Understanding Your Rights In Personal Injury and Wrongful Death Advertisement Only
2 Written By 2005 Keating Muething & Klekamp PLL
3 TABLE OF CONTENTS Chapter I: Introduction 4 Chapter II: An Overview of Personal Injury and Wrongful Death Law in Ohio 5 Chapter III: Deadlines for Making a Claim (Statutes of Limitations) 6 Chapter IV: How the Legal System Works 7 Chapter V: What Gives Rise to a Claim for Personal Injury or Wrongful Death? 10 Chapter VI: Remedies Available for Personal Injuries and Wrongful Death 14 Chapter VII: What to Do, and What Not to Do, In Case of an Accident 17 Chapter VIII: Do I Need a Lawyer? 19 Chapter IX: Some Commonly Asked Questions About Personal Injury and Wrongful Death Claims 23 Chapter X: Selecting a Lawyer 26 Chapter XI: Understanding Your Rights 29 Chapter XII: The Lawyers at Keating, Muething & Klekamp 31
4 CHAPTER I INTRODUCTION Suffering a personal injury or the death of a loved one begins one of the most trying, difficult, and emotionally exhausting times in life. You struggle with an array of emotions including anger about the occurrence and fear for the future. When the situation is caused by another's misconduct, difficult times may seem almost unmanageable. Yet, at such a time, rational decisions must be made and competent actions taken. The Keating, Muething & Klekamp, P.L.L. Personal Injury Team has created this booklet to assist you in making decisions concerning personal injury or wrongful death claims. We have included sections on what to expect from the legal system, various types of claims, selecting an attorney, and receiving just compensation. This booklet is intended to be a road map an initial guide to understanding your situation and making the best decisions for the future. It is not intended to be a substitute for competent legal counseling. In fact, we urge you to contact an attorney if you are concerned about your legal rights. As you read on, you will realize that no such booklet can be comprehensive. Situations surrounding each injury or wrongful death are unique. If you have any questions, do not hesitate to contact us.
5 CHAPTER II AN OVERVIEW OF PERSONAL INJURY AND WRONGFUL DEATH LAW IN OHIO The area of the law in which persons or families seek to recover compensation for their injuries or the wrongful death of a loved one is known as the legal field of torts. While much publicity of this field has been generated in recent years, some seeking to expand the tort system and others seeking to limit the nature of claims or the recovery of damages, the legal concept of allowing an injured person to recover for their losses has been long recognized by society, dating back to early English law where remedies for wrongs were dependent upon receiving a King's writ to force a wrongdoer into court. The principle of personal injury law is simple to allow persons who have been injured by another to recover a sufficient monetary award to be made "whole" for their losses. The law does not provide a "windfall" to the injured person but endeavors only to provide sufficient money to compensate the person for lost wages, medical and other expenses, and some measure for pain, suffering, and discomfort both past and future for as long as the injuries and disabilities last. Further, the law does not provide that every injured person is entitled to recover for injuries, but only those persons who are injured as a result of the actions of another under circumstances which either the legislature or the courts have determined to be appropriate for recovery. Similarly, the Ohio legislature has provided that when one suffers a wrongful death the executor or administrator of the victim's estate may pursue a tort claim on behalf of the victim's family and other beneficiaries to recover not only for the victim's injuries and losses prior to death, but also for certain specified losses suffered by the victim's parents, spouse, children, and other next of kin. This booklet provides answers to some of the questions commonly asked about personal injury and wrongful death claims in Ohio. It does not attempt to answer all the questions you may have, but only to provide you with helpful information and to raise issues you may want to discuss with your lawyer. Specific information on these matters and the laws of other states may be provided by your lawyer.
6 CHAPTER III DEADLINES FOR MAKING A CLAIM (STATUTES OF LIMITATIONS) All claims for money damages must be appropriately filed in a court of law within a specified period of time. If the time period for filing a lawsuit does pass, your claim is completely lost, regardless of its validity. The law that governs the time in which one must file such a claim is commonly referred to as a statute of limitations. There are 1, 2, 4, 6 year and some-times longer statutes of limitations. The application of a statute of limitations depends upon the facts of every case, including whether the victim is an adult or child. Which statute of limitations applies and whether exceptions exist depend upon many factors. Do not allow your claim to be lost because you waited too long to contact your lawyer. Only an attorney can advise you regarding the application of the statute of limitations to your claim.
