Basics of Personal Injury Claims
 
 
 
 

       For informational purposes only. Always consult an attorney to obtain competent legal advice.

In General

  • Any claim for personal injuries has three components:

  • These three components will determine the settlement value of any personal injury claim.

  • Over 95% of all personal injury claims in Rhode Island will be settled or arbitrated out of court.

Liability

  • In general, liability exists if the at-fault party (which can be a person, company and/or a governmental entity) breaches a legal duty to another.

Examples of Liability Issues:

  • Auto Accidents:  The simplest example may be the garden variety rear-end auto accident where the rear vehicle is at fault, or liable. Other situations where a driver can be liable for injuries resulting from a collision includes any violation of the “rules of the road” that results in injury to another, such as running a red light, pulling out into traffic, crossing the centerline of the road, driving while distracted, or driving under the influence of alcohol or drugs (even prescription drugs).

  • When two cars collide and one or more passengers of either vehicle are injured, one or both drivers may be liable for any injuries to the passenger(s).

  • Premises Liability:  In a “slip-and-fall” incident, such as where a customer slipped on a wet floor or icy parking lot of a retail establishment, liability is often contested. The insurance company(s) representing the owner of the property and/or the owner of the business may claim that the dangerous condition did not exist, or that the customer was at-fault for not paying attention, or that the customer knew of the condition prior to the accident and "assumed the risk".

  • Falls can occur on stairs, escalators, porches, in parking lots, store aisles, etc. Injuries occurring on property can also be for reasons other than falls, such as being struck by a foreign object, being the victim of a crime due to lack of proper security, maintaining a condition that attracts a child to a dangerous condition on private property, or harboring a vicious dog that injures a person or pet.

  • Medical or Professional Malpractice:  Any professional has a legal duty is to perform services in a manner that meets the applicable standard of care of that profession. If the standard of care was followed, then there may be no liability. Thus, even if a patient suffers a bad result from an unsuccessful medical procedure, if the procedure was appropriate and performed properly and the bad result was a foreseeable risk that the patient knowingly undertook, then negligence may be absent.

  • However, if it can be shown by a medical expert that the doctor or hospital failed to meet the standard of care and that as a result the patient suffered damages, then legal liability may exist for medical malpractice.

  • Non-physician professionals, especially those that are certified or licensed by the state, are also required to meet the appropriate standard of care in providing services to 
    patients.

  • Criminal Acts:  In a case where a crime is committed resulting in personal injury to a victim, such as an assault and battery, a civil claim may be brought by the victim, whether or not a criminal prosecution was brought by the state.

 Legal Issues of Liability:

  • Legal principles can affect how liability is determined or measured. Following are some principles of law that may apply in any personal injury claim. (These are examples of Rhode Island law, which often differ from the laws of other states, such as Massachusetts or Connecticut.)

  • Comparative Negligence:  When the person injured is partially at-fault for his or her own damages, under Rhode Island law any award for damages is reduced by the percentage of fault attributable to the person claiming damages. Thus, in a slip-and-fall case, if it is determined by a jury that the store was 40% liable (for example, because it did not maintain its premises properly by allowing a dangerous condition to exist) and the store customer who was injured was 60% liable (for example, because he or she should have been more careful) then the store would pay only 40% of any award of damages. 

  • Where a passenger in a vehicle is injured as a result of a collision between two vehicles, both drivers may bear some percentage of liability for the collision. The total amount of liability of all at-fault parties must always equal 100%.

  • Joint and Several Liability: When more than one party is liable for damages to the injured  person, each at-fault party is apportioned a percentage of liability. However, the person injured may ordinarily collect all of his or her damages from either at-fault party. Any party paying more than their share of damages may then seek “contribution” from the other at-fault party. This principle of “joint and several liability” is to ensure that the injured person is allowed the best opportunity to collect his or her damages.

  • For example, if a passenger of a vehicle is injured due to the negligence of the drivers of two vehicles and each driver is 50% liable, if one vehicle has sufficient insurance coverage to pay all of the damages and the other vehicle lacks insurance, then the injured party may ordinarily collect his or her entire damages from the insured vehicle.

  • Assumption of the Risk:  If a dangerous condition, such as a wet floor in a store or an icy parking lot, was clearly visible to the person injured, then the injured person may be deemed to have “assumed the risk” by proceeding onto the dangerous condition. If so, he or she may not be able to recover any damages. The Assumption of the Risk defense may be a complete or partial bar to recovery, depending upon the circumstances.

  • However, there are exceptions to the "assumption of the risk" defense, such as when the person injured had no reasonable alternative to avoid the dangerous condition, even if the danger was obvious. For example, a tenant of an apartment building may have no reasonable alternative but to walk across a snow and ice covered parking lot in order to enter the building.

Damages

  • The breach of a legal duty by the at-fault party must also result in some legally recognizable damages in order for the injured party to recover an award. Typical damages include:

  • Wrongful Death Damages ($250,000 minimum): Rhode Island law provides a formula to determine the lifetime damages of a person who died due to the negligence of another. In general, the formula calculates the estimated lifetime income and subtracts estimated lifetime expenses. However, the minimum amount of damages for Wrongful Death in Rhode Island was raised to $250,000, which is payable even if the deceased person’s projected income for the remainder of his or her life would have been zero.

