, you can get a good idea of how long you have to take action. We often cannot provide specific information on legal deadlines to every person who calls or contacts our office, but when we do agree to provide free consultation, we can usually identify the applicable deadlines and at least provide some information on what deadlines may apply. As noted above, it is also important to not assume, without proper legal advice, that you are too late to pursue a case, because an exception to the normal deadlines may apply.
Another important thing about legal deadlines is to be careful who you listen to for advice. Our office has received numerous calls over the years from people who spoke to a friend or neighbor who tried to be helpful by providing advice like “I was in a car accident and I pursued a case, and I know you have two years.” Very often, that advice was completely wrong. Many times, we were able to catch the problem in time, but in some cases, the person was too late to pursue a case because they relied on wrong information from a person not qualified to analyze the complex issues involved in legal deadlines.
Finally, getting legal advice quickly is important not just because of legal deadlines, but also because, in some cases, important evidence or testimony needed to prove your case can be lost. As just one example, people injured by a defective product sometimes return the product to the store before contacting a lawyer. In those cases, it can often be impossible to prove the case because the returned product is destroyed or lost by the store.
For all these reasons, the best course of action is simple: you should waste no time in finding legal representation or at least legal advice as to your options and potential deadlines. Failure to do so can result in forever losing the right to recover damages.
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2. HOW LONG DOES IT TAKE AND HOW DOES IT WORK?
Understandably, clients often want to know how long it will take to conclude their cases. Unfortunately, there is wide variation in how quickly cases can be resolved. We can tell you that it is usually not possible to settle a case in less than about four to six months, and that except in especially complex cases, it is rare for a case to last longer than about two to three years.
To estimate how long a particular case will take, the specific facts of the case are necessary. Although each case is different, in general this is a basic overview of what you can expect in terms of timeline and procedure.
First, immediately or very shortly after you retain the Firm, we will begin the process of notifying the defendant, the defendant’s insurance company, your auto insurance company if your case involves an auto accident, and usually your health insurance company. We will also start gathering basic information about your case. This may include visiting the scene of the incident (and often photographing it or taking measurements), interviewing witnesses, and doing factual, legal, and medical research as needed. We will focus especially on the more challenging or difficult issues in your case.
Meanwhile, we have each client complete a Client Information Questionnaire. Once we receive the questionnaire, it will take several weeks (sometimes, two or three months) to gather the necessary medical records and other information to proceed with your case. After that, and depending on whether you are still undergoing medical treatment, we will discuss with you whether it is appropriate to try to settle the case before suit is filed, or whether to proceed with filing a lawsuit (“suit”) in court. (In some cases, such as when an applicable deadline to file suit is approaching, suit will have to be filed sooner.)
If you and the Firm decide to try to settle before a lawsuit is filed, once we have enough information, we conduct our evaluation and advise you as to what the likely range of jury verdicts is for your case. (This process is very involved and very critical to the outcome of your case, and you will have to make decisions about settlement. A detailed section in our Client Guide provides detailed information about that process.) Then you will decide what the minimum amount of money in net recovery to you (the amount you have after all attorney fees, expenses, and bills are paid) you are willing to settle the case for. Based on that number, we will discuss a higher amount of money to demand from the insurance company or defendant. (A demand is an offer to settle the case for a certain amount.) A detailed and formal demand document and supporting materials will then be prepared and sent to the insurance company or defendant. Usually, after about 30-60 days there will likely be a response, or offer, from the defendant. (Sometimes, the defendant or insurance company will make no offer, which is usually called denying the claim.) Once an offer is received, we will notify you promptly, and negotiation, the back and forth process of making offers and counteroffers, will begin. Negotiations can take anywhere from only a day or two to a few weeks, and will continue until the case is settled or it becomes clear that the case cannot be settled. While every case is different, as a general rule, around half of all cases are settled before suit is filed.
If the case cannot be settled before a lawsuit is filed, we will have to next take that step. Filing a lawsuit does not mean the case will proceed to a trial. In fact, the majority of cases in which a lawsuit is filed are settled before the trial. If a lawsuit is filed (either because the case cannot be settled, or if because of the applicable deadlines suit has to be filed sooner) we will file a Complaint and Summons with the Court in the applicable county as required by the procedural rules. You are named as the plaintiff (the person asking for payment for injury) and the person(s) responsible for your injury are named as the defendant(s). (Usually, but not always, suit is filed in the County where the incident occurred. Some cases have to be filed in Federal Court.) About 20 to 50 days after the complaint is filed, the defendant(s) will have attorney(s) appear and file an answer to the complaint. After a lawsuit has been filed in court, the case is said to be in “litigation.”
People often ask “How much do we (did we) sue for?” In Indiana and in most federal court cases, the complaint does not state a specific dollar amount. The complaint simply asks the court to enter judgment for the maximum dollar amount of damages the law permits (and the jury finds).
Sometimes there are various motions filed after the complaint and answer. These range all the way from very routine motions to motions that could end your case. For instance, a motion for summary judgment may be filed, which is where one side tries to convince the Court that the other side cannot possibly win the whole case or some part of it, and that the Judge should therefore decide the issue instead of submitting it to a jury.
Next, the sometimes lengthy process called discovery begins. Discovery is the process that allows each side to learn (discover) what witnesses, evidence, and arguments the other side will make if the case proceeds to trial. Discovery is accomplished by several different methods. One method is written questions and requests for documents(called interrogatories and requests for production of documents) that the parties exchange, which each party has to answer under oath with the assistance of the person’s attorney. (The need to answer these written questions within a time deadline is one reason we need you to complete the Client Information Questionnaire. It allows us to draft the answers, then schedule a meeting with you to review and sign the answers.) Of course, we also send detailed written discovery requests to the defendant(s) on your behalf, and the answers help shape strategy for settlement or trial.
