If you have been injured by someone else’s negligence, it leaves you in the difficult position of facing medical expenses and the possibility of lost earnings while coping with the painful emotional aftermath of the situation. Further, you may have no idea where to turn for the help you need. Having a better understanding of how the personal injury claim process works in Texas, however, is a good place to start.
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Common Types of Personal Injury Claims
Because personal injury claims are based on negligence, they can come in any number of forms, but some of the most common include:
Traffic accidents of every kind, including car, truck, motorcycle, bike, and pedestrian accidents
Slip and fall accidents and other kinds of premises liability claims
Product liability claims (caused by faulty commercial products)
Additionally, wrongful death and medical malpractice claims are not only quite common but are also very similar to personal injury claims.
The Elements of Your Personal Injury Claim
In order to bring a successful personal injury claim, you will need to demonstrate that all the necessary elements are present.
You Were Owed a Duty of Care
The first order of business when it comes to establishing a personal injury claim is establishing that the at-fault party owed you a duty of care, to begin with. A simple example of this duty of care is the care we owe others when we get behind the wheel of our vehicles. When we drive, we owe everyone else on the road a duty of care that includes adhering to all the safety rules of the road and proceeding with the necessary caution. As motorists, we owe a duty of care.
That Duty of Care Was Breached
The next element of your personal injury claim is that the duty of care owed to you was breached. Continuing with the driving example, if the at-fault party in your claim engaged in negligent driving, he or she breached the duty of care he or she owed you. Common examples of driver negligence that often form the basis of personal injury claims include:
Distraction
Exhaustion
Impairment
Excess speed
Aggression
The Breach in the Duty of Care Owed Caused Your Accident
The at-fault party’s negligence must be the direct cause of your injury-causing accident for this element of your personal injury claim to be met. In the example of the car accident that we are using, this means that the driver’s negligence is directly responsible for the accident that leaves you injured.
You Suffered Legal Damages
In order to bring a successful personal injury claim, you will need to show that the injuries you suffered led to actual legal damages (or losses). These can include physical, financial, and emotional damages.
Your Legal Damages
The legal damages you suffer as a result of someone else’s negligence in your personal injury claim can be considerable, and they generally break down into basic categories.
Medical Costs
You were injured in an accident that someone else’s negligence caused, and you are facing medical expenses as a result. Serious injuries can take a significant amount of time to heal, and because they can lead to secondary health concerns and complications, your medical needs can be ongoing. Common medical expenses include:
Emergency care and transportation
Surgery and aftercare
Hospitalization
Medical treatments, procedures, tests, and diagnostics
Treatment and care from doctors, medical specialists, and other medical professionals
Pain management
Rehabilitation
Physical therapy
Occupational therapy
Adaptive physical devices
Home health care
Prescription medications
Lost Earnings
While you heal from the injuries you have sustained, you will very likely be off the job and may experience lost earnings. The fact that your medical bills continue to mount does not help the situation. If your ability to do your job or to continue advancing your career is affected, you could also face a decline in your earning potential, which can lead to a lifetime of financial loss over time.
Physical and Emotional Pain and Suffering
The trauma and fear associated with being injured in an accident that was caused by someone else’s negligence can be immense, and the effects of your pain and suffering can be ongoing. In addition to the physical pain you endure, there can be lingering emotional effects that make moving forward toward complete recovery challenging. These effects can include:
Severe mood swings
Difficulty modulating emotions
Bouts of depression
Increased anxiety, which can include anxiety attacks
Sleep difficulties that can include nightmares and night terrors
Tendency to self-isolate and/or push others away
Crying jags
Self-medication, such as increased drinking
Fear of getting back behind the wheel (after traffic accident)
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Bringing Your Timely Claim
Even if all the elements of your claim are firmly established, you do not have a limitless amount of time in which to file a lawsuit. In fact, the statute of limitations (or the time restriction) in Texas is a relatively short two years. This means that you have two years from the date of your injury-causing accident to file a personal injury lawsuit against the at-fault party, and it is important to note that – with everything you have going on – these two years can pass in what seems like the blink of an eye. Bringing a successful personal injury claim involves establishing fault, calculating your complete damages, and negotiating with the involved injury company for fair compensation – all of which can take a considerable amount of time. Because you do not want to suddenly realize that your opportunity to obtain the just compensation you need to reach your fullest recovery has passed you by, reaching out to an experienced personal injury attorney as soon after the accident in question as possible is always well advised.