7 CHAPTER IV HOW THE LEGAL SYSTEM WORKS As explained earlier, Ohio law generally gives persons injured by the negligent or wrongful act of another the right to recover compensation for those injuries. Although many personal injury and wrongful death claims are settled before a lawsuit is begun, every claim is valued ultimately by what those who are negotiating the settlement believe a jury would likely award if the case were tried to completion. Therefore, although a lawsuit is not always necessary to settle a claim, a fair valuation of a loss requires a knowledge of the legal system from beginning to end. The system generally includes the following steps: Presuit Negotiations Negotiations toward settlement of a claim often begin before a lawsuit is filed. The injured person's attorney provides medical bills, doctors' records and reports, wage loss information, and other documentation of the nature and extent of the injury to the insurance company of the wrongdoer, or "tortfeasor." The injured person's attorney and the insurance company's representative discuss the merits of the claim: whether the tortfeasor is really at fault for the accident, how serious the injuries are, what legal issues exist, and what a fair settlement would be. If the insurance company offers to pay an amount that is acceptable to the injured person, then the injured person signs a "release" of the tortfeasor from all claims, the insurance company delivers a check in the agreed amount, and the claim is closed. Filing Suit If presuit negotiations fail to produce a settlement a lawsuit must be filed. The decision to file suit may be made for a variety of reasons. If the deadline for filing a suit (statute of limitations) is about to expire, then suit must be brought prior to that deadline. If negotiations have reached an impasse, suit may be filed to move the negotiations toward a resolution. It may be necessary to file suit in order to gain access to important documents or witnesses that cannot be obtained or located until suit is filed. In some cases, it becomes apparent quite early that the case will not settle until a suit has been filed and the litigation process has progressed significantly. A lawsuit is begun when the injured party (plaintiff) files a complaint with the court and delivers a copy of that complaint to the person or party believed to be at fault (the tortfeasor), who becomes the defendant in the suit. Although it is possible for an individual to file a complaint pro se (without an attorney), most people rely upon a lawyer experienced in personal injury or wrongful death litigation to prepare a complaint that adequately asserts and protects the rights of the injured person, or those of the deceased's estate.
8 Discovery After the complaint is filed, the attorney for the defendant, who is usually hired and paid by the defendant's insurance company, files an answer to the complaint. The answer briefly admits or denies the various allegations contained in the complaint. The phase of the suit known as discovery usually begins after the complaint and answer are filed. During discovery, the attorneys make written requests for information from the opposing party. "Interrogatories" are written questions which must be answered in writing and under oath. "Document requests" are requests for copies of certain documents, usually medical bills, hospital records, doctors' notes and reports, employment information, and so forth. "Depositions" are informal proceedings, usually occurring in an attorney's conference room, in which the attorney for one side questions the other party, or other witnesses. The person being questioned, or "deponent," is placed under oath before the questioning begins, and the questions and responses are recorded verbatim by a court reporter onto a stenographic machine or by videotape. Through the skillful use of interrogatories, document requests, and depositions, the lawyers learn the strengths and weaknesses of their client's case, thereby allowing them to prepare for further settlement negotiations and, if the case does not settle, for trial. Settlement Most cases settle sometime during or after the discovery phase. Often a case will settle after all sides meet in a "mediation" in which a trained mediator is hired to help the parties understand the strengths and weaknesses of their position. A settlement usually involves the payment by the insurance company of a lump sum to the injured party. However, a "structured" settlement might also be reached, which provides for periodic payments over a period of several years. The pros and cons of lump sum and structured settlements are best explained by an attorney familiar with such settlements. The decision of whether to accept a settlement offer made by the insurance company is solely up to the injured party. However, because most plaintiffs have no experience valuing claims and little idea of what their claims may be worth, the advice of the plain-tiff's attorney is usually crucial in determining whether a settlement offer is reasonable.
9 Trial or Arbitration When the parties are unable to agree to a settlement, a decision is made through the court process. A trial, which is usually held before a jury of eight persons, presided over by a judge, and governed by strict rules of evidence and trial procedure, is a complex, time-consuming, and often exhausting endeavor. The skill and experience of the trial lawyer is crucial to the outcome of a case. Not every lawyer is competent to try a personal injury or wrongful death case. Litigating cases is a special skill that can be developed only through experience. Some cases are resolved by arbitration instead of trial. This usually occurs only if the judge orders it, or if both parties agree to arbitration instead of trial. Arbitration ordered by the judge is nonbinding, and either party can appeal and get a trial in court if either is unhappy with the results. If both parties agree, the arbitration can be "binding," or final and non-appealable. In an arbitration there is no judge or jury present, and the procedure is usually less formal than a trial. The arbitrators usually from one to three lawyers decide the case. Arbitration is usually less expensive and less time consuming than a trial. Whether a case should be arbitrated or tried to a jury is a judgment call dependent upon the nature of the case at issue, and is best made by an experienced trial attorney. Appeal A case tried to a verdict before a jury can be appealed by either side to a court of appeals. The appeal process is primarily by written documents to the court of appeals no additional evidence is received. The court of appeals simply looks to the trial court's conduct of the trial and its application of the law to determine whether prejudicial error was committed. The appeal process often takes a year or more from the date of the judgment at trial, depending upon the court and the nature of the case. A few cases are further appealed from the court of appeals to the Ohio Supreme Court, but the Supreme Court is not required to accept every appeal, and in fact rejects appeals of all but the most legally important cases.
