Personal Injury Guide

The period after a serious injury can be devastating. Serious injuries can have life long effects that can leave you and your family in a difficult financial position. If you are informed, the law may protect you. The following is based on Missouri law. The law in other states may be different.

IMPORTANT - This is not a substitute for legal advice. Please see Disclaimer.

1. PERSONAL INJURY LAW
2. RECOVERABLE LOSSES
3. CAR ACCIDENTS
4. OTHER TYPES OF CLAIMS
5. YOUR CLAIM
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1. PERSONAL INJURY LAW
What does Personal Injury law include?
If you are injured because of another person's carelessness, you may have a right to compensation for your injuries. You can be injured in a number of different circumstances. The most common injury is through automobile accidents. However, there are a wide variety of different circumstances where personal injury law applies. These include injury because of a defective product, such as a home appliance or lawn mower. Other examples would include injuries from prescribed drugs because of wrong dosage, defective drug or prescription of the wrong drug. If you fall because of debris on the floor or other dangerous conditions, you may have a right to compensation. There are a wide range of other circumstances such as dog bites, boating injuries, recreational injuries, wrongful discharge from employment and negligence from a professional such as an attorney, doctor, realtor or dentist that may allow you some compensation for the injuries that you have suffered.

Whenever you are injured because someone was careless, you should consult a personal injury attorney and find out about your rights.
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2. RECOVERABLE LOSSES
What losses can I recover?
If you are injured because someone else is careless, you may have the right to be compensated for your injury. You can recover your medical bills, your lost wages, damage to your car and other out-of-pocket loss. Also, physical injury can change your life. It can take away your financial security. The pain can take the joy from your life and make each day an ordeal. It can interfere with relationships and turn your life upside down. You may have a right to compensation for these human damages which are sometimes more devastating than the financial losses.
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3. CAR ACCIDENTS
What do I do after a car accident?
In nearly all cases, you are required to stop your car and identify yourself if you are involved in a accident. If you don't stop, you may be subject to criminal prosecution. You should leave you car as close as possible to the place of impact without obstructing traffic. After stopping, remain at the scene of the accident to aid the injured, protect the scene, gather information and report to the police.

You should exchange information with the other driver including your name, address, phone number, driver’s license number and the name of your insurance company. Also gather the names and telephone numbers of passengers and witnesses to the collision.

Both you and the passengers should consider seeing a doctor after the accident. The doctor may recognize injuries, sometimes serious, that are not apparent to you.

Notify your insurance agent as soon as possible after an accident. Your insurance company may have grounds to deny coverage if you fail to give prompt notice of the accident.

If you or anyone else was significantly injured in the accident, you should consider calling a personal injury attorney. He or she can advise you about your rights and responsibilities. The sooner you call a lawyer, the better, since witnesses may forget the details of the accident.
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What about the damage to my car?
If your car is damaged in a wreck and the other driver is at fault, then the liability insurance company insuring the negligent driver should pay for the damage to your car. If the damage can be repaired, then the insurance company has an obligation to repair the car to its original condition. If the car cannot be repaired, then the insurance company has the obligation to pay you the full value of your car. If you get an affidavit from the insurance company, it may reduce or eliminate the amount you owe in sales tax when you purchase a replacement car.

If the other driver does not have insurance, or if there is a problem settling your claim with the insurance company, then your own insurance company should pay for the damage to your car if you have collision coverage. You must pay an additional premium for collision coverage and not every policy has this coverage.

Sometimes there is a dispute about the amount the insurance company should pay to replace a car. The insurance should pay you the fair market value of the car. This is the amount of money it would take you to purchase the same car as a replacement. There are a number of places to get information about replacement value. The normal sources of information include your banker, a car dealer, "blue books" found at the library or a bookstore or on a number of web sites that give used car values.
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Will insurance pay my losses?
Overview of insurance coverage
There are a number of different types of insurance that may provide help to you if you are in a car accident.

Your own insurance policy may provide limited help for paying medical bills for you or anyone in your car, regardless of who was at fault in causing the accident. Also, even if the owner of the car did not have medical payments insurance, you may have medical payments insurance on your car that will help you with your medical bills, even if you were not in your car at the time you were injured.

