The value of your personal injury case depends on two main factors: fault and damages. Many car wrecks don’t involve an analysis of fault as that is not a true issue, but insurance companies often try to place blame on you if the accident was somehow preventable. Kansas comparative fault laws provide that an injured person cannot recover damages if their fault is 50% or higher but if the person’s fault is below 50%, that person’s damages get reduced by their fault. It is common at some point for the insurance company to admit fault or to “accept responsibility” for the collision and then you don’t have to worry about a fault analysis.
The calculation of damages really involves adding up each type of damage: past medical expenses, future medical expenses, past wage loss or other economic loss, future wage loss or economic loss, and past and future noneconomic losses. Each element of damage requires proof and is scrutinized by insurance companies. In Kansas the burden of proving damages requires proof the damage was caused and related to the collision and the burden of proof is on the injured person. If you can’t prove it, you lose.
Regarding medical bills, a few years back the Kansas Supreme Court issued a decision known as Martinez, which greatly reduced an injured person’s claim for medical bills when the medical bills have been paid by health insurance, Medicaid or Medicare, or when the medical bills get “written off”. A common defense to the claim for medical bills is for the introduction of evidence regarding how much of the bills won’t have to be paid due to these write-offs. Sometimes as much as 90% of the bills don’t have to get paid, and that can cost the injured person 90% of the value of the gross medical bills. An injured person can put on evidence of the full bills while the defense shows the jury the write-offs and the jury has a question of fact to decide: Do we pay the full bills or just the bills really owed after write-offs? The unfairness of this law is it allows a negligent person who injures someone to benefit from the write-offs, which often are a result of payments made by the injured person to buy health insurance. Why should the negligent person, sometimes a drunk driver or person texting on a cell phone, get this benefit?
Proof of wage loss generally requires a physician or healthcare provider to give a written “off work” note to confirm dates of absences from work as well as proof from the employer as to the exact amount lost.
Proof of future wage loss can involve hiring experts. Experts such as vocational specialists can quantify how permanent restrictions will prevent the injured person from certain career opportunities and show how the injured person may have difficulty finding employment. Experts such as economists or accountants can total up these future losses.
Pain & Suffering
The most difficult damages to quantify are the past and future noneconomic losses. These losses involve the injured person and friends and family describing what that person went through or what that person deals with on an ongoing basis due to the injury. These damages are commonly referred to as pain and suffering, accompanying mental anguish, disability, disfigurement, and many other terms like inconvenience or loss of enjoyment of life. Obviously the worse the injury, the more these damages are worth.
In the old days, insurance companies would pay 2 to 5 times the “specials” for these damages. The specials were the out of pocket losses including medical bills or wage loss. Currently, insurance companies rarely use this type of analysis. The insurance companies now look at all kinds of things, even unexpected issues, like credit ratings/reports, criminal records, prior claims history, and, of course, they review medical records to see what the doctor’s note said as to how bad the injury was.
To figure out value, you have to add up each category of damage, and if comparative fault is involved, the damages are reduced by the injured person’s fault.
This post is highly summarized and there is a lot more that goes into valuing the case—like whether the injured person will make a good appearance in front of a jury.
Call us and we would be happy to give you our thoughts on the value of your case!