10 CHAPTER V WHAT GIVES RISE TO A CLAIM FOR PERSONAL INJURY OR WRONGFUL DEATH? Claims for personal injury or wrongful death generally arise when a person suffers injury or death caused by the negligence of another. Negligence may be defined as a failure to exercise ordinary care under the circumstances. If a person is negligent, his negligence must then cause personal injury or wrongful death for a damage or injury claim to exist. TYPES OF CLAIMS AUTOMOBILE ACCIDENT NEGLIGENCE Most personal injury or wrongful death claims arise out of automobile accidents. Whether a person is responsible for these injuries depends upon whether his negligence was a cause of the accident. Many laws exist, both by statute and through court decisions, that govern the operation of automobiles. A violation of some of these laws will automatically be considered negligence. However, a violation of other laws may not necessarily be considered negligence. For instance, failure to keep an assured clear distance (running into the back of someone) is considered negligent. However, speeding alone is not necessarily negligent conduct. In that circumstance, a judge or jury will decide whether such conduct was negligent. Whether a police officer issues a citation has no effect upon the determination of negligence. That is, the citation cannot be used against the driver of a vehicle to prove his negligence. Drivers of Different Automobiles The typical automobile accident involves two vehicles. The negligence of one driver causes personal injury or death to the driver of the other vehicle. In this situation, the personal injury or wrongful death claim is brought directly against the negligent driver. Automobile/Passenger In some automobile accidents, a passenger may be injured due to the negligence of the driver of the vehicle in which the passenger is riding. In this case, the passenger may make a personal injury or wrongful death claim against the driver. In the event two automobiles are involved, the accident could be caused by the negligence of both drivers. In this case, a personal injury or wrongful death claim may be brought against both drivers. Pedestrians Occasionally, an accident involves an automobile striking a pedestrian. There are statutes that give pedestrians the right-of-way under certain circumstances. There are also statutes that require pedestrians to yield the right-of-way to oncoming automobiles. Whether a driver is negligent will greatly depend upon which person violates these laws.
11 DEFENSES TO INJURIES OR DEATHS CAUSED BY NEGLIGENCE People accused of causing personal injury or wrongful death legally have certain defenses to such claims. The more commonly asserted defenses are contributory negligence and assumption of the risk on the part of the injured party. While the law treats both of these defenses as one defense (referred to as comparative negligence), they are two separate concepts. Contributory Negligence If an injured person failed to act reasonably under the circumstances, he is contributorily negligent. For instance, an automobile accident may occur when both drivers are at fault. This may occur where one driver makes an improper left turn in front of the injured party. The injured party may not be paying attention and may fail to stop or slow down. If the injured party had been paying attention, he could have stopped and avoided the accident. As a consequence, the injured party's negligence contributed to the accident. Assumption of the Risk When an injured person acts or proceeds knowing that he will subject himself to certain risks of injury and injury occurs, he may have assumed the risk. For example, an injured passenger rides with an obviously intoxicated driver and the driver's intoxicated condition causes an accident. The injured person may have assumed the risk of an accident occurring because he accepted a ride with an obviously intoxicated driver. Comparative Negligence If the injured person was contributorily negligent or assumed the risk of injury, he is comparatively negligent. In this case, the court or jury will then deter-mine what percentage of responsibility the at fault party and the injured person each bear for the accident. If an injured person's comparative negligence for the accident is greater than 50%, then the injured person recovers nothing for his injuries. If the injured person's comparative negligence is 50% or less, then his recovery is reduced in direct proportion to his percentage of comparative negligence. ON-THE-JOB INJURIES Personal injury or wrongful death sustained on the job is generally considered a workers' compensation claim. These claims are administered through an agency of the State of Ohio. The benefits to which an injured employee may be entitled would be governed by the statutes that provide for workers' compensation claims. Employers are generally willing to help employees process workers' compensation forms. However, employers may not be trained to recognize and advise you regarding such claims. The complexity of the laws governing workers' compensation may require you to seek legal advice. Under certain circumstances, an employee may make a claim against a third party. For instance, if an employee is driving his vehicle on behalf of his employer and sustains an injury caused by the negligence of a driver of another vehicle, the employee may make a claim against the driver of the other vehicle. In this situation, the employee would have two claims: a claim for workers' compensation benefits and a claim for personal injury.