Another method of discovery is depositions. These usually occur after written discovery. At a deposition, a court reporter is present, and the party or witness is asked questions under oath by the attorneys. Depositions may be taken of you, the defendant(s), and other witnesses. Depositions may also be taken of some or all of your health care providers. Each side may also use expert witnesses (such as your doctors or a doctor hired by the defendant who disagrees with your doctor about your injuries or their cause), and depositions will probably be taken of those witnesses.
A method of discovery used in some cases is an independent medical examination. This procedure allows the defense to require you to be seen by a physician other than your own treating physicians. If the defense proposes a biased or unfair physician, we can object and the Court will have to decide whether you can be required to see the physician. An independent medical examination is not necessarily a bad thing: often the independent examiner will agree with your physician about you injuries and condition, which will help your case.
This discovery process normally takes at least six months, and sometimes takes much longer.(In very large or complicated cases, it can take as much as two years or more.) As the process continues, we will try to obtain a trial date and deadlines for completion of discovery from the Court. Meanwhile, during the discovery process settlement negotiations can continue, sometimes through mediation, a formal settlement conference which you attend along with a Mediator and all the attorneys in the case.
Most cases are resolved at some point before trial. Indeed, less than 5% of our cases proceed all the way to a jury trial. Normally, a trial will be scheduled sometime between nine months and eighteen months after the lawsuit is filed, but occasionally it can be even longer. The court does not schedule the case for trial until at least a few months’ worth of discovery has already been done. Then, the court holds a pretrial scheduling conference, and sets a trial date which depends on the Court’s calendar and on the availability of all the attorneys involved in the trial. A trial normally lasts between three and five days, but can last even longer if the case is very complex. If your case proceeds to jury trial, we will have plenty of time to discuss the specifics of trial with you.
|GROSS RECOVERY FROM SETTLEMENT
**SAMPLE ONLY, NOT RELATED TO YOUR CASE**
|ATTORNEY FEE PERCENTAGE FROM CONTRACT (DECIMAL)||0.3333|
|LESS: ATTORNEY FEES AT PERCENTAGE (LINE ABOVE)||$33,333.00|
|LESS: REIMBURSEMENT OF CLIENT EXPENSES (SEE ATTACHED)||$900.00|
|GROSS RECOVERY FROM SETTLEMENT
**SAMPLE ONLY, NOT RELATED TO YOUR CASE**
|LESS: SUBROGATION REPAYMENT(S) TO:
BLUE CROSS BLUE SHIELD (HEALTH INSURANCE)
(50% OF $12,000 GROSS LIEN REDUCED BY AGREEMENT)
|LESS: PAYMENT OF OUTSTANDING MEDICAL BILLS TO: DR. J. JONES, M.D.||$400.00|
|NET RECOVERY TO CLIENT(S)
**SAMPLE ONLY, NOT RELATED TO YOUR CASE**
Fortunately, of the cases that proceed to trial, only a small percentage are appealed after the jury verdict. (In some cases, the appeal can be from a ruling of the judge before trial, and the case can proceed to appeal before the trial takes place.) Contrary to what you may have heard, a party cannot appeal just because the party does not like the outcome. There must be a legal reason to appeal a verdict. Either party can appeal, even the winning party. Unfortunately, appeals do take a long time. If your case involves an appeal, we will discuss that in more detail with you then.
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One of the bedrock principles of our civil litigation system is that neither side is allowed to hide or conceal evidence or witnesses to “surprise” the other side at trial. (Movies, television shows, and novels about trials usually have dramatic surprise witnesses and evidence. This is definitely not how real litigation works.) Preventing surprise is exactly what the discovery process discussed above is designed to do. That means we have to disclose to the other side in litigation what evidence and witnesses we intend to use at trial well before the trial. Because we do not know now whether your case will proceed to litigation or even trial, we need to take the right steps to disclose and preserve evidence from the very beginning of your case. Moreover, the Firm needs to know and have all available evidence and information to help get the best possible result in your case, even if it is settled before litigation or trial. Most importantly, if you do not tell us about witnesses or evidence you know about related to your case, we cannot properly disclose the information to the other side. This can harm your case, and can even result in the court refusing to allow us to use the evidence or witnesses at trial.
The Client Information Questionnaire you will be completing is the primary way for you to tell us about evidence and witnesses concerning your case. However, if any item is not addressed in the questionnaire, or if at a later date you remember or learn of evidence or witnesses, it is important that you let us know immediately. What follows is a brief discussion of some important points about these issues.
It is very important that you keep and preserve any kind of physical item or evidence which might be useful in any way in presenting your case to a jury. (Let us know in your Client Information Questionnaire if there are any such items now. Some items you will want to periodically provide us with or hold for possible later use.) Never destroy any evidence or documents related to your case without asking us. Some examples of items of evidence are:
- If your case involves a motor vehicle accident: your vehicle itself, any broken off pieces or debris, any repair estimates, and any photos or video of your vehicle (if you have access to your vehicle, you should let us know so you or we can photograph it)
- any evidence of the incident itself or its aftermath, such as any piece of physical evidence, broken or damaged glasses, damaged or stained clothing, or damaged personal property
- If your case involves a motor vehicle accident: your vehicle itself, any broken off pieces or debris, any repair estimates, and any photos or video of your vehicle (if you have access to your vehicle, you should let us know so you or we can photograph it)
- Any evidence of the incident itself or its aftermath, such as any piece of physical evidence, broken or damaged glasses, damaged or stained clothing, or damaged personal property
- If your case involves any kind of slip and fall or trip and fall, the shoes you were wearing and anything you were carrying at the time of the incident
- Any orthopedic or other medical devices or artifacts(crutches/cane/walker, orthopedic hardware, heating pad, neck brace, bandages, broken teeth or dentures, etc.)
