How Much Money is My Injury Worth?
by Jonathan C Reed
Three factors determine how much your injury case is worth.
First: What are your chances of winning the case if it were to go to jury trial? Except in the case of being hurt by a defective product (and a few other uncommon exceptions) the injured party has to show that the defendant was careless (negligent) and that this carelessness (negligence) caused the injury. (Defective products are discussed in a separate section.) Often, the person or company being sued will claim that the victim herself was careless. For example, there is a collision between two cars and each driver claims the other driver was at fault. Or the plaintiff trips over a crack in walkway and the company being sued claims the plaintiff should have been watching where he was walking instead of talking on his cell phone.
In a situation where it is possible that the jury could find both the plaintiff (the person suing for being hurt) and the defendant negligent, Nevada law says that if the plaintiff is more negligent than the defendant, the plaintiff is out of luck. The jury will typically be asked by the judge to apportion negligence between the plaintiff and defendant. If the jury says the plaintiff is more than 50% at fault the defense wins. If the jury says that plaintiff was partly at fault but no more than half at fault the plaintiff gets her damages minus the percentage that the jury says she is at fault. For example, if the plaintiff and defendant are equally at fault, the plaintiff gets half the damages she would be entitled to if it had all been the defendant's fault. If the plaintiff is one third at fault and the defendant two thirds at fault the plaintiff gets two thirds of the damages she would get if the defendant had been entirely at fault.
This Nevada law, called comparative fault, is different than the law in California. In California even if the plaintiff is more than half at fault the plaintiff can have her damages reduced by the percent she is judged by the jury to be at fault. For example, in California if the plaintiff were 90% at fault and the defendant 10% at fault, the defendant would have to pay the plaintiff 10% of the damages she would get if the defendant were entirely at fault.
Thus, a monetary evaluation of an injury case first involves estimating the chance of winning and making allowance for any possible reduction of the award due to the plaintiff having contributed to her own accident.
Second: As a practical matter there must be some chance of collecting money from the person or company being sued. Let us suppose that Tom is badly injured in a car wreck through no fault of his own and that Tom's case would ordinarily be worth $200,000. Let us also suppose that Tom does not have uninsured/underinsured motorist coverage (discussed in a separate section). Finally, let us suppose that the driver who hit Tom was driving a late model Cadillac and has $100,000 in coverage for this collision. In this situation typically the insurance company for the Cadillac driver will offer Tom or his attorney the $100,000 policy limits early in the case. If Tom refuses this offer, typically the Cadillac driver will refuse to add any of his own money to the settlement offer.
Now Tom and his attorney must decide whether to take the bird in the hand or spend a lot of money going to trial to get a big judgment. If they get the big judgment, the Cadillac's driver's insurance company will still only offer the $100,000 and Tom and his attorney will have to try and collect the rest form the Cadillac driver. Typically, in a case like this Tom's attorney, upon getting an early offer of the $100,000 policy limits from the Cadillac driver's insurance company, will hire a private detective to find out what he can about the Cadillac driver's assets. This information will then be used by Tom and his attorney to decide if they should settle for the policy limits or take the case to trial and get a larger judgment.
Third: There are specific rules for placing a monetary value on damages. Here are some of the rules:
Causation must be Proved: The plaintiff has to prove that the defendant caused his injury. After a car accident the plaintiff might have medical tests to show that he now has a herniated (bulging) spinal disc which is causing him great back pain. However, the medical tests that show the spinal injury don't tell when the injury happened. If the plaintiff has any prior history of back pain there will be the issue of whether the car accident caused the injury. Or, if Mary submits to cosmetic surgery and dies on the operating table most people might think this is "an open and shut case" against her doctor(s). And most attorneys who do medical malpractice would be happy to talk to Mary's family. But, it does occasionally happen that a patient dies during surgery because of some unusual circumstance other than medical negligence. The attorney hired by Mary's family will have to prove through expert review of the records (and possibly an autopsy) why medical negligence caused her death.
Under Nevada law, causation is proved if the plaintiff shows that it is more probable than not that the defendant's negligent conduct caused the injury. Strictly speaking this means that if the jury thinks there is a 51% chance that the defendant's action caused the injury and a 49% chance that the defendant's action had nothing to do with the injury, then the jury should decide for the plaintiff and give the plaintiff a full measure of damages. My trial experience tells me that juries usually don't like to take money from one person and give it to another unless they are pretty sure the defendant injured the plaintiff. The jury is likely to be influenced in its causation determination by how much they like or dislike the parties. For example, in a medical malpractice case jurors often come to jury duty somewhat biased in favor of the doctor defendants. However, I am writing this page after the scandal about re-used syringes spreading disease in several Las Vegas medical clinics. It may well be that following this scandal jurors will come to jury duty less inclined to give doctors the benefit of the doubt. In theory a case should not be decided by the jurors' prejudices and in theory the process of jury selection is supposed to select only totally unbiased jurors. In real life prospective jurors often say what they think they should say not what they feel when they are being questioned in a courtroom.
Proof of Lost Wages or Income: Proof of lost wages requires proof that the accident caused an injury that prevented work as well as proof of actual lost wage or income. People who have been receiving their pay "under the table" and not paying income taxes on their wages or income usually cannot make a decent lost wage claim. The defense will demand authorizations to see prior income tax returns and if the plaintiff refuses the plaintiff will not be allowed to make a lost wage/income claim.
Time spent in medical treatment may or may not equal lost wages. If Bill works 9-5, M-F and took 72 hours of sick leave to get medical treatment that was only offered during those business hours, that will count as lost wages as long as the medical treatment was reasonable and necessary for his injury. But, if Dr. Jones, a dentist, has evening and weekend office hours and spends 72 hours getting medical treatments the defense will ask whether he could have scheduled his patients around his medical appointments so as to avoid an income loss.
Of course, being totally, even if only temporarily, disabled from work will support a wage/income loss claim.
Medical Expenses: Because most medical bills are only paid by insurance companies we have a goofy system in which health care providers bill aggressively and insurance companies chop bills aggressively. However, the law in Nevada is that if a case goes to trial the actual bill (not what the doctor or hospital accepted from the insurance company) is admitted into evidence as long as the plaintiff's attorney can get a doctor to say that the bill is reasonable and customary. As a plaintiff you want your insurance to pay your injury medical bills if you have insurance because the insurance company will chop the bills but if you were to go to trial the actual bills would go to the jury as damage items.
(On August 18, 2011, the California Supreme Court in the case of Howell v. Hamilton Meats, issued a landmark decision in which it said that the amount of medical bills reported to the jury could not be higher than the amount paid by the insurance company plus the patient's co-pay. In other words, what was paid and accepted as full payment is the measure of medical expense, not the actual bill. The California Supreme Court opinion has no legal effect in Nevada cases, but we expect Nevada defense attorneys to urge a similar opinion from the Nevada Supreme Court although that is off in the future.)
Agreeing to give your doctor a lien on your injury case so that the doctor will treat you is a bad idea if you could get those bills paid by insurance. This is because a doctor who takes a lien on a case will usually not give any discount on his bill. However, if you don't have insurance this may be the only way you can get treated.
Contact Information:
Mail
Law Office of Jonathan C. Reed
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Las Vegas, Nevada 89146
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