How to Prove Lost Wages in a Personal Injury Case

Wednesday, January 27, 2021

One of the most common types of losses inflicted by an accident is lost wages. Most seriously injured victims cannot return to work immediately after their accidents. Instead, they must take time off, either temporarily or long term.
If the victim was not to blame for the accident, he or she should not have to pay for lost wages out of pocket. The at-fault party should be responsible instead. Before a court in Texas will award you for lost wages, however, you will have to prove this type of loss.

How to Prove Lost Wages in a Personal Injury Case 2

What Are Lost Wages?

Lost wages refer to the earnings missed when an employee has to stay home due to an accident and injury. When a physical injury interferes with an employee being able to fulfill the critical tasks of his or her job, the employee will have to stay home until he or she recovers enough to return.
In some cases, an employee can return to work, but in a limited capacity and for a lower wage. In other cases, an employee will have to go without any wages until he or she can go back to work. In severe and catastrophic injury cases, a victim may never be able to return to work. A lost wage award during a personal injury case in Texas can cover several types of income and benefits.

  • Hourly wages
  • Tips and perks
  • Bonuses
  • Overtime
  • Sick leave
  • Vacation days

Texas law allows victims to recover financial compensation for these wage-related losses after accidents that force them to take time off of work. Even if you had sick days to use, you are eligible for their reimbursement if you did not cause your injury. It will be up to you as the plaintiff to prove your lost wages if you wish to obtain this type of reimbursement, however.

Evidence of Lost Wages in a Personal Injury Case

One of the elements you must prove for a successful personal injury case in Texas is damages suffered. The defendant’s wrongful act must have given you real, specific and compensable losses. These losses may include lost income. If you wish to seek financial compensation for lost wages, you or your personal injury attorney will need to provide evidence.

  • Information about your job, such as typical hours worked
  • Pay stubs from before the accident
  • Tax return statements and W2s
  • Wage verification letter from your employer
  • Your business’ banking records, if self-employed
  • Medical records
  • Letter from your doctor confirming you cannot work
  • Expert testimony

These are common examples of evidence and documentation used to prove a plaintiff’s eligibility for a lost wage award. In general, if awarded an amount for lost wages, it will match the exact or estimated wages and benefits the employee would have earned had the accident not occurred.

Can You Seek Compensation for Future Lost Wages?

It is possible to file a claim for future lost wages (called loss potential to earn) in Texas if you will have your injury for the foreseeable future. If you have a catastrophic injury, such as a broken bone, traumatic brain injury or spinal cord injury, that will take you out of work for months, years or life, you and your attorney can seek compensation for the projected amount of time you will be unable to earn a living wage.
An award for the lost potential to earn could cover projected future wages, as well as likely promotions and pay raise opportunities. Proving lost future earnings often requires testimony from your doctor and employer stating that your injuries will make you unable to return to work for a certain amount of time. You may also need to hire a forensic accountant to prove how you arrived at the amount you are claiming in lost future earnings. Work with an attorney for the best odds of obtaining a fair amount for your lost wages in Texas.

Posted by Aaron Herbert at 9:56 am

What Are the Psychological Effects of Being in a Car Accident?

Monday, January 25, 2021

In many ways, a car accident can be just as psychologically damaging as it can be physically harmful. While most people only think of the physical injuries and property damage involved in a car accident, survivors understand the immense emotional trauma collisions can bring with them.
If you experienced adverse psychological effects after being in a car accident, you can seek financial compensation for emotional distress during your injury claim in Texas. A lawyer can help you prove this intangible loss.

What Are the Psychological Effects of Being in a Car Accident? 4

Mental Anguish and Emotional Distress After Car Accidents

A car accident can be a traumatic experience for those involved; especially those who suffer serious injuries or watch loved ones die in car crashes. A car accident is an abrupt, frightening and often severely damaging event. The collision itself can lead to psychological effects such as anxiety about riding in a car, nightmares and flashbacks.
If you were seriously injured in a car accident, your injuries could also contribute to emotional distress or mental anguish, such as through a long-term injury and lost enjoyment of life. For some people, the psychological effects of surviving a car accident can be substantial enough to cause a diagnosable condition, such as post-traumatic stress disorder (PTSD).

Symptoms of Post-Traumatic Stress Disorder

Post-traumatic stress disorder is a psychological condition that occurs in people who have witnessed or experienced traumatic events. It is commonly diagnosed among veterans who have been in war and combat zones, for instance, as well as survivors of sexual abuse. A car accident survivor could suffer PTSD if what he or she saw, felt or experienced in the collision was traumatic enough to cause long-term mental distress.
According to the US Department of Veterans Affairs, PTSD occurs in about 7% to 8% of the population – meaning around eight million adults have PTSD on any given year. Post-traumatic stress disorder can come with many different symptoms for a car accident survivor.