- If you were treated at or admitted to a hospital, your hospital discharge instructions, and your hospital identification bracelet or badge (if applicable)
- Any empty medication bottles, whether over-the-counter or prescription (please save these as you use them and make sure you get them to us either all at once or periodically – such evidence can be extremely helpful to illustrate to a jury what you have been through, and is much more persuasive than a document listing all your prescriptions)
- All medical records and bills you receive (because we request medical records and bills from the providers you identify for us, you do not have to send medical records or bills to us, but you should save them in case they are needed later. It is very important that you give us the names of all providers (doctors, hospitals, x-ray or MMRIfacilities, therapists, pharmacies, medical suppliers, etc.) Who have treated you or provided you with services or supplies.)
- Any photos, videotapes, sound recordings, or other such evidence
- Pay stubs or statements showing any lost income
- If you have any cuts, scars, bruises, swollen or discolored body parts from the incident, it is very important you let us know immediately so we can make sure that the condition is photographed or documented.
- If you have any speech difficulty, trouble walking, body part that is making any clicking, popping, or similar noise, please let us know that as well so we can make a sound or video recording to document the condition
- Documentation of any unusual expenses or bills you incur (such as rental cars, special transportation to your doctors, people you have to pay to do housework or yardwork, etc.).
- Any other document or thing related to your case
In your Client Information Questionnaire, you will see a few questions asking you to identify witnesses. People sometimes mistakenly think “witnesses” means only people who saw or witnessed the incident. Actually, witnesses means anyone who has any knowledge or information relevant to your case, including the way your injuries have affected you. (People who saw the incident that your case is about are called “eyewitnesses” or “occurrence witnesses.” That is only one category of witnesses.) It is important that you let us know (and that we disclose to the other side) all witnesses who may have any relevant information. That includes people whose names you do not know, but who you can provide some information about (for example: “a man who said he was an off-duty South Bend fireman and was driving a red pickup truck”). Examples of types of witnesses are:
- Eye witnesses to the incident itself
- People who know something about conditions or events before the incident (for example, people you know who walked on a slippery sidewalk before you fell there) and people who were present after the incident, such as passersby who came to assist you
- Family members, people who live with you, or other friends or relatives you have close relationships with
- People who had contact with you at any time when you were visibly in pain or suffering from or showing any signs of injury, and people who provided any help to you because of your injuries, such as people who helped you with house or yard work, grocery shopping, etc.
- People who are familiar with the differences in your level of activities before and after your injury, which may include people involved in sports, church groups, clubs, or activities in which you participate
- Co-workers, supervisors, payroll persons, and others who have knowledge about your work and any time or income you lost from work
- Your medical doctors and other medical care providers (but note that we will, of course, obtain your medical records, so it is only necessary that you tell us in your questionnaire – and afterward if new information develops – the places or facilities where you received medical care)
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Of course, your health is more important than money, so the most important thing about the medical care you receive for your injuries is getting better as quickly as possible. But it is also true that the information in your medical records and the testimony provided by your healthcare providers is one of the most important parts of your case. Negative things in your medical records or negative testimony by your providers can ruin your case or make a bad result more likely. To help prevent this, there are two key areas for you to pay attention to.
First, while you are being treated for your injuries, it is important that you keep us informed of your progress, any tests or other providers you are sent to, and any information you get about your diagnosis or prognosis.
Second, it is vital that you cooperate with and maintain a positive relationship with your health care providers (doctors, nurses, therapists, and all others). Here are some very important specific guidelines to follow:
- You must do your very best to keep all appointments with your healthcare providers and follow their instructions completely. If you are instructed to take medications, do treatments or exercises, or avoid certain activities, follow the advice. Failure to do your best to recover from your injuries and cooperate with healthcare providers gives the defendant in your case a legal defense called failure to mitigate (meaning lessen the severity of) damages. It will also make the providers more likely to note in your chart and testify that you were uncooperative and unwilling to do your part to get better. This is absolutely devastating to a case.
- Always give honest, accurate, and detailed information to your healthcare providers about your medical history, your symptoms and condition, and your progress in treatment. Never exaggerate your symptoms or conditions, but also never understate or downplay them. Let the providers know what causes your good days, your bad days, your difficulties, and your pain. Do not tell your doctor or other health care providers you are doing much better if, in fact, you are not. But also do not tell them you are worse than you really are. Keep your healthcare providers informed about how your injury affects your work, your leisure activities, your emotional well being, and your relationship with your spouse and family.
- If you had any previous injury to the same area of your body or experienced similar symptoms before the incident, be sure to inform us and inform your healthcare providers if they ask. If you try to hide or inaccurately downplay a prior condition, you will appear to be dishonest, and nothing will harm your case more than that perception. Of course, if you had not experienced symptoms for some time prior to the incident, or if your condition after the incident is worse than before, tell your healthcare providers that too. Include any information about how the present injury or symptoms differ or are more severe than before.
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5. PAYING MEDICAL BILLS: YOUR MEDICAL BILLS, INSURANCE, AND “SUBROGATION”
Often, one of the most stressful parts of being in a personal injury case is trying to keep up with paying the medical bills and navigating through the problems of dealing with insurance issues. Our primary responsibility is to achieve a favorable outcome in your case, and it is not in your best interests to have us spend time dealing with medical billing issues (especially if they involve relatively small amounts of money) when we could better use that time getting your case resolved. However, we can assist in some ways, and we can help you understand how the various parts of the system work.
