Catastrophic Injury

Catastrophic Injury

The successful outcome of any personal injury case requires four elements:

1. that the victim either not be at fault with respect to the incident out of which his/her injury arose or have a lesser degree of fault than the party against whom the claim is asserted;
2. that the injuries/damages claimed are attributable to the incident–the causation issue;
3. that there be adequate funds available to pay the amount either the court or jury awards or identified in the settlement documents; and
4. that the injuries be such as to warrant the sum the claimant is seeking.

1. California is a comparative fault state; and it is the province of the jury to determine with respect to any particular lawsuit the comparative fault of the parties involved.  If , for example, a driver on the freeway might have avoided the drunken maniac who swerves into him at 100 mph had he only not been busy reading his text messages at the critical moment, then his/her recovery will be reduced by the extent to which the trier of fact determines that the injured party was partly at fault.

2. The injuries arose from the accident that is the subject of the claim and not from some prior event.  For example, if a claimant were to assert diminished powers of mental focus since he was attacked in the defendant’s parking lot by robbers, but where an examination of his medical records indicates that he had been to see a neurologist prior to the attack and that the neurologist had noted that he was mentally impaired because of his voracious consumption of mind altering hard drugs . . . the case will be problematical.   

3. In the case of a catastrophic injury, most people at fault do not carry sufficient insurance. Also, most people injured by motor vehicles are not going to be injured by a driver for a government entity or some other organization that’s sufficiently self insured to pay a large (seven figure or more) claim.  In addition to the severity of the injury and that it was caused by the incident that is the subject of the claim, there’s also the practical necessity of there being sufficient funds to compensate the injured party.  A judgment against a private individual, for example, isn’t going to do the injured party much good if such individual does not have the financial means at his/her disposal to provide adequate compensation.  If you’re reading this, the likelihood is that your falling victim to an accident with serious injuries will be the fault of someone other than you.  Long story short: sufficient uninsured/underinsured motorist coverage is what all of us need!

4. Finally, to achieve a large settlement amount or jury verdict, the injury or injuries must be severe.  Catastrophic injuries are those that will have devastating effects on someone’s life and those of his/her loved ones–catastrophic injuries such as brain injuries, spinal cord injuries resulting in paralysis or ongoing unforgiving pain, loss of limb, and severe burns.  Insurance companies thrive on minimizing liability and often claim that injuries are not as severe as they appear.  While it is the case, truth be told, that some claimants do exaggerate from time to time, it is not the business of insurance companies to ferret out the true extent of the injuries sustained by an accident victim; and they will have no compunction putting the best lawyers and experts they can hire to work to create doubt that the victim is as injured as he or she claims.    The battle against the insurance companies’ attempts to deflect blame and to create a false impression never ends; but with an honest client who has suffered real injuries, a doctor who can communicate the cause and the specifics of the injuries to a jury made up of people just like you, and a good lawyer to present all the evidence and argue for justice for his client persuasively, the battle should be winnable!