What is civil litigation?

Is my case worth pursuing?

FREQUENTLY ASKED QUESTIONS:

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In handling a variety of claims over the years, I have found that there is a common thread of questions that many clients ask during the course of handling a case for them. What follows is a statement of those common questions and my response to those questions.

  1. What is civil litigation?
  2. Is my case worth pursuing
  3. What are the chances of my case settling?
  4. Will a lawsuit have to be filed to pursue my claim
  5. If a lawsuit is filed, how will the case proceed?
  6. What forms of insurance coverage are available to me in a tort claim?
  7. How do you handle medical malpractice cases?
  8. Do I need an attorney to handle my case?
  9. How much time do I have to make a claim?
  10. Is there a way for me to get some background information on the physician who is either about to treat me or who has treated me in the past?
  11. Is there a limitation on the amount that can be recovered in a medical malpractice action?

  1. WHAT IS CIVIL LITIGATION?

    The field of civil litigation is very broad. For the most part, civil litigation consists of either tort disputes or contract disputes. A tort is any civil wrong of a non-contractual nature. For instance, if an individual is injured in an automobile accident as the result of the negligence of someone else, that negligence constitutes a tort. Likewise, if a person is killed on a construction job as the result of the negligence of some third party then that wrongful death action founded upon a negligence theory is a tort claim. When a doctor commits medical malpractice in the performance of a procedure, that malpractice is a tort founded upon a negligence theory. Likewise, if an attorney commits malpractice in the performance of representation of a client then that action or omission on his part is a tort.

    Contract litigation, on the other hand, arises out of either an express or implied agreement between two or more parties which is breached by one of the parties. For instance, if you enter into a written contract with your next door neighbor and then your next door neighbor decides that he does not want to go through with the contract, that decision on his part constitutes a breach of the contract and he may be sued for that breach of contract.

  2. IS MY CASE WORTH PURSUING?

    Before I can advise you as to the strength or weakness of your case I generally need to do some investigation. That investigation may be conducted before suit is filed or in some instances it may necessitate the filing of suit in order to obtain information through the formal discovery process allowed by the Courts (such as subpoenas, depositions, etc.)

    As a general rule it is in your best interest that the investigation be conducted quickly. Insurance companies, for the most part, move very quickly to gather evidence once a person or company that they insure is involved in an incident that may result in a claim. Many insurance companies discourage injured people from hiring attorneys in the hope that they can negotiate directly with the injured person and “buy” the claim cheaply. If you have a minor injury that has involved minimal medical treatment and no continuing symptomatology, then it may be in your interest to deal directly with the insurance company. If, however, you have suffered injury that involves ongoing treatment and/or inability to return to your pre-accident status, then you may be better served by having an experienced civil litigator handling he case for you.

    In any tort litigation, the party bringing the suit (plaintiff) must prove that there has been some breach of duty by the party that is being sued (defendant). That breach of duty may be referred to as negligence or malpractice. In addition to simply proving the breach of duty, the plaintiff must prove that the breach of duty was in fact a cause of his or her injury. For instance, if two parties run a red light at approximately the same time but only the first vehicle strikes the pedestrian that is crossing the street then, even though the operator of that second vehicle may have been negligent , that negligence did not cause the injury to the pedestrian and as such the pedestrian has a claim against the operator of the first vehicle and not against the operator of the second vehicle. In any tort litigation, the plaintiff in general mut prove a breach of duty, that the breach of duty was a cause of injury and finally must prove what his/her actual injuries or damages are.

    If those basic elements can be established and proven by the greater weight of the evidence then the party bringing the claim can prevail. To prove something by the greater weight of the evidence simply means that we must be able to convince a jury that it is more likely than not likely that the other party is responsible for the injuries that you claim. In addition to that, however, you must consider that the law in the tri-state area that we deal with (Virginia, D.C. and Maryland) recognizes a concept known as contributory negligence. Contributory negligence is negligence on the part of the party bringing the claim. The law in these jurisdictions is that if there is any negligence on the part of the person bringing the claim which contributed to their injury then their claim is barred. Some states recognize a concept known as comparative negligence which means that where both the party bringing the claim and the party being sued are guilty of negligence then that negligence will be compared and the plaintiff then will be allowed to recover the amount of damages that is not due to his or her own negligence.

    That is the basic analysis that I engage in terms of deciding whether a case is meritorious. Many of these concepts are explained in much greater detail in book that I have written titled “Law 101".