12 PRODUCT LIABILITY Defective Product Sometimes a claim exists against the manufacturer, and possibly others, responsible for a defective product that causes personal injury or wrongful death. A defective product can generally be defined as one for which the risks of the design exceed the benefits of the design, or one which is more dangerous than an ordinary consumer would expect it to be. Responsibility The responsibility of a manufacturer for the sale of a defective product does not require the injured per-son to prove the manufacturer was negligent. Rather, the injured party must prove that the manufacturer made and sold a defective product and that product caused injury. The manufacturer is responsible for resulting damages to a person even though the manufacturer may not be negligent. The injured person must also prove that he used the product in an intended manner. That is it was used in a manner that was reasonably expected by the manufacturer. For example, a machine may be designed to allow the operator easy access to pinching or clamping operations. But the risk may include amputating the operator's fingers. In this case, a guard should be provided. Without such a guard, the risk of the design of the product outweighs the benefit. Under certain circumstances, a supplier or retailer may also be held responsible for the sale of a defective product, including when a manufacturer is out of business or a supplier was negligent. Warnings Manufacturers are required to provide adequate warnings for certain products. A warning is required if the manufacturer should have known about a risk associated with a product, and the manufacturer failed to provide a warning that a manufacturer exercising reasonable care would have provided. Of course, a claim exists only if the injured person can prove the lack of warning or inadequate warning caused his personal injuries.
13 DEFENSES TO PRODUCT LIABILITY CLAIMS Certain circumstances permit a manufacturer to avoid responsibility for personal injury or wrongful death caused by its product: Misuse If misuse or abuse of the product caused injury or death, the manufacturer will not be held responsible. As a result, it is very important to document the past usage and care of the product in question. Possession of the product, or what is left of the product, is also important. With the remnants of the product, the injured person's attorney is much better able to prove the product was not misused, and thus successfully prove the manufacturer is responsible for the personal injury. Alteration of the Product A manufacturer may be able to avoid responsibility for personal injury or wrongful death, if the product has been materially altered or changed. For this additional reason, it is important that the condition and care of the product be documented. Assumption of the Risk If a person assumes a known risk in the use of a product and that product causes the person injury, the manufacturer may avoid responsibility for the personal injury or wrongful death. An example of assumption of the risk would be shaking a bottle of champagne, pointing the cork at your face and opening it. The manufacturer would probably not be responsible for any damage resulting from the cork striking your face. Unavoidably Unsafe Products If a product is unavoidably unsafe, the manufacturer may not be held responsible for personal injury or wrongful death even though the manufactured product caused such injury or death. For example, a knife is, by necessity, sharp. If a knife is used in the normal process of cooking and a person accidentally cuts himself, a valid claim against the manufacturer of the knife could not be made simply because the knife was sharp. Whether a product is necessarily unsafe is sometimes difficult to determine and generally an attorney experienced in handling products liability claims should be consulted.
14 CHAPTER VI REMEDIES AVAILABLE FOR PERSONAL INJURIES AND WRONGFUL DEATH The fundamental concept governing the recovery of damages for personal injuries or wrongful death is the making whole of the injured person and his family. The process of making one "whole" encompasses a number of different avenues to recovery, some straightforward and traditional, others significantly more complex and more recent. Lost wages and fringe benefits The law provides that an injured person and the estate of one who has suffered wrongful death are entitled to recover the income lost as a result of the injury or death. Included in this recovery is the lost overtime and bonuses which an employee probably would have earned during the time he was unable to work due to the injury or, in the case of a wrongful death, the amounts he would have earned throughout the course of his work life. Not only can injuries remove a person from the work force entirely, they may reduce the types of employment available to the person. For example, a highly skilled and highly paid worker may, because of injuries, be forced to be employed at a less physically demanding and lower-paying job. This reduction in earning capacity is compensable for the duration of the limitation, even if permanent. Included in the award of lost income is the recovery for the value of fringe benefits which the employee would have earned but for the injury or death. These include the value of the employer's contributions for benefits such as unemployment compensation, social security, health insurance, life insurance, retirement plans, workers' compensation, stock options, vacations, child care, and the use of employer-owned automobiles for personal use. All must be evaluated in determining the entire loss of employment income as a result of personal injury or wrongful death. Medical Expenses An injured person is entitled to recover from the at-fault party those medical expenses which are necessarily incurred as a result of the accident and injuries and which are reasonable in amount. At trial the tests for recovering medical expenses are: Whether the expenses were necessary and incurred as a direct result of the accident, and Whether the medical expenses are reasonable charges for the services rendered. Pain and Suffering The law recognizes that when a person is injured he or she is damaged by more than just the payment of medical bills or the loss of wages. The law also recognizes that people injured as a result of the actions of another often endure physical and mental pain and other suffering. As examples, people who are injured experience physical pain, often for extended periods of time, or suffer mental or emotional anguish such as depression as a result of their injuries. The award of compensation varies depending upon the numerous circumstances of each particular situation and there is no formula used by the court or jury in deter-mining an appropriate award. Your attorney will assist you in evaluating this aspect of your claim, relying on his knowledge of jury verdicts in your jurisdiction for similar claims.