  • Medical Expenses: These include the reasonable cost of all medical treatments, prescription drugs and medical devices that were reasonably necessary to treat the injuries incurred by the injured party, including any provable future medical expenses.

  • Loss of Earnings: This includes not only earnings that have already been lost due to the injuries sustained, but also future earnings. In the event of a permanent injury resulting in permanent loss earnings, a person’s “work life expectancy” is taken into account to determine the amount of future loss earnings.

  • Loss of benefits may also be compensable. For example, loss of sick days and/or vacation time, or the loss of contribution to one's pension fund caused by missing days from work.

  • Pain & Suffering: This includes physical pain and mental suffering caused by personal injuries and are usually calculated for the entire period of medical treatments; or in the case of a permanent injury, for the period of the remaining life expectancy of the injured party. Pain and suffering damages may be substantial, especially where the injured party suffers from life-altering chronic pain or paralysis caused by the accident.

  • Bodily Injury and Impairment: This includes the extent of injury and impairment to any body part for diminished use or function. The impairment is considered temporary if the injured party recovers fully from his or her injuries. In the case of permanent injury, the impairment is permanent and is measured for the life expectancy of the injured party.  

  • Disfigurement, Scarring: Even if a scar or loss of limb can be concealed by clothing, the injured party is entitled to damages. Where the scar is especially noticeable, or in the case of a loss of limb, scarring and disfigurement damages may be considerable. (Of course, a loss of limb will may also result in loss wages, impairment, and other damages as well.)

  • Loss of Consortium: These damages are for the loss of society and companionship of a spouse, minor child, or parent. In a Wrongful Death claim, these damages can be substantial. For example, the spouse and any minor children of a person killed due to the negligence of another would each have a claim for loss of consortium damages; and parents have claims for the loss of a child.

  • Home Care: These include the present and future expenses of homemaker services and home aide care provided by others that are necessary due to limitations caused by personal injuries. These damages can be substantial in the case of personal injuries resulting in paralysis.

  • Punitive Damages: These are only awarded where the conduct resulting in damage to the plaintiff was intentional or criminal in nature. Rather than being based upon the monetary loss to the injured party, punitive damages are designed to punish the at-fault party and are therefore based upon the net worth of the at-fault party.

Temporary vs. Permanent Damages:

  • Temporary Injury:  A victim of an auto accident may have suffered back and neck “soft tissue” injuries, some bruising and contusions. The injuries resolve over a period of time, perhaps with the help of physical therapy and/or chiropractic treatments. Generally, the period from the accident date until the last medical treatment will be the "closed period" used to determine the amount for pain and suffering damages and the cost of medical expenses. Add to this the loss wages and any other damages.

  • Permanent Injury:  This is when a personal injury victim has an injury that never fully resolves and is determined by a medical expert to be permanent. The attorney retains the treating physician or other specialist doctor to prepare a report of the extent of the impairment. The length of time used in determining permanent injuries is usually the injured party’s life expectancy, as determined by the U.S. census tables.

 Legal Issues of Damages:

  • Pre-Existing Medical Conditions:  Personal injuries are proved by obtaining medical records of treatments following the accident. Ordinarily, an insurance company will demand to review the medical records of the injured party for several years before the accident in order to determine if the injured party had a prior similar injury. If so, the injury from the accident may be an "aggravation" of a pre-existing injury, rather than an entirely new injury. In such a case, the injured party is entitled to recover only for the extent of aggravation and not for the underlying pre-existing condition. However, aggravation awards can be substantial.

  • One way that a personal injury attorney can show that an accident caused an entirely new injury is to show that the injured person did not have pain or other symptoms prior to the accident. This can often be shown, for example, by comparing the medical and prescription drug records of the injured party both before and after the accident.

  • Loss Wages or Profits: Comparing wage records from before and after an accident is one method to prove loss wages. An injured party is also entitled to the full value of sick days and vacation days that were used up due to the accident.

  • For self-employed persons, loss wages or loss profits can be proved by comparing tax return records before and after the accident. (Self-employed claimants who lack tax records present a particular challenge to any personal injury attorney.)

  • An expert is ordinarily retained by the attorney to estimate past and future loss wages in the event of a permanent injury in which loss wages may be ongoing, or for a Wrongful Death claim in which the loss wages will be for the period of the deceased party’s loss work life expectancy.

  • Pain and Suffering: The length of time that an injured person experiences pain and suffering from his or her injuries can be shown through medical records prepared by doctors and other medical providers during treatment for injuries sustained in the accident. The prescription drug records should also reveal new or increased pain medications after the accident.

  • An important skill of any personal injury attorney is to know how to interpret medical records and engage medical experts when needed. Often, the attorney will retain a doctor or other medical professional to prepare a report.

  • Delays or “Gaps” in Treatment:  When an injured party delays getting treatment after an accident, or treats for a period of time, then stops, and then starts up again, such delays or "gaps" in treatment can adversely affect the settlement value of any personal injury claim. Simply put, the insurance company will argue that the injuries claimed could not have been serious if the injured party delayed in getting treatment, or had a long gap in treatment. 