Your health and accident insurance through your work may pay your medical bills. Under some circumstances, you may have an obligation to repay the insurance company if you are paid by the negligent third party.

If you were injured by another driver who was careless, then the insurance company of the careless driver has an obligation to pay for your medical bills.

If the negligent driver who injured you did not have insurance or did not have enough insurance, then your own insurance company may be responsible for paying your medical bills under your uninsured motorist coverage or underinsured motorist coverage.

If you are eligible for Medicare benefits, then Medicare is responsible for paying your medical bills. If Medicare believes that another party is at fault, Medicare may delay paying your medical bills to see whether the insurance company of the careless driver will pay your bills. If Medicare does pay your bills, they may require you to sign an agreement that you will reimburse Medicare if you are paid anything by the negligent driver.

If you are eligible for Medicaid benefits, then Medicaid should pay your medical bills. However, as with Medicare, they may delay paying your bills to see whether the insurance company of the careless driver will pay your bills, or they may pay your bills but require you to sign an agreement that you will reimburse Medicaid if you recover from the negligent driver.

See separate topics for each kind of insurance that would give you a more detailed explanation.
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Insurance of the other driver
If the driver of the other vehicle was at fault or partially at fault in causing your injury you may be able to recover damages from the insurance company of the other driver. In Missouri every owner of an automobile is required to have at least $25,000.00 of insurance to cover each person injured in a wreck or a total of $50,000.00 to cover all people injured in the wreck. Each owner is also required to have at least $10,000.00 of insurance to cover the damage to your car.

Some times the insurance company of the other driver will voluntarily pay your medical bills and your lost wages in installments and delay the final settlement until the amount of your total damage is known. However, most insurance companies will delay making any payment until the final settlement at which time they will require that you release them and the other driver from any further liability. If the insurance company delays any payment until the final settlement this can cause a great hardship. It may even interfere with your medical care if you do not have other insurance to pay your medical bills.

The insurance carrier of the other driver may also owe you for the damage to your car. The insurance company will settle the claim for damage to your car and leave the claim for personal injury open. When you settle the claim for damage to your car, the insurance company may ask you to sign a receipt. Make sure that the papers you sign do not release your personal injury claim and you may want to consult an attorney before signing any papers.
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Medical payments coverage under your car insurance policy
If the car you are in has insurance and if that policy has medical payments coverage, then the insurance company insuring the car that you are in may have to pay your medical bills. You have to pay an extra premium for medical payments coverage, and not every policy includes this benefit. Also, the amount of medical bills that must be paid is limited. Look at the policy to see whether medical payments coverage is included and the limit on payment of medical bills.

Also, you may have medical payments coverage under your own insurance policy. You are entitled to recover medical payments coverage under your own policy even if you are not in your car at the time you are injured.

For example, if the car in which you were injured has medical payments coverage and you also have medical payments coverage on your own vehicle, you may be able to recover under both policies if your medical bills are more than the limit of one of the policies.

Also, if you are a pedestrian, you may be able to recover your medical bills under your car’s medical payments coverage.

Generally, if you are a member of a family that has insurance that contains medical payments coverage, you are also covered, even if you are not named as an insured in the policy.

If you have any questions about whether an insurance policy will cover your loss, you should contact a personal injury attorney.
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Uninsured motorist coverage
In Missouri every owner of a vehicle must carry some insurance on his car, including uninsured motorist coverage. In uninsured motorist coverage, your insurance agrees to pay you certain benefits if you are injured because of carelessness of another driver who does not have insurance. In Missouri a driver who leaves a scene of an accident, and cannot be identified, is considered to be an uninsured motorist. This includes a driver who hits you at the scene, such as a hit and run motorist, and a driver who causes you to have a accident, without contact. The uninsured motorist coverage must pay your medical bills and lost wages. In addition, it may be responsible for pain and suffering and other intangible human damages.

