Massachusetts and Rhode Island Attorney, Brian Cunha, Answers Frequently Asked Questions About Personal Injury Claims
Q: What is personal injury law?
A: Personal injury law is the name given to the branch of tort law that covers any wrong or personal injury to another person, property, rights, or reputation. A personal injury can happen anywhere due to a myriad of circumstances including a negligent driver, a faulty product or drug, a faulty construction repair, because of a mistake during medical treatment, a dog bite or because you slipped and fell on a wet floor or pavement.
The personal injury can be physical or psychological but, to be considered actionable, it must occur due to the negligence or unreasonably safe actions of another person,, a manufacturer, your doctor, your landlord, a contractor or some other person or organization who owes you a duty of ordinary care.
Common examples of personal injury law causes of action that the lawyers at Brian Cunha & Associates handle include automobile negligence, slip and fall cases, dog bites construction accidents, civil rights claims , paraplegia and quadriplegia claims, brain injuries, wrongful death, product liability, medical malpractice or simple negligence.
If you live in Rhode Island or Massachusetts and think you may have a case deserving a personal injury settlement, please contact a personal injury lawyer or personal injury attorney at Brian Cunha & Associates toll free: (800) 322-8300 or send us an email by using our contact form.
Q: Do I have to go through an operation for the insurance company to compensate me for my pain and suffering?
A: No. After liability or fault is taken into account , compensation for personal injuries is based on the personal injuries that you received. Whether you had surgery or not is just another factor that our attorneys at Brian Cunha & Associates and the insurance Company evaluate in arriving at fair compensation for your personal injuries. Typically the valuation of a personal injury claim by Brian Cunha & Associates will consider the type of personal injury that you received, the duration of your symptoms, i.e. how long it took you to recover, the amount of your medical bills, your lost wages or loss of earning capacity and the physical pain or mental suffering that you endured as a result of your personal injuries. Obviously if you have personal injuries that are permanent, the value of your personal injury case is significantly enhanced over injuries from which you fully recover.
One thing that must be remembered is that all personal injury cases are different and therefore each personal injury case is evaluated by the attorneys at Brian Cunha & Associates based on its unique characteristics.
Q: Do most cases go to trial to recover damages?
A: No. statistically 85-90% of personal injury cases in Massachusetts and Rhode Island will settle before the case reaches a jury for decision. However, a large percentage of personal injury cases will not settle before a personal injury lawsuit is filed by our attorneys at Brian Cunha & Associates. The reasons vary, but usually a lawsuit is required because the defendant insurance company is being unreasonable in their offer of settlement to fairly compensate you for your personal injuries.
After the suit is filed, Brian Cunha & Associates will engage in discovery with the insurance company, which will usually entail the exchange of documents including police reports, medical reports, bills, photographs of the scene and other documentation that may have some relevance to your personal injury case. Depositions in MA and RI are often taken of both the Plaintiff and the Defendant to learn their side of the story, to evaluate each person as a witness and on the defense attorneys part, to learn more about the Plaintiffs injuries.
Many cases will settle after depositions are completed.
Q: Does a prior injury affect the value of my claim?
A: The personal injury law in MA and RI are the same in that the Defendants insurance company is required to take the clients of Brian Cunha & Associates or any other plaintiffs law firm as they find them. In other words the fact that you may have a pre-existing personal injury or condition does not relieve the defendant insurance company of their responsibility of fully and fairly compensating you for your personal injury that occurred as a result of the Defendants negligence.
However, it is important to recognize that the insurance company will always argue that the are responsible only for any aggravation of the pre-existing condition and not the pre-existing personal injury condition itself.
Our lawyers at Brian Cunha & Associates frequently encounter this issue. Our attorneys at Brian Cunha & Associates will obtain the reports of the plaintiffs treating physicians and other outside experts to counter this commonly raised defense used by the insurance companies to lower any personal injury settlements.
Q: Is there a minimum or maximum amount that can be recovered in a personal injury settlement?
A: No. There is no limit to any personal injury settlement. Personal injury settlement amounts negotiated by our attorneys at Brian Cunha & Associates in MA and RI are generally dictated by the personal injuries received, the medical expenses, degree of disability, loss of earning capacity and liability.
However, often times settlement amounts are limited by the amount of insurance coverage that the Defendant has available. For example, if the Plaintiff sustains a serious injury requiring surgery and an extended convalescence with a high amount of medical bills and the Defendant has $100,000.00 in insurance, and no other assets, then the recovery may be limited to the $100,000.00
Q: What are the issues affecting the damages that can be recovered?
A: Damages are almost always money damages and are generally based on the injuries received. Damages are evaluated by the insurance company and the attorneys at Brian Cunha & Associates on a myriad of factors including, the type of personal injury received, the severity of the personal injury, the pain and suffering endured by the plaintiff as a result of the personal injury, the time it took to recover from the personal injury, the medical expenses incurred and the negligence of the Defendant as well as the lack of negligence on the part of the plaintiff.
Q: What does “preponderance of the evidence” mean?
A: In every personal injury case, the attorneys at Brian Cunha & Associates must demonstrate to the insurance company that the defendant that caused the injuries to our client was negligent. If the Defendant was not negligent, no matter what the injuries are or how severe they may be, there is no recovery.
The law in Massachusetts and Rhode Island as well as most states in the United States requires that negligence must be proved by a preponderance of the evidence. What that means is two things.