  3. WHAT ARE THE CHANCES OF MY CASE SETTLING?

    Years ago it was fair to say that most tort claims were settled before trial. In large measure that has changed today because the insurance companies are emboldened by their successful advertising to convince the public of excessive jury verdicts. Insurance companies have their own attorneys that work for them in-house to defend their claims and as such they do not have to incur the legal fees of hiring outside counsel. Consequently it is considerably more difficult today to settle claims than it was only a few years ago. In addition, the insurance companies know that it is going to be expensive for you to pursue a case to trial in terms of retaining expert witnesses, costs of depositions, etc.

    In the case of Brownlee v. Schwartz the insurance company in that case refused to make any offers of settlement. We therefore proceeded to trial and obtained a verdict of 1.85 million dollars. The expenses to take the Brownlee case to trial were significant. That verdict was challenged by the Defendant on the grounds that the verdict exceeded the “cap” in Virginia as to the medical malpractice claims. That verdict was upheld on appeal to the Virginia Supreme Court. (See “Reported Cases”). Since insurance companies frequently refuse to make any reasonable offers of settlement, they may force the injured person to trial.

  4. WILL A LAWSUIT HAVE TO BE FILED TO PURSUE MY CLAIM?

    In the course of handling a civil claim, it may be possible to settle the case before suit is filed. However, cases that I take on are initiated with the idea that a lawsuit may have to be filed and if your case appears to be on that the insurance company is either unlikely to settle for any reasonable amount or has expressly indicated that they are not wiling to settle, then a lawsuit will be filed.

  5. IF A LAWSUIT IS FILED, HOW WILL THE CASE PROCEED?

    Once a lawsuit has been filed then both sides have the right to engage in the process known as “discovery”. That discovery process consists of each side sending each other written questions that have to be answered, requesting that the other side produce documents in their possession and the perhaps taking oral statements of the other parties and their various witnesses to determine what those other persons actually know about the case and what type of witness they would make. The insurance company generally has a cadre of doctors that they pay to examine injured persons. Under the rules of the court the insurance company is generally allowed to pick a doctor of their choosing for the purpose of having an injured person examined.

    The trial itself may not take place for months after the suit is filed. How quickly a case progresses to trial depends upon what jurisdiction the case is filed in. The trial may be conducted either in front of a Judge alone or, if either party requests it, in front of a jury. At the conclusion of the presentation of all of the evidence in the case, the Judge or jury will be asked to decide the case and to render a verdict.

    In many tort claims, it may be necessary to present expert testimony to prove your case. This is especially true in personal injury, medical malpractice or legal malpractice claims. In malpractice claims it is necessary to present expert testimony generally from a professional in the same field as the party being sued which establishes what the standard of care is for that person being sued; i.e., what they should have done and then further to establish that the failure to comply with the applicable standard of care was in fact a cause of injury to the party bringing the claim. In personal injury claims, the expert will generally consist of a medical doctor who testifies that the Plaintiff suffered certain injuries, that the treatment that the Plaintiff received was reasonable, and a result of the negligence of the other party, that the bills and income loss are also reasonable and appropriate and the nature and duration of any permanent disability.

  6. WHAT FORMS OF INSURANCE COVERAGE ARE AVAILABLE TO ME IN A TORT CLAIM?

    The type of insurance coverage that may apply depends upon the nature of the claim. In an automobile accident you, as the operator or occupant of a motor vehicle, may be entitled to medical payments or personal injury protection coverage. In addition, the other motorist that caused the accident typically is going to be insured and as such a claim may be made against that insurance policy. If, however, that other motorist is uninsured or has inadequate insurance and if you have uninsured motorist coverage then that endorsement on your insurance policy may apply to provide coverage for you. Sometimes people are unwilling to make claims under their own uninsured motorist endorsement of their policy for fear that this will cause their insurance rates to rise. As a general rule that is not true. This is a form of coverage that you purchased to protect yourself in instances where you were not at fault; you paid the premiums for it and you are entitled to assert that coverage without fear of that resulting in an increase in your insurance premiums.

    In any type of injury claim, there may also be health coverage that applies to the injured person. It is not unusual that health insurance policies have what are called a “subrogation” provisions which allows them to recover all or part of the monies they have paid on your behalf to cover your medical bills. They may be entitled to recover that sum out of any settlement or judgment that you obtain against the party that caused your injury. Some states, like Virginia, prohibit subrogation in certain instances.

    If your injury was caused on premises as a result of some fault of the property owner, then that property owner is usually going to be insured and you may make a claim against that property owner to recover proceeds from the liability insurance policy covering that property. In addition, there may be medical payments coverage available to you from that property owner to cover your medical bills irrespective of whether there is any proof of fault on the part of that property owner.