Clients often ask us: “If someone else caused the incident that resulted in my injuries, does that person or company (or the insurance company) have to pay my medical bills as I incur them?” Unfortunately, the answer is usually NO. Until the defendant or insurance company has been determined to be at fault and the bills are determined to be necessary and related to the incident, the defendant and the defendant’s insurance company have no obligation to pay medical bills, and normally will not. That means unless or until your case is settled or you prevail at trial, you have to use your own insurance or funds to pay the bills, or use one of the methods discussed below.
b. Medical Payments (“Med-Pay”) Insurance
In some cases, you may be covered under an insurance policy that affords Medical Payments Coverage. This kind of insurance (called “Med-Pay”) may or may not be available, depending on the circumstances. Med-Pay is a form of “no-fault” insurance, meaning it provides coverage whether or not you or someone else was at fault in causing the incident. If your case involves an auto accident, either your own auto insurance or the policy covering the vehicle you were in may provide this coverage. (In Indiana, Med-Pay is optional coverage, which means it may not be in any policy involved in the case. If you live in Michigan or another “no-fault” state, your auto insurance policy is required to have similar coverage, called “PIP” coverage.) Another way Med-Pay coverage may apply is if you were injured on someone’s premises, or property, such as in a slip-and-fall or trip-and-fall case. If the landowner has such coverage, you are entitled to it without regard to fault. We can and will help you determine if you are covered under any policy that includes Med-Pay. If our efforts lead to your recovering Med-Pay benefits, the amounts paid are subject to attorney’s fees, though often we will reduce or waive them. The Med-Pay benefits you can recover are limited to the coverage amount, which can be as little as $500 or as much as $100,000, though usually it is either $1,000, $5,000, or $10,000.
If you have Med-Pay coverage available, you may be able to use this insurance in two different ways. One way is to use the Med-Pay to pay all the bills you incur until the coverage limits are used up. Of course, if you have no other health insurance or other way to pay the bills, this is your only option. If that is the case, and your bills exceed the Med-Pay limits, you can and should “spread around” the payments among the providers to help keep them from trying to collect while your case proceeds. If you have Med-Pay coverage available, and also have health insurance, Medicare, or Medicaid, it is generally better to first “use up” the Med-Pay coverage before turning to these other options. But sometimes, you have another option: using your health insurance to pay the insurance plan’s share of your bills, and then using the Med-Pay coverage to cover your deductibles or co-pays. We can help you decide which is in your best interests.
c. Health Insurance, Medicare, and Medicaid
After any “Med-Pay” insurance has been exhausted (or simultaneously, if you are using the Med-Pay coverage for deductibles or co-pays), if you have health insurance, or are covered by Medicaid or Medicare, you should generally submit the bills and pay your share (deductible or copay) as you would any other medical bill. Usually, you will not have any problem doing so. If you do have difficulty with your health insurer, Medicare, or Medicaid, please remember that our primary responsibility is to achieve a favorable outcome in your case, and the Firm does not have the expertise in the area of litigating health coverage issues with your insurer. However, we can assist in some ways. We can write your health insurer and demand payment or, if necessary, refer you to an attorney who specializes in health insurance issues. If your health insurance, Medicare, or Medicaid does not cover certain bills, or if you have deductibles or co-payments you cannot afford, see subsection e below.
d. Worker’s Compensation Coverage
If your injury took place while you were in the course and scope of your employment, you should, if you have not already done so, commence a worker’s compensation claim. (The Firm can refer you to an attorney who handles worker’s compensation cases if you need one.) Worker’s Compensation law generally provides for coverage for medical bills, lost wages, and sometimes permanent disability or impairment. When this applies, the case the Firm represents you for is a separate case (sometimes called in worker’s compensation circles a “third party case”) and your employer or its worker’s compensation insurance company has the right to subrogation. (See subsection f below.)
e. Payment Plans and Promises to Protect Account (“Letters of Protection”)
If you have no health insurance or other coverage, and/or if your share of your medical bills is too much for you to afford to be able to make sufficient payments on, let us know as soon as possible. In some cases, we can offer the health care provider a promise to protect account(sometimes called a “letter of protection.”) A promise to protect account is an agreement between you, the Firm, and the healthcare provider. In it, you and the Firm promise that if and when you recover money by settlement or trial, the Firm will pay the medical bill directly out of the funds you recover, instead of turning the money over to you to pay the bill. (The healthcare providers thus have a better guarantee that the bill will be paid.) In exchange, the provider agrees not to pursue collection efforts while the case is pending – in other words, the provider will await payment. This does not mean you do not have to pay the bill if you do not win or settle your case. If that happens, the provider can start trying to collect the bill.
If the provider will not agree to a letter of protection and you cannot afford to pay the bill, you should contact the provider and try to set up a payment plan of monthly payments you can reasonably afford. Before you agree to a payment plan, you should carefully consider two things. First, never agree to a plan you cannot afford. That means if there are more than one provider you owe money to, you have to create a budget to make payments to all the providers. Second, whatever the payment plan is, always be sure to make regular, timely payments. Providers or their collection agencies are much more likely to work with you if you stick to the payment plan.
f. “Subrogation” and “Lien” Repayments
If you settle or win your case, any medical payments insurer, health insurance plan, Medicare or Medicaid, worker’s compensation insurance, or similar payor of medical bills for you will have to be reimbursed for some (or in some cases all) of the bills the payor has paid. This is called “subrogation.” Likewise, any providers who have entered into a “letter of protection” agreement, or who have obtained a lien on your recovery, will have to be paid. Before settling a case, we will try to identify for you all such payments that will have to be paid out of your recovery. We cannot, however, be responsible for knowing about or making payments if you do not provide us with the information. Therefore, be sure to keep us informed as your case progresses.