First, that it is more likely than not that the Defendant was negligent.
Second, that it is more likely than not that the the injuries you received were caused by the Defendants negligence and not some other unrelated cause.
Put another way – assume we had a scale and on one side we placed all the evidence that the Defendant was negligent and caused your injuries and on the other side of the scale place all the evidence that the Defendant was not negligent or did not cause the injuries you claim to have sustained.
If the Plaintiff is able to tip the scale even a tiny bit in his favor, he has proven that the Defendant was negligent by a preponderance of the evidence.
At Brian Cunha & Associates we work diligently and have the resources and expertise to amass the evidence necessary to demonstrate to the insurance company or if the case goes to trial, to the jury, that by a preponderance of the evidence the Defendant was negligent.
Q: What’s a normal settlement amount?
A: There is no normal settlement amount for a personal injury case. Each case is unique and evaluated by the attorneys at Brian Cunha & Associate and the insurance company based on the factors that have been previously discussed.
Q: What’s considered “pain and suffering?”
A: Pain and suffering in a personal injury case are short hand for physical pain and mental suffering that, in addition to such things as medical expenses and lost wages, are recoverable as damages in a personal injury lawsuit.
Pain and suffering is perhaps the most elusive and fought over factor in evaluating and settling personal injury cases as they consist of a number of factors both evident and subtle.
The most obvious evidence of pain and suffering are serious injuries that may require numerous painful surgeries, loss of limbs, serious burns, complicated fractures, brain injuries or long term disability caused by paralysis or loss of use of an arm or leg.
More subtle and difficult to evaluate, except by an experienced personal injury attorney, include pain and suffering caused by the loss of a loved one, recovery after violent experience, such an sexual assault or a long and painful recovery requiring the long term use of pain medications.
Pain and suffering evaluations are usually the most contentious areas of disagreement between the attorneys at Brian Cunha & Associates and the insurance companies.
Ultimately, however, our guide-stick in settling a personal injury case involving pain and suffering is what our attorneys feel that a jury would award the Plaintiff.
Q: What’s contributory negligence?
A: Before a plaintiff is entitled to any money recovery for his personal injuries in Massachusetts and Rhode Island, as in most states, a plaintiff is required to show that the party that caused his injuries was negligent.
However, a defendant and his insurance company may claim the the plaintiff was also negligent, which is referred to as contributory or comparative negligence. A good example is a case in which the plaintiff claims, in a motor vehicle accident, that the defendant ran the stop sign causing the accident, however there is also evidence that the plaintiff may have been speeding. In that case there is claim that the Plaintiff was contributorily negligent.
The practical effect of contributory negligence is that it enters into the negotiations and the insurer will always claim that it lowers the value of the personal injury claim. The reason for the lowering in value is that if the case goes to trial, and, if we use the example posed above, the plaintiff is found 30% at fault for speeding, then any jury award in his favor would be reduced by 30% by the court at the conclusion of the case.
Thus contributory negligence is always an important factor in all negotiations and settlement discussions between the parties.
Q: What’s subrogation?
A: In most cases the medical expenses are paid by third party medical providers such as Blue Cross Blue Shield, Medicaid, Medicare or another provider.
The law provides that the medical insurer is entitled to be re-paid any money from any settlement monies received by the plaintiff. The theory is that the plaintiffs settlement include payment for his medical expenses and that if he receives both the settlement funds and his medical bills are paid by the medical insurer that he will obtain a double recovery.
Much of the effort at Brian Cunha & Associates is aimed at reducing any liens or subrogation claims in order to maximize the settlement for our clients.
Q: How long will it take to settle my case?
A: The two most frequent question asked to the attorneys at Brian Cunha & Associates is what is my personal injury case worth and how long before it settles? Unfortunately, there is no simple answer to this these questions as the timing of the settlement of a personal injury case depends on a number of factors.
When presented with these questions at the start of a case I always tell my clients that a personal injury case is a lot like a ball game; no one knows what the score will be until all nine innings are played and we are in the first inning.
The reason for this is that generally the client is still convalescing, and still treating and no one knows how long it will take to get better, what his medical expenses or lost wages will be, or the full extent of the injuries. As such it is impossible to put a value or time frame on settlement.
With that said, there are certain generalities that can be made. First and foremost is that before any settlement discussions can begin, the plaintiff must have completed his medical treatment or reached what we call a medical end result in that the client won’t get any worse or better.
At that stage, if negligence is clear, the attorneys at Brian Cunha & Associates can begin to have some settlement discussions with the insurance company.
However, the success or failure of those discussions are dependent on numerous factors, the most important of which is the reasonableness of the insurer in evaluating the settlement value of the claim.
In a case with clear injuries and liability, a settlement time frame of between six months and a year and one-half is not unreasonable so long as all other factors are accounted for.
In personal injury cases in which the insurer is unreasonable, damages are unclear or where liability is difficult, the case may require a lawsuit and the timing of the settlement may be delayed until liability or damages are more clearly defined. In this instance, it may take several years or more to get the personal injury case into proper settlement posture.
The final advice is that there in no set time for settlement, it depends on a myriad of factors and like the baseball game, won’t be concluded until all nine innings are played.
At Brian Cunha & Associates we make it our practice discuss all of these factors as your case progresses such that you may make informed decisions regarding the timing and amount of your settlement.