While it might seem like it is obvious that a personal injury actually means being physically harmed, there are a fair number of people who think just because they “may” have been harmed they are entitled to damages.
“Almost being hurt does not count in a personal injury case,” explained Arkansas super lawyer Michael G. Smith of Little Rock. Only an actual injury is capable of being the foundation for a personal injury lawsuit that claims damages for the particular injury in question. To be perfectly clear about what constitutes a personal injury, the true definition is when a person is actually injured and someone else caused the injury (was at fault.)
What personal injury cases really boil down to is that an actual injury has to have taken place. “People are not entitled to damages just because they might have been injured. Could have, should have, would have just won’t cut it in court,” added Smith. And, as a matter of fact, not every case will result in compensation being awarded. While this may come as a surprise, since the plaintiff may have been expecting an award, the fact is that some states give the nod to the doctrine of contributory negligence, while others follow the rules of comparative negligence.
“The doctrine of contributory negligence means that if the plaintiff is even slightly at fault in the case before the court, in other words contributed towards the accident that caused their injury, they are not entitled to compensation,” outlined Smith. If the plaintiff lives in a state that follows the rules of comparative negligence, then fault may be apportioned according to fault assessed in the case. For instance, if a plaintiff were assessed as being 60% at fault for their own injury, they would be able to recover 40% of the total assessed damages.
This next interesting factor is one that a lot of people tend to ignore at their own financial peril. A plaintiff has to get to the point in his or her healing called the maximum medical healing, before settling a personal injury claim. Here is why not settling immediately is the best way to handle a personal injury case.
Insurance companies are notorious for approaching a victim right after an accident and offering them a settlement. Many of them are downright aggressive about it and some people do settle, then discover later that their injuries were worse than they appeared. “They now have no way to claim damages in court and may wind up having to pay for therapy and other medical expenses out-of-pocket because they settled too soon,” commented Smith, who has seen this happen in many instances.
If a victim of an accident is approached by an insurance company and offered a settlement immediately after an accident, the best advice is to not settle the case without speaking with a highly qualified personal injury lawyer, like Little Rock injury lawyer, Michael Smith. Settling too soon may be one of the worst decisions ever in terms of the potential compensation that may be available from the courts.
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