Bodily Injury
A bodily injury claim, sometimes called a personal injury claim, is a generic term for many types of cases in which the Plaintiff is a person who is injured in his or her body or health. Doctors call this morbidity or mortality, meaning that the person has suffered some physical harm or has died. The fact of injury or death is the common thread.
But, there are many legal landscapes in which some compensation for bodily injury or death can be obtained. These are discussed in more detail on the next page, Types of Injury Cases. But, the landscape is terribly important to understand since the nature and amount of recovery possible depends on it.
Torts is a term used in the law to describe a broad category of civil wrongs that are not grounded in contract law. Commonly understood torts are assault, battery, negligence, trespass, slander and libel, conversion, fraud, and intentional infliction of emotional distress. There are torts that result in bodily injury, most commonly negligence. Negligence is the failure to exercise ordinary care under the circumstances.
Generally, when bodily injury results from a tort the law requires that the offending parties compensate the injured parties for all of the injury that is caused by the wrong. Therefore, the elements of damage for which compensation can be awarded are for past and future pain & suffering (physical, mental, and emotional), loss of earnings or earning capacity, the reasonable cost of treatment, and any other monetary damages that can be proved to flow from the injury caused by the negligent conduct.
There are exceptions. Most notably the exceptions, when they do occur, are found in the areas of medical malpractice, workers compensation and wrongful death. In a significant number of States, recovery in these areas of tort law are limited by statute.
In California, recovery for non-economic damages (pain and suffering) in medical malpractice cases is limited to $250,000. It has been that way since the 1970’s when an amalgam of laws known as MICRA was passed. Even then, this cap on non-economic damages affected adversely those most seriously injured, since the cap had no affect on those with relatively minor injuries. MICRA limited recoveries in other ways a well. Today, since $250,000 buys much less today than it did in the 70’s, it is even more unfair to those persons who are seriously injured.
MICRA limited economic damages, i.e. medical and hospital expenses to those not covered by health insurance. Traditionally in the common law this approach was rejected by the judges since the approach rewarded the tortfeasor (the perpetrator of the wrong) for the foresight of and investment made by the victim in having medical insurance coverage. MICRA also limits the amount that attorneys can charge in such cases to levels below what is commonly charged in, for instance, a car accident case. Given the fact that professional negligence can rarely be proved without expert testimony, these cases are more expensive to prosecute, and the combination of the limitations on fees and the costs to prosecute have made many cases non-economic from an attorney’s point of view, leaving many victims without any effective remedy for the wrongs done to them.
Worker’s compensation laws were passed by State legislatures to protect employers from the potential liability in cases of on the job injuries. The trade off is strict liability in exchange for very limited awards to those injured. Many persons injured on the job do not know that they have the right to legal representation and to the contest compensation offered in a worker’s compensation case. The fees too are very limited ranging typically from 10-12% of the amount recovered. These cases are adjudicated in the Worker’s Compensation Appeals Board. Even more importantly, may workers do not realize that when an on-the-job injury occurs there may be a basis for tort liability (negligence/products liability) which can be established against a third party not protected as an employer by the worker’s compensation laws.
Wrongful death is an area of tort law that varies widely from State to State. That is because it is solely a creature of statute. At common law, an injury case died with the injured party. In States like California, the lawsuit belongs to specifically designated persons, basically a surviving spouse and children, and being none, a parent. All eligible plaintiffs must be joined in the suit. Recovery is limited to economic loss and what is described in the law as the Plaintiffs’ loss of the society, care, comfort, love and support of the decedent.
When there is a wrongful death case, a companion survivor case can be brought. It seeks compensation to the estate of the deceased for all damages caused to the decedent, except that in States like California, no award may be made for the decedent’s pain and suffering. The ability to be awarded damages for the decedent’s pain and suffering dies with the decedent. In other States, like New York, damages for the decedent’s pain and suffering are compensable.
Important Advisory: Mitchell Roth is licensed to practice law in the State of California only. His practice and office is located in that state. Anyone seeking legal services of Mitchell Roth or any attorney doing work for the firm is coming into the State of California and all services rendered will be rendered in the State of California, only. |
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