  • Fear or anxiety, especially about cars or driving
  • Avoidance of anything that reminds the person of the crash
  • Emotional and physical reactions to triggers
  • Mood swings or personality changes
  • Depression and withdrawal from others
  • Nightmares or trouble sleeping
  • Flashbacks (involuntary memories of the car accident)
  • Suicidal thoughts or actions/self-harm

Post-traumatic stress disorder is one of the most commonly diagnosed mental health conditions after a car accident. Other common diagnoses are depression and anxiety. Emotional, mental and psychological conditions after a car accident can have a substantial effect on a victim’s life. The victim may be unable to return to his or her normal life or job. The victim may also have to pay for psychological therapy or counseling. Although nothing can fix the immense trauma associated with a car accident, a victim in Texas may be eligible for related financial compensation to help pay the bills and move forward.

Can You Seek Compensation for Emotional Distress?

Yes, you can seek financial compensation for emotional distress and psychological trauma after a car accident in Texas. If you experience any symptoms of emotional distress, such as loss of enjoyment in daily activities, mood swings, stress or anxiety, depression, nightmares, or phobias, you can seek compensation for emotional injuries along with your car accident claim. You can seek compensation for the following noneconomic damages:

  • Emotional distress
  • Mental anguish
  • Post-traumatic stress disorder
  • Inconvenience or embarrassment
  • Phobias or anxiety
  • Psychological trauma
  • Grief or bereavement
  • Lost enjoyment of life
  • Lost quality of life
  • Loss of consortium

The courts will view these as pain and suffering damages, for which you can recover a monetary award – but only if you or your car accident attorney can prove the existence of emotional distress. Proof may come in the form of medical records and statements from your therapist, as well as witness testimony and an injury journal. Work with an attorney right away for assistance with a car accident claim involving psychological trauma for the best possible results.

Posted by Aaron Herbert at 3:25 pm

What Is Assumption of Risk in a Personal Injury Case?

Monday, January 25, 2021
Assumption of risk is a defense that could be used against you if you bring a cause of action for a personal injury in Texas. In your attempt to hold someone responsible for causing your injury, the defendant may allege that you assumed the risks of the activity – thus protecting the defendant from liability. If this defense succeeds, you may not be awarded anything in financial compensation. This is why it is important to speak to a lawyer if you think this defense will be raised during your case.

What Does Assumption of Risk Mean in Law?

In the civil justice system, assumption of risk is an affirmative defense. A defendant can raise this defense to combat a personal injury cause of action. The assumption of risk defense asserts that the defendant is not liable for the injuries sustained because the plaintiff knowingly and voluntarily exposed him or herself to this risk. Essentially, a defendant who uses the assumption of risk defense is claiming that the plaintiff knew about the risk or hazard that caused the injury but voluntarily took the chance of getting injured anyway. Therefore, the defendant believes he or she should not be responsible for related losses. This defense is most common in cases involving dangerous activities, such as bungee jumping or cliff jumping. It can also be used in premises liability cases if a defendant had a “No Trespassing” or “Beware of Dog” sign in place. Places that offer experiences with some level of risk may also use this defense, such as gyms, amusement parks and sports arenas in San Antonio.

How Can Someone Prove Assumption of Risk?

It is the defendant’s responsibility to prove the validity of the assumption of risk defense when asserted. The defendant will have the burden to prove, through clear and convincing evidence, that two main elements are more likely to be true than not true.
  1. The plaintiff had actual knowledge of the risks involved in an activity. The defendant must show that the plaintiff knew of the risk that caused his or her injury, such as a sign warning visitors of a known risk on a property.
  2. The plaintiff voluntarily accepted the risk. The defendant must also have proof that the plaintiff voluntarily assumed or accepted the known risks of an activity. This acceptance could be implied by words or conduct or expressly noted in a liability waiver.
If the plaintiff signed a written contract expressly agreeing to the known risks of an activity, this could serve as proof of assumption of risk. Proof could also come in the form of a participant purchasing a ticket if the ticket doubled as a liability agreement. This is often the case with cruise ship and sports game tickets. With a signed liability waiver in place, a defendant may not be liable for damages even if he or she was negligent.

How Might the Assumption of Risk Defense Affect Your Case?

If you signed a liability waiver before participating in the activity that injured you, don’t assume you are barred from financial recovery. Although this can protect a defendant from liability, there are exceptions to the rule. If the defendant committed an act of gross negligence, recklessness or intentional wrongdoing, signing a waiver will not release the defendant from liability for losses. If the defendant failed to adequately make the risks of an activity known to you when you signed, this could also invalidate a liability waiver. How an assumption of risk defense may or may not affect your personal injury case depends on your unique circumstances. It is important to consult with an attorney if you encounter this defense or were injured after signing a liability waiver. An attorney can help you protect your rights with or without the assumption of risk defense.
Posted by at 12:33 pm

What Are Future Damages in a Personal Injury Case?