15 Household Services The law recognizes that injured persons cannot always continue to perform normal duties around their homes. Sometimes they cannot maintain the home, do household repairs, and perform yard work. Because injured persons either must have family members provide these services or pay to have them done, the injured person may recover those expenses actually incurred or the fair value of the services provided by others. Loss of Enjoyment of Life Courts have traditionally struggled with the concept of measuring and awarding damages for the injured person's loss of his enjoyment of life or the reduction of his quality of life as a result of his injuries. Most people would agree that the quality of one's life is measured by more than just his wages, household services, or the absence of pain. Courts have begun to recognize that one's participation in, and enjoyment of, his family, hobbies, and leisure activities are what provide a quality of life. Accordingly courts are beginning to allow awards designated for such losses. Family Relations and Losses When one member of the family is injured as a result of an accident all other members of the immediate family are affected as well. For example, when a significant wage-earner is injured and unable to work, the entire family system is disrupted; the other adult may need to work longer hours, all family members may have to devote energy to providing home health care or fulfilling the duties of the injured person, and family roles may change dramatically, often for long periods of time. Further, when a spouse is injured it may interfere with a couple's marital relations. The law allows spouses, parents of injured minors, and minors of injured parents, to be compensated for these losses. Wrongful Death Damages The legislature has enacted laws which provide damages to the family of one who has suffered a wrongful death. The action for wrongful death is brought by the representative of the estate on behalf of the surviving spouse, the minor children, and the parents of the decedent, all of whom are presumed to have suffered damages by reason of the wrongful death, and other next of kin. In a wrongful death action damages are provided by statute and include the following: Loss of the financial support which the deceased would have provided his family as a result of his earnings. Loss of the services of the deceased. Loss of the society of the deceased, including the loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving spouse, minor children, parents, or other next of kin. Loss of prospective inheritance to the deceased's heirs. The mental anguish incurred by the surviving spouse, minor children, parents, or next of kin.
16 Property Damage When someone sustains property damage as a result of an accident he is entitled to have the property repaired or replaced, based upon the extent of dam-age. When an automobile is damaged in an accident its owner is entitled to have it repaired at the repair facility of his choosing, provided it is a recognized repair shop. For the period of time the owner is with-out the use of his automobile he is entitled to a rental car, provided either by the at-fault driver's insurer, or reimbursed through the compensation process. If the automobile is a total loss, the owner is entitled to damages for its preaccident value plus sales tax to allow them to purchase a replacement vehicle.
17 CHAPTER VII WHAT TO DO, AND WHAT NOT TO DO, IN CASE OF AN ACCIDENT Medical & Personal Needs When someone is injured, important medical and emotional needs arise which must be met immediately. Questions such as whether to seek medical treatment, who should provide it, whether to take time off work, and similar questions are all medical questions, not legal questions, and should be answered in consultation with a physician. As with any health problem, it is important to seek and follow competent medical advice. If the injured party is covered by health insurance, medical expenses will probably be paid, subject to applicable deductibles and policy limits, as with any other medical claim. At the Automobile Accident Scene If you are involved in an accident, be sure to exercise care when exiting your vehicle. Although it is generally best to leave the vehicles where they are until the police arrive, this is not true if the vehicles are in a dangerous position for example, just around a blind curve, over a hill, or in the middle of a busy highway or interstate. If your vehicle is operable and is in a dangerous position, you should try cautiously to move it out of the way if you can do so safely. You should identify any witnesses to the accident, and obtain their names, addresses, and telephone numbers. Of course, you should obtain the name, address, and insurance company of the other driver. Make note of weather conditions, road surface conditions, any traffic signals involved, and any contributing factors to the accident. If you have any question about whether you were injured in the accident, do not hesitate to allow the emergency personnel to take you to the hospital to be examined. Many serious injuries are not obvious immediately, and may not become painful until several hours later. If it appears possible that another person is responsible for the accident, it is important to keep records of all important events, medical treatment, property damage, and lost income. Photographs of the damage to the automobile, or of a product that caused an injury, can be helpful and sometimes critical in presenting a claim. Sometimes an automobile should be preserved until it can be examined by an expert to be used by your attorney in preparing a claim. You should keep a diary of events, including a description of how the injury has affected you, in order to pre-serve details that might otherwise be lost or forgot-ten. Photographs of all visible injuries such as bruises, cuts, and scars are also helpful. All medical bills, including prescription drug receipts, should be kept.