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6. WHAT DETERMINES IF I WIN OR LOSE, AND HOW MUCH MONEY?: BASICS OF PERSONAL INJURY LAW
Personal injury law is obviously very complex, but a brief overview will be useful to you as your case proceeds. Most of our cases involve negligence of one kind or another, so this section will focus on that kind of case. If you have another kind of case, many of these concepts will still apply, and we can provide you (if we have not already done so) with legal background specific to your kind of case. Negligence simply means the failure to exercise reasonable care under the circumstances. It is different than an intentional act. A person who injures you is usually liable (legally responsible for compensating you) if the act is intentional, but intent to injure is not required for liability. In most cases, it is only required that the person was negligent – that is, that the person failed to exercise reasonable care under the circumstances. Other words and phrases that have similar meanings to negligence would include carelessness, disregard for safety, inattentiveness, lack of normal concern, lack of caution, acting irresponsible, hastiness, or recklessness (though in the law, reckless means something worse than negligent).
Just because someone is negligent does not mean the person is liable to you. In a negligence case, there are four elements you must prove by a preponderance of the evidence, which means sufficient evidence to convince a jury that the facts at issue are more likely true than not true. (This preponderance burden of proof is different than in a criminal case, where the prosecution must prove guilt to a much higher standard: beyond a reasonable doubt.) The four elements are: 1) duty, 2) breach of duty, 3) causation, and 4) damages. A simple way to look at the four elements is to say that a person who breaches a duty to you is liable to you for whatever damages were caused by it. Or to put it even more concisely: A person who causes harm because he didn’t do what the law requires is responsible for paying for the harm.
The duty element means you must prove that the person had a legal duty to exercise some degree of care toward you. Whether and to what extent there is a duty depends on many factors, and whether there is a duty is normally a question of law, which means a judge decides the issue instead of a jury. (Juries normally only decide questions of fact, like who is telling the truth, what happened, etc.) For example, generally a driver approaching an intersection has a duty to stop at a stop sign, and all drivers have a duty to drive at a safe speed under the circumstances. A property owner has a duty to business customers or people he invites to exercise reasonable care to keep his property reasonably safe, but he has a lesser duty to a trespasser. A seller or manufacturer of products has a duty to exercise reasonable care to make sure the products are not defective or unreasonably dangerous. Because duty is a question of law, there are some cases in which the law either creates or eliminates a duty. For example, an Indiana police officer engaged in law enforcement activities is usually not liable for injuries caused while doing so. In this case, the legislature has defined the duty by largely eliminating it, which is often called creating an immunity.
The breach of duty element means you must prove the defendant breached – that is, failed to fulfill – the duty owed to you. For example, you must prove the defendant failed to stop at a stop sign, or was driving too fast. Breach of duty is usually a question of fact, which means it is usually decided by a jury.
Duty and breach of duty together are often referred to as liability, and also as fault, because together they make the defendant “liable” or “at fault” for whatever damages are caused by the breach of duty. It is also important to note here the concept of vicarious liability. That concept means that an employer is generally legally responsible for the negligence of his or its employee. For example, if a FedEx delivery driver causes an accident while driving his route, both the driver and the company are liable, though the injured person may only recover his total damages once.
The causation element means you must establish a cause-effect link between the incident the defendant caused and the damages you claim. This is often one of the most contested parts of a negligence case. You have to prove your injuries, medical bills, etc. were caused by the incident and not by some other disease, or prior or subsequent accident or condition. For example, if you claim to have headaches because of a motor vehicle accident, but you already had headaches of similar severity and frequency before the accident, it may be difficult to prove causation. However, that does not mean that if you had some prior condition that predisposed you to injury, or if the incident made your condition worse, you cannot recover damages. The law recognizes this concept, which is sometimes called the “eggshell” rule (alluding to someone who is more fragile and susceptible to injury because of a prior condition.) For example, if a defendant runs over an elderly woman with his car, and the woman suffers a hip fracture because she has advanced osteoporosis, it is not a defense to a negligence case that the woman would not have fractured the hip if she were a 250-pound football player. This concept is sometimes stated as follows: “if a defendant injures the plaintiff, the defendant takes the plaintiff as he finds him.”
The damages element requires you to prove each item of damages caused by the incident. Damages basically means the losses and harms that the incident caused. (Damages are discussed in much more detail in our Client Guide.)
A defendant may raise as a defense to your case comparative fault or (in some cases, such as against a governmental entity in Indiana, contributory fault.) Most cases fall under the legal rules related to comparative fault. Under the comparative fault system, if a jury determines that both you and the defendant (and/or some other person) were at fault (were negligent), the jury has to determine whose fault contributed to the cause of the incident in what proportions. (The reason you as a plaintiff can be at fault is that you have a duty to yourself to exercise reasonable care for your own safety.) For example, suppose you were driving down a road in excess of the speed limit, and the defendant failed to yield at a stop sign and entered the road. The defendant is probably at fault because his breach of his duty to stop at the stop sign was part of the cause of the crash. But, if you had not been speeding (breaching your duty to drive at or below the speed limit), the defendant might have been able to make it into his lane without a collision occurring. In such a case, it is likely both you and the defendant will be attributed fault.
The jury applies the facts to the law to determine the fault of the parties by dividing up 100% of the fault among all people who it determines to be at fault. With some exceptions, as long as your fault is 50% or less, you recover from the defendant the proportion of your damages corresponding to the defendant’s fault. For example, if the jury finds you 20% at fault and the defendant 80% at fault, you are entitled to 80% of whatever dollar amount the jury determines your damages to be. However, if your fault is more than 50%, you recover nothing at all under Indiana law.