Uninsured motorist coverage will not pay for the damage to your car, but you may have collision coverage which will pay for the damage to your car.
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Underinsured motorist coverage
Your own insurance policy may provide underinsured motorist coverage. You must pay an additioanl premium to purchase this coverage and you can tell whether you have this coverage by looking at your policy or calling your insurance agent. Underinsured motorist coverage furnishes you protection if you are injured by a careless driver but the careless driver does not have enough insurance to pay your enire claim. If the limit of your underinsured motorist coverage is greater than the policy limit of the driver that injured you, then you may be able to recover additioanl benefits from your own insrance company under your underinsured motorist coverage.
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Regular medical insurance coverage
Generally your health and accident insurance may have an obligation to pay your medical bills. There is, of course, often a deductible before the bills will be paid. Also, some insurance policies provide that you must reimburse the insurance company if your medical bills are paid later by the insurance company of the negligent driver that hit you. Sometimes the requirement for reimbursement is unenforceable, and you should contact a personal injury attorney if you have questions about this.
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Medicare coverage
Medicare will pay your medical expenses in a car accident, under most circumstances. However, there are a number of complications. If your injuries were caused by the negligence of another driver who has insurance, Medicare may refuse to pay your medical bills until you have tried to collect the medical bills from the negligent driver or his or her insurance company. Sometimes, this results in a long delay where the medical bills are not paid. If Medicare does pay the medical bills, it usually requires you to sign an agreement that you will reimburse Medicare if your medical bills are later paid by the negligent driver or his or her insurance company.

Under some circumstances, it is possible to pay Medicare less than the full amount.
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Medicaid Coverage
If you are eligible for Medicaid benefits, then Medicaid may have an obligation to pay your medical bills if you are injured in an accident. However, there are some complications. If Medicaid believes that your injury was caused by the negligence of another driver, they may delay paying medical bills until you have attempted to collect the medical bills from the careless driver. If Medicaid does pay your medical bills, they may make ask you to sign an agreement to reimburse Medicaid if you are successful in recovering your medical bills from the careless driver that injured you.

If you recover payment from the negligent party that injured you, there is a procedure to reduce the amount of the payback to Medicaid if full repayment to Medicaid would cause a financial hardship to you.
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No insurance on the other driver
In Missouri every owner of an automobile is required to have at least $25,000.00 of insurance to cover each person injured in the accident or a total of $50,000.00 to cover all people injured in the accident. If the owner of the vehicle does not have the insurance required by Missouri law, then you may be able to recover benefits from your own automobile insurance policy under your uninsured motorist coverage. Every Missouri insurance policy should include uninsured motorist coverage.

Also, you can purchase additional insurance coverage at an addition premium, called underinsured motorist coverage. If the other driver has insurance but it is not enough to cover your damages, then you may be able to recover additional damages from your own insurance company under the underinsured motorist coverage. There are a number of legal issues involved, and you should contact an attorney for further advice.

If the party that injured you does not have enough insurance to cover the damage caused by his or her negligence, you have a right to recover your damages directly from the person that injured you. There are a number of legal issues to be considered in deciding whether it is practical to collect the uninsured damages from the negligent driver, and you should seek legal advice on this matter.
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No fault insurance
Some states allow you to recover some of your damages from your own insurance company regardless of who is at fault. Missouri does not have a no-fault insurance law, but if you are injured in another state, you may be entitled to recover benefits under the no-fault insurance laws of that state.
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4. OTHER TYPES OF CLAIMS
Medical Malpractice
If you are injured because of the negligence of a doctor, hospital or other healthcare professional, you may have a right to recover damages caused by that negligence. Doctors and other medical care providers cannot guarantee the results of their medical care, and sometimes there are poor and unexpected results. Sometimes the poor result is an unavoidable risk and the doctor or medical care provider is not necessarily at fault simply because the medical care was not successful. The doctor or medical care provider usually is not legally responsible unless he or she violated an established standard of medical treatment. It is usually necessary for a case to be evaluated by another doctor before your lawyer can give you any clear advice on whether you have a possible medical negligence claim.
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Slip and Fall Injuries
The owner of a business must use reasonable care to keep the premises safe. A business owner must regularly inspect his store to make sure that no dangerous condition exists. If there is a dangerous condition, the business owner must either correct the dangerous condition or warn customers about the dangerous condition. If a customer is injured because of a dangerous condition, he or she may have a right to compensation for the damages suffered because of the dangerous condition. In most cases you must show that the business was negligent or careless in creating the dangerous condition or failing to discover the dangerous condition. Therefore, it is sometimes necessary to have detailed information about the circumstances and details of the dangerous condition.