18 Notifying Your Insurer Any accident should be reported to your insurance agent as soon as it is practical. The insurance company's representative will ask questions about the details of the accident in order to determine how the accident happened. He or she will also ask about any injuries. It is important to cooperate with your insurance representative, but it is just as important to be aware that what you say may affect your rights under your insurance policy, or other policies which may apply. If the party at fault has inadequate or no insurance coverage, you may have a claim against the uninsured/underinsured motorist ("UM") coverage under your own policy, or other policies. Issues involving UM coverage can be complex. While your own insurance representative may be helpful in processing your UM claim, an experienced attorney can alert you to some of the difficult issues in this area. Be factual and direct when speaking with your own insurance representative, but do not speculate on questions to which you don't know the answers. You should especially guard against admitting that you were at fault in any way, because such statements may later be used against you, even if, upon further reflection and after a full investigation, you decide that it was not your fault. You will want to review carefully any insurance policies you, your family members and your employers have, including automobile, homeowners, and medical, to see what your rights and duties are under those policies. Such policies are often lengthy and complex, and you may need the help of a lawyer experienced in such matters to understand your insurance policies. Contact With the Other Insurance Company While you generally should cooperate with your insurance company, the same may not be true with the insurance company for the person (or product) that caused the injury. Although many insurance adjusters want to be fair, their job is to settle your claim as inexpensively as possible for their company. In addition, adjusters usually are not lawyers, and may not know what a claim is really worth, even if they are inclined to try to be fair. For these reasons, you should never give a statement or a medical release to an adjuster for the other insurance company unless you have already decided that you are going to settle the case yourself without the aid of a lawyer. On-the-Job Accidents If you are injured on the job or while at work, you should report the injury immediately to the proper supervisor. Again, be sure to identify co-workers or other witnesses who were in the area or who saw the accident. Product Liability Injuries If you are injured by a product, be sure to keep the product, without using it further or changing it in any way. Keep all sales records and receipts showing your purchase, as well as all documents that came with it such as manuals of instruction, warranties, and its packaging. It is critical in such cases to keep as much information as possible in order to proceed later with a claim.
19 CHAPTER VIII DO I NEED A LAWYER? As is probably clear to you already, the determination of whether you have a personal injury claim, and whether defenses exist, can be a complicated matter. In addition to needing the legal expertise and experience necessary for making this determination, there is often the need for an investigation and the retention of experts. Determining Fault In many personal injury or wrongful death cases, responsibility for the injury or death will be disputed. In an automobile accident case, this means that the driver of the automobile that allegedly caused the damage will claim that he was not responsible for the personal injury or death. If the claim is based upon a defective product, the manufacturer will probably attempt to assert one of the defenses referred to earlier. In either event, early and intensive investigation is necessary. In an automobile accident case: Photographs of the vehicles must be taken before they are repaired or junked. Photographs of the accident scene, including skid marks, must be taken before the scene changes. Witnesses must be interviewed and their statements must be taken in written form before the driver of the responsible vehicle or his representatives have an opportunity to attempt to change the witnesses' recollections of the accident. Police officers must be interviewed in order to properly document their observation and recollection of events before too much time passes and they forget. If this investigation is not conducted as soon as possible by a competent, professional investigator following the accident, the result of the determination of responsibility may be totally changed. That is, in the event a witness who is initially unsure of the facts decides, after extensive questioning by the at-fault party's representative, that the accident was the fault of the injured party, the injured party may ultimately lose his claim. On the other hand, in an early investigation, obtaining a written statement from a witness that he was unsure of the facts will prevent that witness from later claiming it was the injured party's fault. In a products liability case, it is of utmost importance that the product or if the product has been damaged, the remains of the product is gathered and preserved. An analysis of the product and determination of whether it was defective is much easier in this case. It is extremely difficult to prove a products liability claim if the product has been disposed of after causing personal injury. Whether a claim exists may not only depend upon the preservation of the product, but the manner in which the product is retrieved and retained. In the event that you retain counsel quickly following an accident, your lawyer can investigate and pre-serve the evidence you will need in order to make a personal injury or wrongful death claim. Without this, only the at-fault party and his lawyers or investigators will be working to preserve evidence, and the evidence that is being preserved may not be favor-able to you.