Contributory fault applies only to certain cases, most notably those against a governmental entity (the State, a county, a city, a school corporation, etc.) Under contributory fault, if you are found at fault at all, you recover nothing. To put it another way, you must establish 100% fault on the part of the defendant to prevail in a contributory fault case.
Another important related concept is the defense of failure to mitigate damages. This defense allows a defendant to avoid paying for damages if you did not do what a reasonable person would do to mitigate, or minimize, your damages. For example, if your doctor recommends physical therapy for you, but you fail to attend, the defendant can escape liability because you failed to mitigate. This defense is very important, and it is precisely why you must be careful to follow your doctor’s advice, as discussed above.
|1. Was the defendant at fault?||YES- go to question 2.
NO- STOP. Verdict for defendant
|2. Was the plaintiff at fault?||YES-go to question 3.
NO-skip to question 4.
3. What were the percentages of fault of the defendant and plaintiff, adding to 100%.
Plaintiff’s fault more than 50%? YES-STOP. Verdict for defendant.
(more than 0% in contributory fault case)
Plaintiff’s fault 50% or less: Assess fault percentages, go to question 4.
(if more than one defendant, attribute fault among each party)
|4. Determine plaintiff’s total damages in dollars.|
|5. Multiply plaintiff’s total damages in dollars by defendant’s fault percentage. Verdict for the plaintiff in that amount.|
Example 2: There are two defendants, X and Y. The jury finds both defendants were at fault: X’s fault is 70% and Y’s fault was 30%. The jury finds the plaintiff was not at fault. The jury determines the plaintiff’s damages to be $100,000. Verdict for the plaintiff for $100,000, of which X is responsible for $70,000 and Y is responsible for $30,000.
Example 3: The jury finds the defendant was at fault. The jury finds the plaintiff was also at fault. The jury assesses defendant’s fault to be 80% and plaintiff’s fault to be 20%. The jury determines the plaintiff’s damages to be $200,000. Verdict for the plaintiff for $160,000.
It is very important to note that juries are given very wide latitude in deciding cases. This is especially true with regard to assigning dollar values to damages. For example, in the same case, one jury might find the dollar value of the plaintiff’s pain and suffering to be $1,000, and another might find it to be $100,000. This is why it is very difficult to predict what a jury’s verdict will be.
When suit is filed against a defendant, the defendant will often raise the nonparty defense, which is a part of the law of comparative fault. This means the defendant is making the claim that some other person (other than the plaintiff or another defendant – hence a “nonparty”) is wholly or partially at fault for the plaintiff’s damages. Sometimes, this does not really matter, because the nonparty can be brought in as a defendant (and is therefore no longer a “nonparty” but just another defendant), and if the jury assesses fault to that defendant, damages can be collected from that defendant.
But sometimes, a nonparty cannot be named as a defendant for legal reasons. (For example, if a defendant blames the plaintiff’s employer, that employer cannot be brought in as a defendant because of immunity under the worker’s compensation laws.) In that case, the jury can assess fault to the nonparty, and that proportion of your damages cannot be collected.
The same problem can occur with a codefendant who has no insurance or assets to be able to pay a judgment. Again, the portion of your damages corresponding to the percentage of fault assigned by the jury to that codefendant simply cannot be recovered. One example of cases where this issue arises is cases involving inadequate security. For example, assume a plaintiff is shopping at a mall that has failed to provide lighting in its parking lot or any security guards, even after it knows a string of robberies has occurred. The plaintiff is injured by a robber and sues the mall, alleging it negligently failed to provide reasonable security. (This is a kind of premises liability case.) If the robber is named as a nonparty, or is brought into the case as a defendant, and the robber has no insurance or assets (as is usually the case), the portion of the plaintiff’s damages corresponding to the percentage of fault assigned by the jury to the robber cannot be recovered. (In some cases, this can be avoided using proper legal arguments.) This can create risk of a very low verdict even in a case of clear fault on the part of the mall and substantial damages, because juries will often assign the majority of the fault, perhaps as much as 99%, to the robber who committed the crime instead of to the mall that negligently (but unintentionally) failed to exercise reasonable care to provide security. When it comes time to make settlement decisions in such a case, it is important that you realistically take into account the problem of fault being attributed to the nonparty or party (in this example, the robber) from whom you cannot collect.
e. Insurance and Insurance Limits
Many people mistakenly believe that a lawsuit is filed not against the defendant, but against his or her insurance company. This is usually not true. Suit is filed against the defendant. The defendant’s insurance company (if the defendant is insured) then appoints and pays for a lawyer to represent the defendant, and if the case is settled or the defendant loses at trial, the insurance company must pay the judgment, usually only up to the insurance policy limits. In fact, in most cases at trial against an individual defendant, the jury does not know whether the defendant even has insurance, and the judge instructs the jury not to consider whether there is insurance in deciding the case.
Insurance limits (also called liability limits) refers to the dollar limit of liability coverage the defendant has purchased from the defendant’s insurance company. This can be either auto insurance, homeowner’s liability insurance, or other general liability insurance. If a defendant does not have significant assets that can be taken from him or her, usually the maximum amount of money that can be realistically obtained is the defendant’s insurance limits. (Such a defendant, who has no assets that can be collected, is called judgment proof. Most people, even those who have relatively high incomes, are judgment proof for all practical purposes.) Of course, if the defendant is a large company with assets that could be seized, it does not really matter what the insurance limits are, because the company has money to pay whatever amount a jury assesses.