The most common claims for injuries in a store include a fall because of a substance on the floor, tripping over objects that are in unexpected places such as merchandise that has fallen off the shelf, and falls because of slick or uneven surfaces.
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Pedestrian Accidents
If a pedestrian is injured as a result of negligence of a driver, then the pedestrian may be able to recover damages from the driver or owner of the vehicle. The damages that can be recovered are generally the same damages that could be recovered if you were an occupant of a vehicle. Also, if the driver that hit you did not have insurance, or if you are the victim of a hit and run accident, you may be able to collect benefits under your own uninsured motorist coverage.
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Injuries to Children
When a child is injured, he or she has the same rights to recover damages as an adult. This applies whether the child is injured in a car accident, bitten by a dog or a number of other circumstances. It is an important responsibility of a parent to make sure that the child's legal rights are protected. In some circumstances, the court can appoint a parent as the representative for the child to take legal action.

When monetary damages are recovered for a child, the money must be spent for the benefit of the child, and sometimes the court will require that the money be preserved for the child until he or she becomes an adult. Sometimes the court supervises or oversees the management of the money until the child becomes an adult.
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Wrongful Death
The unexpected death of a loved one is a tragic event. If the death was caused by the negligence of others, the law allows the family to recover monetary damages. This applies to accidents such as car accidents, medical negligence claims and claims for a death because of unsafe products. Money cannot replace the life of a loved one, but monetary compensation may provide the family with financial security in the future. Such suits also help to make unsafe companies and individuals act in a safe and more responsible manner to prevent tragedies in the future. There is clear statute of limitations for wrongful death claims and for other claims, so it is generally a good idea to contact an attorney as soon as possible.
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5. YOUR CLAIM
Is there a time limit to file my claim?
Every state has certain time limits governing how long a person has to file a lawsuit. In Missouri the length of time you have to file your claim depends upon the type of claim. For example, generally you have five years to file a lawsuit arising out of a car accident. However, there are many exceptions, some of which may reduce the time to as short as one year. Medical negligence claims generally have a two-year statute of limitations, however, under certain circumstances the statute of limitations may be longer, or can even be shorter. Wrongful death claims generally have a 3-year statute of limitations. Also, there are different statutes of limitations for minors, and statutes of limitations can be extended if the defendant is out of the state. Because there are so many rules and exceptions, the best thing is to contact an attorney as soon as possible to get expert advice. You should never assume that the statute of limitations has run without getting advice from an attorney, because there are so many exceptions to the general rules.
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What is the value of my claim?
If you have been injured by the carelessness of another, you may be able to recover for your damages. Many factors must be considered in determining the value of your claim including the seriousness of your injury, whether you will have permanent disability, medical expenses incurred, lost wages, future loss to your earning capacity, the pain and suffering you have endured and how the injury will affect your future life. Also, the type of negligence by the defendant that caused your injury is sometimes very important. If your damage was caused by recklessness or intentional wrongdoing, that may increase the value of the claim. On the other hand, if the defendant was not seriously at fault or if the person making the claim was partly at fault, this can reduce the value of the claim. Consultation with an attorney experienced in the area of personal injury law can help you assess the value of your claim.
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What if I am partially at fault?
For most types of claims Missouri has what is called comparative fault. This allows you to recover some damages from another party who was also negligent in causing your injuries, but the amount you can recover may be reduced because of your negligence.
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Can I settle my claim?
Most claims are settled before suit is filed and, of the few that are filed, most of those are settled before going to trial. Your attorney has a duty to tell you of any offers to settle made by the other side, and the decision about whether to settle must always be made by the client. The attorney representing you can make recommendations, but the decision is always yours.