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The Determination of Fault
In order to bring a successful personal injury claim, you will need to prove the other party’s fault in the matter. Sometimes the determination of fault is a straightforward process, but often, it is not. Proving the other party’s fault can involve all of the following (as applicable):
Photos and videos that capture the accident’s aftermath (and sometimes the accident itself)
Eyewitness testimony
Your reflections on how the accident happened
Photos of your injuries
Police reports (which are common to traffic accidents)
Expert testimony
Accident recreation techniques
Your dedicated personal injury will help build your strongest claim, which includes skillfully highlighting the other party’s fault in the matter.
If You Share Fault
If you are concerned that you may share fault for the accident that leaves you injured, you should not let this stop you from seeking compensation. Even if you are partially responsible for the injury-causing accident, the State of Texas does not bar you from seeking compensation for the percentage of your damages that the other party is responsible for (as long as you are not more than 50 percent responsible overall). This means that if your personal injury claim ultimately generates $100,000 in damages and if you are found 10 percent responsible, your compensation will be reduced by 10 percent (resulting in $90,000 in compensation) – for a very simple example.
The Insurance Company
Obtaining the compensation to which you are entitled and that you need to follow the difficult path toward recovery comes down to negotiating fair terms with the insurance company (or moving forward by filing a lawsuit against the insurance company if it refuses to negotiate in good faith). While the insurance company is paid specifically for this purpose, it is in the business of generating hefty profits, and it will go to considerable lengths to do so. In its efforts, the insurance company may engage in a wide array of profit-generating tactics.
Denying Claims Outright
Sometimes, insurance companies summarily deny claims (even valid claims) in the hope that the claimants will give up in response. While having your claim denied from the start can be intimidating and discouraging, you should not take the insurance company’s word on the matter. The fact is that, when it comes to personal injury cases, the law has the final say, and filing a lawsuit at this juncture might be your best option. If your experienced personal injury attorney believes in your case, you should, too.
Offering Early Settlements
Another tactic insurance companies often turn to is making early settlement offers before claimants (who are already feeling the financial pinch) are fully aware of their complete damages. You have been injured by someone else’s negligence, and you are not only enduring the pain and suffering involved but are also watching your medical bills mount, and your earnings plummet. The insurance company recognizes that you are in a vulnerable situation and is probably not above swooping in and making the most of your vulnerability with a lowball settlement offer. It is a good policy not to accept a settlement offer before you have discussed the matter with your personal injury attorney. If your complete damages are not well-represented, it can make reaching your fullest recovery far more difficult.
Shifting Blame
The insurance company may attempt to shift the blame off of its policyholder and toward you, the claimant. Determining fault will come down to the evidence and the strength of your claim – and not on the insurance company’s bluster. Again, even if you do share some of the responsibility for your accident, this does not preclude you from seeking the percentage of damages that the other party is responsible for.
Prolonging and/or Complicating the Claims Process
Another favorite of many insurance companies is prolonging and/or protracting the claims process in an effort to discourage and frustrate claimants. There are laws that attempt to keep insurance companies in line when it comes to such practices but proving the matter can be a complicated legal endeavor in and of itself. Your practiced personal injury attorney will know where and when to draw the line when it comes to calling out the insurance company for its unfair practices and to moving forward with a lawsuit in pursuit of compensation that covers your damages fairly.
Tripping up Claimants
The insurance company recognizes that claimants are not only vulnerable but are also unfamiliar with the personal injury process and will do what it can to trip you up. The most common practice toward this end is attempting to obtain a statement from you at the outset. The truth of the matter is that insurance representatives are skilled at eliciting statements from vulnerable accident victims that go on to damage their own claims. The point to keep in mind here is that you are not required to make a formal statement, and this is something that you are better off leaving to your experienced personal injury attorney. Another good idea is staying off of social media and refraining from talking about your accident in general until after the matter has been finalized. The insurance company is looking for statements and posts that it can twist to support its own position (whether or not they actually support this position or not). The less you say, the better. Because even a simple apology at the scene of the accident can be transformed into an acceptance of guilt, staying mum on the matter is in your best interest.
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