In automobile accident cases, sometimes we will pursue an uninsured or underinsured case against your own insurance company. Normally, when you buy auto insurance (or when you are a passenger in a vehicle owned by someone who has such insurance), uninsured motorist (“UM”) and underinsured motorist (“UIM”) coverage is purchased with it. The UM coverage applies if the defendant driver had no insurance, and the coverage puts you in the same position as if the defendant had insurance in the same amount as your UM limits. UIM coverage applies if the defendant’s coverage limits are less than your own UIM limits, and allows you to recover the difference between the UIM limits and the defendant’s limits from your insurance company. (In other words, like with
UM coverage, it ultimately puts you in the same position as if the defendant had insurance in the same amount as your UIM limits.)
For example, if the defendant driver has $100,000 in liability limits, and you have $100,000 in UIM limits, the most you can recover is the $100,000 from the other driver’s insurance company. You have no UIM coverage available because your UIM limits do not exceed the other driver’s limits. On the other hand, if the other driver has $50,000 in liability limits, and you have $100,000 in UIM limits, the most you can recover is $100,000. To do so, you would first have to recover the $50,000 from the other driver’s insurance company, and you could then recover up to $50,000 more (for a total of $100,000, your UIM limit) from your own insurance company. Of course, regardless of the insurance limits, you can never recover more than your actual damages. To put it another way, the insurance limits provide a maximum, but not a minimum amount of money you can recover.
The minimum liability coverage limits under Indiana law for bodily injury are $25,000 per person and $50,000 per occurrence. (Per occurrence limits mean, no matter how many people were injured, the maximum aggregate recovery by all claimants for one incident is the per occurrence limit.) The minimum UM amount under Indiana law is also $25,000 per person and $50,000 per occurrence, but the minimum UIM limit is $50,000 per person. Automobile insurance liability is usually purchased in even amounts of $25,000, $50,000, $100,000, $300,000, $500,000, or more. Please note that people often tell us they have “full coverage” in their auto insurance policies. That is actually a meaningless term for our purposes. It is meant to refer to comprehensive property damage insurance, which has nothing to do with liability or UM/UIM insurance.
A few special issues about proving causation and damages are important to understand if they apply to your case. These are problems that can make it difficult to obtain a favorable settlement or verdict. Of course, we have many ways to try to counter these arguments, but if any of these apply to your case, it is important to understand them so you can make wise settlement decisions.
First, if your case involves an automobile accident that was relatively minor, the defense will often make the “minor impact” argument. This argument basically tries to play into jurors’ experience with seeing or being involved in auto accidents. If your car was not badly damaged, or the collision did not involve high speeds, the defense will basically argue that the crash was just a “fender-bender” and that no one could really be injured in such an accident.
Second, if your injuries did not develop immediately after the incident, the defendant can argue that you were not actually injured, or that something other than the incident caused your injuries. For instance, if you did not need an ambulance, or did not visit an emergency room right after the incident, or if there was a delay or gap of time before you sought medical treatment, the defendant can sometimes convince a jury no damages were caused by the incident.
A third issue that sometimes comes up relates to the difference between “objective” and “subjective” injuries. Objective injuries means injuries that can be proven without your testimony. An example is a broken bone: we can show the jury an x-ray of the fracture, and no one can really dispute that the bone is broken. Subjective injuries, on the other hand, are injuries for which the only proof is your testimony. For example, in most cases, we cannot show a picture or the results of a medical test to prove a person is suffering from headaches, neck pain, or back pain. The only proof we have is your word. Because some jurors are skeptical, a case with subjective injuries can be much more difficult to win than one with objective injuries. And when subjective injuries are involved, it is all the more important that you do nothing to damage your credibility with a jury.
The damages element of a negligence case requires you to prove each item of damages caused by the incident. Damages means the financial and other losses or harms you suffered because of the incident. There are two major categories of personal injury damages: special damages (or “specials” for short) and general damages.
Special damages (sometimes called economic damages) are those losses and damages that have a specific (“special”) dollar value attached to them that is unique to that case (therefore “special”). Special damages include:
- Property damage, to a vehicle or other property (in the case of a vehicle, it is measured either by the cost of repairs or, if the repairs cost more than the vehicle is worth – the vehicle is a total loss or “totaled” – the fair market value of the vehicle as determined by an objective source, such as Kelly Blue Book)
- Loss of use of property (such as when you lost the use of your car while it was being repaired)
- Medical bills you incurred in the past if they were reasonable and necessary due to your injuries from the incident, as well as any medical bills you are reasonably certain to incur in the future
- Lost wages or income, meaning wages or income you lost from missing work because of your injuries (this can include cases where you actually lost no money, such as where you had to “use up” vacation or sick time)
- Future lost income (called diminished earning capacity) if you have permanent injuries that affect your ability to earn a living
- Lost time (time you could not do your normal activities) outside of work time, including lost time for a person who is a homemaker, retired, or unemployed
- Other economic losses, such as if you have to pay someone to do your housework or other duties because of your injuries (in fact, even if you do not have to pay the person, for example, because the person is a friend or family member you can claim the fair value of the services as damages)
- Physical pain and suffering you have suffered in the past, as well as any physical pain and suffering you are reasonably certain to have in the future
- Mental/emotional pain and suffering (such as fright, humiliation, anguish, and worry) you have suffered in the past, as well as any mental/emotional pain and suffering you are reasonably certain to have in the future
- Any permanent impairment or disability, scarring, or disfigurement
- Temporary or permanent loss of the ability to function as a whole person (which relates to interference in your activities and ability to enjoy your life)
There are also numerous other kinds of damages that apply to certain cases. For example, another category of damages is called punitive damages, which in most cases are not applicable.Punitive damages are designed to punish a defendant whose conduct was worse than merely negligent – for example, an intoxicated driver. Unfortunately, in Indiana, in the rare cases where punitive damages may be recovered, the majority share of the damages is not yours to keep; it must be turned over to the State of Indiana.