20 Experts Many different experts are available for the determination of who is at fault in an accident. For instance, accident reconstruction experts are often retained in order to prove how the accident occurred. These experts take into consideration all of the physical evidence such as the damage to the automobiles, the debris on the roadway and skid marks, and review witness statements. They may give an opinion as to how the accident occurred, which may be necessary depending upon the complexity of your accident. In a products liability case, experts who have experience in the manufacture or analysis of the product may be necessary to testify that the product was defective. This may involve analyzing the intended use of the product and the design of the product. Whether you need an accident reconstruction or products liability expert will depend upon the facts of your case. Your lawyer should have experience in determining whether an expert is necessary and, in identifying and hiring appropriate experts. Insurance Insurance matters can be very complicated. The law controlling questions such as the circumstances under which insurance coverage exists, and the amount of such coverage, is constantly changing based upon new court decisions. Additionally, there are many different types of insurance including auto-mobile liability, automobile uninsured/underinsured, health, disability, and life. You may have rights under policies you own or even have rights to policies owned by others. Your attorney can help you find these policies and determine your rights. Most personal injury claims are paid by insurance companies. That's why it is important to determine quickly whether an at-fault driver of an automobile, owner of premises, or manufacturer of a product is insured for personal injury claims. In the event a per-son does not have liability insurance, your lawyer will need to make certain decisions regarding other ways to recover damages. You may have rights under policies you own or even have rights to policies owned by family members or employers. Your attorney can help you find these policies and determine your rights. Whether an injured person is entitled to lost wages through disability insurance depends upon the terms of any disability insurance. These policies may be difficult to understand and interpret. If you have such a policy, you should see your lawyer for the determination of the fullest extent of your benefits. Your lawyer can also assist you in communicating with the insurance company. It is likely that the insurance representative for the company that insures the at-fault driver will contact you in order to obtain a recorded or written statement. You should understand that any written or oral statement given to these representatives can and will be used against you in any subsequent legal proceeding. You should consult with your lawyer before agreeing to give any statement to any insurance representative, even if the statement is only verbal. Your lawyer will also be able to advise you as to what written information, such as medical records, medical expenses, and other related information should be given to the insurance company.
21 Uninsured/Underinsured Claims Most people don't know that if they are injured by a driver who has no insurance, their own automobile insurance policy may provide insurance coverage. Ohio law requires that any automobile policy that is sold must include, unless expressly waived, coverage for uninsured and underinsured motorist benefits. This means that if a person is injured, either as a driver, passenger, or pedestrian, by a motor vehicle whose driver has no insurance, or who has insurance coverage that is inadequate to cover all damages, the injured party's own insurance policy will pay benefits up to the injured party's insurance limits. Whether an injured party has an uninsured or underinsured motorist claim can be an extremely complicated analysis. If you believe you have a possible uninsured or underinsured motorist claim, you should consult your lawyer immediately. You may have rights under several different policies, including policies purchased and owned by others. Medical Bills One of the many questions an injured party asks is, "How are my medical bills going to be paid?" Even though a person's injuries and resulting medical bills may be caused by the negligence of another person, the injured person's medical bills should still be paid by their own health insurance. Your health insurance carrier may then have a claim against the responsible party to the extent it has paid medical bills. Most injured parties who have automobile insurance also have coverage for medical payments. This means that in the event they are injured as a result of the use of a motor vehicle, they are entitled to have medical bills paid up to a certain limit set forth in their automobile insurance policy. They should not hesitate to submit their medical bills to their automobile insurance company for payment of their medical expenses. Again, in the event such expenses are paid by the injured person's automobile insurance company, it may have a claim against the at-fault driver to the extent medical bills have been paid.
22 Damages The treatment of your medical condition should be of utmost importance to you. Nothing is more important than your rehabilitation and recovery. You should therefore take care to ensure you are being treated by the proper physician who has the experience in treating your types of injuries. Your doctor will be instrumental in providing testimony and opinions regarding your injuries and the effect upon your life those injuries have had and will have in the future. These issues can become complex and your lawyer should have experience in understanding the medical aspects of your claim and the proof of your injuries through your physician's testimony. Your injuries may cause you to: lose your ability to perform your job as you previously performed your job, be unable to perform your normal household duties, lose future income or earning capacity, and lose your enjoyment of life. The proof of these elements of damage often requires retention and testimony of experts. An experienced lawyer in personal injury and wrongful death must be able to determine whether you have these potential claims and whether experts must be retained in order to prove these claims either to the insurance company or in a court of law. If you have any of these claims, you should consult with a lawyer experienced in these matters immediately. Many people do not realize the nature and extent of the claims that they are entitled to assert based upon their personal injury or death of a loved one. Unless a lawyer experienced in personal injury and wrongful death cases is consulted, they may settle or resolve their claim with the insurance company with-out ever having learned that there are many other claims that could be asserted and for which they are entitled to compensation. Once the claims are identified and determined, the attorney can also assist you in determining the value of your claims. Often, the value is not easily measured, but is based upon many factors. It is also important that your lawyer have experience in valuing such claims and have other lawyers with whom he can consult in order to arrive at a reasoned and informed decision about the value of your claims. As with many things in life, personal injury or wrongful death claims can initially appear rather simple. We hope that after you have read and considered this brochure, you will realize that personal injury claims can be very complex. There can be a variety of issues that are not obvious and which no one will discuss with you unless you consult a lawyer. Only an experienced lawyer can advise you with regard to these claims and can answer your questions in an informative and thorough manner.