  7. HOW DO YOU HANDLE MEDICAL MALPRACTICE CASES?

    A medical malpractice or medical negligence claim requires extensive investigation and also requires supporting medical evidence in order to prevail. The initial investigation of a medical malpractice or medical negligence claim involves obtaining all of the pertinent medical records, having those records reviewed by a practitioner in that particular field of specialty and then obtaining an opinion from that medical specialist as to whether there is some negligence or fault on the part of the doctor or hospital that treated you.

    In the state of Virginia the medical profession has been able to lobby for the passage of laws that protect them from medical negligence in large measure. In a medical malpractice action in Virginia the health care provider (doctor, hospital, physical therapist, etc.) may request that the case be reviewed by a medical malpractice review panel consisting of one physician, one attorney and a Circuit Court Judge. The opinion of that medical malpractice review panel may then be presented at trial if in fact you go to trial.

    In Virginia there is currently a cap on the amount that an injured party can recover. As such, even though your medical expenses may exceed the cap and/or you suffered a debilitating injury that requires lifelong, twenty-four hour care, you can not recover more than the cap.

    In the District of Columbia, there is no cap on damages in medical malpractice actions and likewise the physician does not have any right to have the case reviewed by a medical malpractice panel. Instead, in the District of Columbia doctors are treated the same as all other citizens; i.e., if they are guilty of negligence they may be sued and, if a Judge or jury determines that their negligence was in fact a cause of injury to you, then they may be held liable for the full amount of damages that were caused and awarded by the Judge or Jury.

  8. DO I NEED AN ATTORNEY TO HANDLE MY CASE?

    Ultimately that question has to be answered by you. An attorney can assist you in particular if the case is one involving some complexity or if the claim is disputed. If your case involves only minimal property damage and minor injury to yourself then you may decide you do not need an attorney.

    If, however, your injuries are serious and/or it appears that they may be prolonged, you should seriously consider retaining an attorney from the beginning to minimize the potential of undermining or compromising your claim and to ensure that your interests are protected.

    In any type of complex litigation involving professional liability or premises liability, your interests may be best served by having an attorney assist you because of the potentially difficult issues that may arise in the course of that type of claim or litigation.

  9. HOW MUCH TIME DO YOU HAVE TO MAKE A CLAIM?

    In Virginia, the statute of limitations for tort claims involving injury to a person in general is two years from the date of injury. In the District of Columbia and Maryland those same types of claims normally carry a three year statute of limitations from the date of injury. What that means is that as a general rule a lawsuit must be filed at the courthouse within two or three years, as appropriate, from the date of your injury. There are exceptions to that rule but that is the general rule that must be followed. Your simply writing a letter to the insurance company making a claim does not stop the statute of limitations from running. If your claim has not settled then, a lawsuit must be filed in the Courthouse in order to stop that statute of limitations from running. If the statute of limitations has expired without the filing of a lawsuit, then your claim is forever barred.
    There are some exceptions to that general rule and as such it is prudent that you consult with an attorney as soon as possible after you have suffered any injury so that your legal rights can be explained to you in detail and you can them make a decision as to how you wish to proceed.

  10. IS THERE A WAY FOR ME TO GET SOME BACKGROUND INFORMATION ON THE PHYSICIAN WHO IS EITHER ABOUT TO TREAT ME OR WHO HAS TREATED ME IN THE PAST?

    In the state of Virginia, you may call the Board of Medicine @ (804) 662-9388 or write the Board of Medicine @ 6606 West Broad Street, 4th floor, Richmond, VA 23230-1717 or go their website. The Board will give you basic information about that physician such as the issue date of licence, expiration date of licence, license number and whether there has been any disciplinary action taken.

    In Washington, D.C., you may call the Board of Medicine @ (202) 724-4900 or and you will be given the issue date of the licence, expiration date of the licence and whether there has been any disciplinary action taken. On-line services can be found under Helpful Links.

  11. IS THERE A LIMITATION ON THE AMOUNT THAT CAN BE RECOVERED IN A MEDICAL MALPRACTICE ACTION?

    In the state of Virginia, there is currently a limitation. That limitation or “cap” is 1.8 million dollars as of July, 2006. That cap goes up slightly each year. Claims that arose before August 1, 1999 are governed by a one million dollar limitation on recovery. The cap is an absolute limit meaning that no more than the cap, whichever is applicable, can be recovered by a single patient regardless of how many defendants may be sued.

    In the District of Columbia, there is no such limitation on damages. Doctors in that jurisdiction are treated the same as any other citizen; i.e., they can be made to pay as much as any other citizen who commits a wrong.

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