When damages are presented to a jury, we usually use a damages chart: a table that lists the elements of special and general damages and the amounts of money we argue are appropriate assessments for each element. A sample damages chart is contained in section 13b below. Finally, proving damages (as well as causation, and sometimes liability) at trial usually requires testimony from expert witnesses like your physicians and in some cases, vocational experts, economists, accountants, and others. Expert witnesses are witnesses who, because of their training and experience, are allowed to testify in the form of an opinion. For example, a doctor can testify: “In my opinion, the plaintiff’s headaches were caused by the car crash.”
Premises liability cases are those cases involving a plaintiff being injured while on the defendant’s property (the defendant’s “premises”). The most common kinds of premises liability cases are slip and fall cases (such as on ice or snow, or a spilled substance). Trip and fall cases – where a person trips over some kind of object or obstacle that should not have been there – are also fairly common. These cases present special issues you should be aware of.
First, people often have a mistaken belief that if a person is injured on another person’s property, the property owner is automatically liable. Nothing could be further from the truth. To prevail in such a case, like in any other case, you must prove that the defendant was negligent. This often requires proving that the defendant knew or should have known there was a dangerous condition on the property. In fact, many premises liability cases, especially slip and fall cases, are among the most difficult cases to win. There are several reasons for this, but one of them is that juries often find that someone who slipped or tripped and fell could have done a better job watching where the person was going, so juries often assign a significant degree of comparative fault.
Second, because of comparative fault (except in some cases, including cases against a governmental entity, where contributory fault rules apply, see above) there are actually two ways such a case can be lost. One is, as noted above, where a jury finds the defendant was not at fault. But second, if the jury finds the defendant was at fault but that your fault was greater (for example, 51% your fault, 49% defendant’s fault) you recover nothing.
Third, your recovery can be diminished because of comparative fault, and in slip or trip and fall cases, that is often the case.
For these reasons, as you make settlement decisions in a case like this, it is important that you realistically take into account the likelihood of losing the case or having your recovery reduced by comparative fault.
Medical malpractice cases in Indiana have some very unique features that are different – often much different – than other cases. Indiana has some of the most doctor and hospital-friendly laws in the country for medical malpractice. It is important to be aware of this, and to understand how these differences come into play. Some of what was discussed earlier in this Guide does not apply to medical malpractice cases, so it is important that you read this section if you have a medical malpractice case. Some of the differences are procedural (involving the special legal procedures required) and some are substantive (involving the substance of the law that determines the patient’s rights).
The procedural differences in a medical malpractice case are very complex. Generally, they relate to the medical review panel procedure that is required under Indiana law. Unlike in other cases, where an injured person can choose to file a lawsuit in court at any time, in a medical malpractice case we must first file a “proposed complaint” with the Indiana Department of Insurance Malpractice Division. After this is done, written discovery and depositions take place just like in other cases. At an appropriate point in the process, the steps to form a medical review panel begin. The parties agree on an attorney to serve as the panel chairperson, and the chairperson begins to form the panel itself. The panel consists of three doctors or other healthcare professionals, usually of the same professional specialty as the defendant. Forming a panel takes time, as each member has to be qualified and able to serve. After evidence is compiled through discovery, the parties supply written submissions of argument and evidence to the panel. The panel reads the submissions, then meets together with the chairperson to discuss the case. (This too takes some time, as three doctors and a lawyer, often from different parts of the state, have to arrange a meeting.) At that point, usually less than 30 days after the meeting, a panel decision is entered. We will let you know immediately when that happens. While the possible decisions are somewhat complex, in simple terms the panel can decide either: a) the defendant healthcare provider breached the standard of care (committed malpractice); b) the defendant did not breach the standard of care; or c) there are factual questions or discrepancies that need to be resolved (by a judge or jury) to determine whether the standard of care was breached. Such a panel decision can either be unanimous (3 to 0) or by majority
(2 to 1).
The panel decision is not legally conclusive. That is, after the panel decision is made, the losing side can proceed to a regular case in court. But, the panel members are automatically allowed to testify as expert witnesses in court as to their opinion about whether malpractice occurred, and juries will be informed that the panel members are “neutral” as opposed to expert witnesses hired by either party. Legally, you cannot go forward in a medical malpractice case without medical expert testimony to back your claim. So, if the panel decides against you (especially if it is unanimous), we have to carefully review the information and decide whether there is any chance of success with a jury. We will usually speak with chair and/or the panel members to see what the basis was for their reasoning. We may also consult other medical experts.
The final procedural difference with medical malpractice is this. If you settle a medical malpractice case for the full amount of the provider cap (see below), or obtain a verdict in your favor, to recover additional money from under the patient compensation fund cap, a separate proceeding has to take place to do so. The patient compensation fund will be represented by the Indiana Attorney General’s office, and the case can either be settled or proceed to trial. (In cases where the damages do not exceed the provider cap, this is not an issue.)
In addition to these procedural differences, there are numerous substantive differences in a medical malpractice case that are summarized here. First, in medical malpractice cases, you must prove all the elements of a negligence case, but the “duty” and “breach of duty” element has some special aspects. In a nutshell, to be guilty of medical malpractice, the doctor, hospital, or other healthcare provider must have failed to adhere to the standard of care applicable to those circumstances. The standard of care does not require that the healthcare provider be excellent, good, or even average. It only requires that the healthcare provider be reasonably competent based on the circumstances.