23 CHAPTER IX SOME COMMONLY ASKED QUESTIONS ABOUT PERSONAL INJURY AND WRONGFUL DEATH CLAIMS Q: How can I pay a lawyer? A: Most personal injury and wrongful death cases are handled on a contingent fee basis. The payment of attorney's fees is dependent, or "contingent", upon the lawyer's success in winning a judgment or settling a claim, and the attorney is entitled to a certain percentage of the recovery. For a further discussion of this topic, see Chapter X, Selecting a Lawyer, at page 26. Q: What if the other driver, who was at fault, has no insurance? A: In Ohio, automobile insurance companies are required to provide "uninsured/underinsured" coverage in the same amount as the insured per-son's liability coverage, unless the insured person states in writing that he or she does not want the coverage. If you have your own automobile insurance and you are injured by a driver with no insurance or with inadequate insurance to cover your losses, you are entitled to collect from your own insurance policy under your uninsured/ underinsured coverage, as long as the accident was the other driver's fault. You may also be entitled to benefits under policies owned by your family members or employers. Uninsured/underinsured insurance issues can become very complicated, and the law in this area has changed often during recent years. If significant injuries are involved, you will want the advice of an experienced lawyer to ascertain how much coverage might be available to you. Q: What if I'm a passenger in a car and I'm injured because of the negligence of the driver? A: You may have a claim against the driver. Q: What if a member of my family is killed by someone's negligence. Am I entitled to compensation for my loss? A: Ohio's wrongful death statute gives certain family members the right to recover for the loss of a loved one, whether that loss is financial support, inheritance, the companionship and guidance once provided by the deceased, or mental anguish. The victim's estate files and pursues the lawsuit on behalf of all the family members who are entitled to recover under Ohio law.
24 Q: When should I return to work after an injury? A: The question of when to return to work should be discussed with your doctor and employer. It is a medical, not a legal, question. The loss you incur by being off work or, in some cases, unable to return to the same work, is compensable. But the question of when you are able to return can only be answered by your doctor. Q: Will my medical insurance company want to be repaid for medical bills it pays if I collect from the other insurance company? A: Usually, yes. Insurance companies normally include language in their policies which "subrogates" them to your rights against third parties. In other words, if your medical insurance company pays medical bills on your behalf for injuries that were caused by the negligence of another person, your insurance company has the right to collect from that person (usually, that person's insurance company) the amount that your insurance company was required to pay because of that person's negligence. However, your medical insurance company may be willing to accept less than full payment, and may not have subrogation rights. Your medical insurance policy must be carefully reviewed to deter-mine your rights and duties. Q: If the police cited the other driver, doesn't that settle the question of who is at fault? A: No. The police officer is not the judge or jury. Usually, he is not even a witness to the accident. Although the officer may have developed an opinion as to who caused the accident, that opinion may be the result of incomplete or inaccurate information, an inadequate investigation, bias, or a combination of these. The police officer's opinion is not binding on the jury, and it may not even be admissible as evidence in some circumstances. Q: Will I have to go to trial? A: Many people have a fear of going to trial. If you are the plaintiff, and there are no claims against you, you cannot be forced to go to trial. However, you are likely to obtain a more favorable settlement if the other side believes that you are pre-pared to go to trial if necessary to achieve a just result. If a settlement offer is unreasonably low, you may be forced to choose between going to trial or accepting an unjust settlement.
25 Q: What if I need surgery or lose wages after I settle my claim? A: In most cases, once a claim is settled, no more money will be paid. This means that you should know before you settle your claim whether you will need surgery or will lose wages in the future so that you may be compensated for these. Proof of such future medical bills or wage loss requires testimony, from doctors and occupational experts, that you are reasonably certain to incur such damages in the future. Q: My doctor wants to be paid, but I have no medical insurance and can't afford to pay him. at should I do? A: If your injuries stem from an automobile accident and you have automobile insurance, you may be entitled to medical payments under your own automobile insurance, up to a certain amount. In addition, if it is clear that another person caused your accident and there is insurance coverage for their actions, that insurer may be willing to pay for your medical bills before your entire claim is settled. If an attorney is handling your claim, your doctor may accept a "letter of protection" from your attorney stating that your attorney will see that the doctor is paid out of any settlement proceeds or judgment. This assurance may satisfy the doctor until the settlement or judgment is collected. If none of these options is available, most doctors will accept a payment schedule, under which you pay a certain amount each month until the bill is paid in full.