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.
- What is civil litigation?
- Is my case worth pursuing
- What are the chances of my case
settling?
- Will a lawsuit have to be filed
to pursue my claim
- If a lawsuit is filed, how will
the case proceed?
- What forms of insurance coverage
are available to me in a tort claim?
- How do you handle medical malpractice
cases?
- Do I need an attorney to handle
my case?
- How much time do I have to make
a claim?
- 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?
- Is there a limitation on the
amount that can be recovered in a medical
malpractice action?
- 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.
- 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".
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.