Tag: Accident Lawyer

Accident Cases in Court, Damages in Personal Injury Cases, Motor Vehicle Accidents

Excess Insurance

“My son was seriously injured in a bicycle accident, but I was disappointed with the recovery he received because my lawyer told me there was a problem with insurance coverage. What can I do to help my son?”

All cars are required by law to carry minimun liability coverage for all accidents. Excess insurance is a term used to describe additional insurance coverage for motor vehicle accidents. If the owner/operator of a car purchased an “umbrella” policy, then the “umbrella” policy would afford additional coverage for a motor vehicle accident. If the owner of a vehicle is different than the operator, then the operator may have his or her own insurance coverage in addition to the policy covering the vehicle. If a tractor/trailor was involved in the accident, then sometimes trailors have their own policies different than the tractor which could provide additional coverage for your accident.

If your son’s case is settled, then there is nothing anybody can do.

But if your son’s case is not settled, your attorney must look for all of the available insurance covering an accident to maximize your son’s recovery. Many defendants simply do not have assets worth attaching to collect a judgment. If your son did obtain a large monetary judgment against the driver that struck him, bankruptcy laws will allow the defendant to discharge that debt through bankruptcy. Your son may be in better position if he had settled his case for the available insurance coverage. But your attorney must look for all available insurance coverage.

Medical Malpractice

Res Ipsa Loquitor

“My wife had a minor surgery several weeks ago, but she developed an infection that nearly cost her life. Can I sue the hospital for malpractice?”

If your wife’s infection occurred during her surgery and there were no surgical mistakes that increased the risk of infection, then generally, the answer is no, your wife cannot sue. Infection following a surgery is considered a foreseeable risk of most procedures, and thus, your wife would have no case.

However, if the surgeon left something in your wife to cause her infection, like a surgical sponge, then the hospital and doctor would be liable under a legal theory named res ipsa loquitor. Basically res ipsa loquitor holds people accountable for actions that do not ordinarily occur in the absence of negligence; for actions that are in the total control of the surgeon and hospital; and for actions not due to any conduct of the injured party. Obviously, your wife was under anesthesia so she had nothing to do with anything involving the surgery. The surgeon and hospital were in complete control during the operation. Finally, leaving surgical tools, like a sponge, inside a patient would be considered negligent.

If the doctor leaves a surgical sponge inside the patient, a jury can infer negligence against the doctor and hospital without expert testimony and award damages to the plaintiff in a court case. But each case can be different and more details of the surgery would be necessary to give a better answer.

Accident Cases in Court, Damages in Personal Injury Cases

Monetary Value of Personal Injuries

“How does a judge determine the amount of money to award in a personal injury lawsuit?”

A Court awards “fair and reasonable” compensation for the injuries sustained. This does not really seem like an answer, but the question is too vague to give a better answer. The best I can really do is to briefly explain the process that a court uses to determine monetary damages.

Although a judge can make awards for personal injuries, most cases are decided by juries. In New York, six people decide the amount of the award and only five have to actually agree on a number. The jury listens to testimony, reviews photographs, looks at medical records, and listens to doctors testify about the injuries. After attorneys present all of the evidence, the trial judge reads a set of jury instructions. Jurors go to private room where they talk amongst themselves to discus the evidence and the jury instructions.

The judge instructs the jury to use their common sense to award “fair and just” compensation. There is no magic formula, no schedule of injuries to guide a jury explaining what to award based on the body part or severity of injuries.

Judges have the power to over rule juries to lower outrageous verdicts (called remittitur) or to raise unconscionably low verdicts (called additur).  Appeals courts can also raise or lower verdicts based on prior cases of similar injuries.

This is far from inexact science. That is why many times parties end up settling cases at a figure both sides can live with.