  • An injured party should seek prompt medical treatment rather than wait and hope that the pain will “go away”. Any delay in treatment will mean that there are no medical records available to demonstrate that a serious injury occurred. In the case of a permanent injury, treatment up to the point when the treating physician determines that the injured person has reached “maximum medical improvement” is advisable.

  • In any event, an injured person should protect his or her health by obtaining prompt medical treatment by a physician, rather than “self-diagnosing” the injuries or hoping that the injuries will eventually resolve on their own.

Collectability of Award

  • Obtaining a large award for damages means little if the award cannot be collected from an at-fault party. For this reason, the availability of insurance coverage to pay all, or at least a portion, of any award for personal injuries is important in evaluating any personal injury claim. As a practical matter, if the at-fault party lacks insurance coverage, it is very unlikely that he or she will have much in the way of assets in which to pay any award.

  • Keep in mind, however, that most people injured in a car accident have some amount of Uninsured/Underinsured Motorist Bodily Injury (UMBI) coverage under their own automobile insurance policy which will provide a source of insurance coverage in the event that the at-fault driver lacks sufficient insurance.

  • Fully exploring the availability of all insurance coverages that may be available for payment of personal injuries and other damages such as loss wages is a crucial role of a personal injury attorney. Many people injured, especially in auto accidents, assume wrongly that there is little or no insurance coverage available to pay their damages.

Examples of Insurance Coverage / Collectability of Award:

  • Auto Liability Insurance Coverage:  An at-fault driver in an auto accident has “25/50” liability limits (the minimum amount under Rhode Island law). Generally, if the driver and any passengers of the other vehicle are injured, or if any passengers of the at-fault vehicle are injured, each injured party can collect up to $25,000 per person, but the total of all payouts may not exceed $50,000 per accident.

  • UMBI Coverage:  If the at-fault party in an auto accident has no insurance coverage or has insurance coverage in an amount insufficient to cover the injured party’s damages, and if the injured party has Uninsured/Underinsured Motorist Bodily Injury (UMBI) coverage under his or her own auto insurance policy (sometimes even under the policy of a family member), then the injured party can collect from his or her own insurance company without affecting his or her insurance rates.

  • Medical Payments Coverage:  If an injured party has “medical payments” or “personal injury protection” (PIP) coverage -- typically $2,500 to $10,000 limit -- this coverage is in addition to any UMBI or other coverage and is applied only to pay medical bills related to injuries from the accident. (For insurance policies issued outside of Rhode Island, such as Florida or Massachusetts policies, certain rules may apply that govern how and to what extent PIP benefits may be paid.)

  • Usually, an injured person's medical payments coverage limits must be exhausted before his or her health insurance will start to cover the cost of medical treatments.

  • Premises Liability Insurance:  In a slip-and-fall or other accident occurring on the property of another, liability insurance covering the “premises” where the fall took place would ordinarily be available to compensate an injured party for most injuries sustained. The business itself may also have insurance coverage which can often provide an alternate or additional source of insurance coverage.

  • Errors & Omissions Coverage:  This is a type of liability coverage that compensates a party suffering damages due to the professional malpractice, such as a death or injury resulting from medical malpractice.

  • Other Insurance Coverage:  Workers’ Compensation insurance covers workplace injuries. Temporary Disability Insurance (TDI) is available to pay benefits to those who cannot work due to a temporary condition. An “umbrella policy” of insurance, if available to an at-fault party, can provide additional coverage to an injured party if the “primary” insurance coverage is insufficient.

Legal Issues of Collectability of Damages:

  • Auto Accidents:  Insurance policies covering vehicles are different from other types of insurance contracts. For example, Rhode Island law requires all registered vehicles to have liability insurance with policy limits of at least $25,000 per person and $50,000 per accident. However, an owner of a vehicle may elect in writing not to obtain Uninsured/Underinsured Motorist Bodily Injury ("UMBI") coverage.

  • No driver should "opt out" of UMBI coverage. This coverage will provide benefits for damages to the driver and his or her passengers caused by an uninsured driver, or will provide additional coverage for damages caused by an underinsured driver. In some instances, the victim(s) may recover UMBI coverage from more than one insurance policy. If so, the coverages available may be added together.

  • Insurance Policy Exclusions:  Even if one or more insurance policies were in effect at the time of the accident, language in any policy may specifically exclude coverage in some circumstances. For example, intentional acts of the at-fault party or an award of punitive damages can be excluded in insurance policies.

  • However, the exclusionary language in any insurance policy must generally be clear and may not exclude coverage mandated by law. Thus, any denial of coverage by an insurance company should be thoroughly investigated by an experienced attorney and, if appropriate, challenged.

Important Disclaimer: The content of this website is for informational purposes only and is not intended as legal advice. No attorney-client relationship can be created by visiting this website and no visitor to this site may rely on any information as legal advice. Always seek legal advice from a competent attorney.

Copyright 2019.  All content copyright of Kenneth Kando. No content may be

copied or reproduced without express written consent.