The outcome of trials, particularly before juries, is very difficult to predict. Therefore, an experienced attorney can advise you about the strengths and weaknesses of your claim and can give you an opinion about the chances of recovery at trial. Juries are unpredictable, and it is never possible to guarantee the outcome. Because of this uncertainty, an experienced attorney will almost always explore the possibility of settlement with the other side, but the decision about whether to settle is always the client's.
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Will it be necessary to file a lawsuit?
This depends upon the circumstances of your case. Lawsuits are expensive and time-consuming and if a fair settlement can be achieved without filing a lawsuit, this is generally best. However, there are many situations in which it is in the client's best interest to file suit. If all of the facts about how the car accident or other injury occurred are not known, it is often necessary to file a lawsuit to get complete facts. Also, if an agreement cannot be reached about the amount of the settlement, it is necessary to file a lawsuit and sometimes have the Judge or jury decide what is a fair award for a person's injury. These are two examples. However, there are other reasons why it is sometimes necessary to file a lawsuit when the case cannot be settled quickly.
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What will happen if I file suit?
Lawsuits are often slow, frustrating and expensive, so many personal injury claims are settled without filing a lawsuit. After the lawsuit is filed, the parties usually continue to try and reach a settlement, and sometimes a settlement is reached even after the trial begins. If a lawsuit is filed, the parties begin by sending interrogatories (written questions) to the other side to discover the important facts. Also, depositions are sometimes taken. A deposition is a statement given to the attorney on the other side, under oath and transcribed by a court reporter. Your attorney would always be with you in a deposition.

If you are claiming a personal injury, you usually have to disclose all of the medical records related to the injury and any past medical records that relate to your claims. You may also have to disclose income tax returns, information about past employment and similar personal information. You may also have to be examined by a doctor, selected by the other party.

If your case has to be tried, it can be heard either by a jury or by the Judge (if both parties consent). The lawyers on both sides will call witnesses who have information about how the injury occurred and the extent of your injury. This will usually include medical testimony from at least one of the doctors that treated you. After hearing all of the evidence, the jury or the Judge would decide what award was fair and reasonable.

There are complicated rules governing the conduct of a lawsuit and your attorney's job is to present the evidence that will help you win your case, while following the rules of conduct.
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What about my attorney fees?
Contingency fee
In most areas of the law, attorneys bill their time on an hourly basis. However, most attorneys represent injured clients under what is called a contingency fee agreement. Under a contingency fee agreement, the attorney is paid only if the client recovers on the claim. The payment is a certain percent of the client's recovery.

Some people criticize the contingency fee agreement, but many people who are injured are unable to work and have no income or assets. Most injured people would simply be unable to hire an attorney to represent them and many people would be unable to enforce their rights. Also, if the attorney does not get paid unless he or she is successful with the claim, it helps assure that claims without merit are not filed. Also, it encourages the attorney to work diligently on claims that do have merit, because the attorney will not be paid unless successful with the claim.
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How are fees calculated?
In most areas of the law, attorneys bill their time on an hourly basis. Generally, attorneys representing an injured party in a personal injury suit will consider taking the case on a contingency basis. A contingency agreement means that the attorney will only be paid for his or her work based on a certain percentage of the money awarded to the client. Contingency fees are risky for a lawyer because the lawyer may not get paid for his or her time and effort if the client is not successful.

Many people have recently criticized the contingency fee agreement because they think it encourages lawsuits. However, the contingency fee agreement serves a useful purpose. Many people who are injured are unable to work and without income or assets. Financially they are simply unable to hire an attorney and pay an hourly fee. The contingency fee opens the court to injured people who are without financial means and give them a way to enforce their rights. Also, the contingency fee tends to weed out cases that have no merit since the attorney does not get paid unless the claim is successful.
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Expenses in a personal injury case?
In a personal injury case there can be a number of out-of-pocket costs that are necessary to be successful. The expenses include filing fees, long distance telephone charges, court reporter fees and expert witness fees. Under a contingency fee agreement, the attorney may agree to advance these out-of-pocket expenses with the understanding that the attorney will be reimbursed when the claim is settled. When you enter into an attorney fee agreement, you should discuss payment of expenses with the attorney.
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Buchanan & Williams, P.C.
Corporate Center
1105 E. 32nd St.
Suite 5
P.O. Box 1582
Joplin, MO 64802
(417)623-0900
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