Friday, January 22, 2021
Through the civil justice system in Texas, you can receive financial compensation from the person or party that committed a wrong (tort) against you. In legalese, this compensation is known as damages. A civil claim not only has the power to reimburse you for past damages; you could also recover compensation for future damages. Learn more about future damages available in a personal injury case by consulting with an attorney.

Economic vs. Noneconomic Damages

First, understand the difference between the two main categories of damages available: economic and noneconomic. Economic damages pay for your out-of-pocket costs as the victim of a tort. These costs may include hospital bills, lost wages, property repairs and attorney’s fees. Noneconomic damages are the intangible effects an accident had on you and your loved ones. Another name for noneconomic damages is pain and suffering. Compensatory losses in this category may include emotional distress, mental anguish, physical pain, inconvenience, humiliation, lost quality of life and loss of consortium. During a personal injury case in Texas, you could be eligible for future damages for economic and noneconomic losses. Your eligibility for future damages will depend on the extent of your injuries and how long they will foreseeably stay with you. Future damages are only available if you will experience losses connected to the accident in the foreseeable future.

What Are Future Damages?

Past and present damages are clear at the time a claimant files a personal injury claim. As an injured victim, you will have medical bills and lost wages piling up to prove these losses. Future damages, however, are less clear. They will depend on when your injury will fully heal – if it will fully heal at all. You may be able to seek compensation for future damages during a claim if your injuries will, with some level of medical probability, stay with you or get worse in the future. Future damages can include:
  • Future medical care. Any surgeries, treatments, physical therapy, rehabilitation, medications or visits with specialists in the future you may need because of your injury. This includes disability accommodations for a permanent injury.
  • Future lost wages and lost earning capacity. If a doctor believes your injury will make you unable to work for a certain period of time, you can seek lost wage compensation for shifts you will miss. If you have an injury that will remove you from your current occupation, you can pursue damages for permanent lost capacity to earn.
  • Future emotional and psychological impacts. Many accidents have long-term emotional impacts on survivors. If you notice emotional injuries or are diagnosed with a condition such as post-traumatic stress disorder, you may be eligible for future pain and suffering damages.
You can only recover compensation for future damages in Texas if you or your personal injury attorney can successfully prove they will exist. Your lawyer can help you prove future losses using evidence such as your medical records, testimony from your doctor and medical experts, testimony from friends and family members, and information from your employer about the requirements of your job.

Why It Is Important to Seek Future Damages in a Lawsuit

Once you close a personal injury case by accepting a settlement and signing a release of liability form, you cannot reopen it. Even if your injuries worsen or you encounter additional medical costs, you will not be able to reopen a case and negotiate for a higher amount. This is why it is imperative to seek future damages in your original lawsuit – before you miss the opportunity to recover these damages forever. If you need assistance listing all past and future damages on an insurance demand letter or personal injury lawsuit in San Antonio, contact an attorney. An attorney can make sure you do not miss any important opportunities for recovering financial compensation, including future damages. A lawyer will ensure you do not settle for less than the full and true value of your claim.
Posted by at 12:32 pm

How Can I Prove an Injury Is From a Defective Product?

Friday, January 22, 2021

A defective product can cause an immense amount of devastation. Unsuspecting consumers may suffer serious injuries, from lacerations to traumatic brain injuries, due to products that contain defects. You might know your injuries are from a defective product, but unfortunately, this will not be enough to obtain financial compensation from the item’s manufacturer. You must prove that the defective product caused your injury before a court will rule in your favor.

How Can I Prove an Injury Is From a Defective Product? 7

What Are the Four Elements Needed for a Product Liability Claim in Texas?

Obtaining compensation for a defective product in Texas involves what is known as a product liability claim. Product liability claims arise when an item that contains a manufacturing, marketing or design defect injures a consumer. If you have a strict product liability claim, you will need to prove four elements to obtain a recovery.

  1. You were using the product as the manufacturer intended.
  2. The product contained a defect.
  3. The product is what caused your injury or property damage.
  4. You suffered compensable losses.

Most product liability claims have different burdens of proof than other types of injury claims in Texas. In a standard personal injury claim, you or your lawyer must prove the defendant’s negligence to hold him or her accountable. In a strict product liability claim, however, you do not need to show that the manufacturer failed to uphold a standard of care in designing or creating the product. It will be enough to show that the item contained a defect and caused your injury.

How to Prove a Connection Between the Defective Product and Your Injury

Even if you do not have to prove a manufacturing company’s negligence, it can be difficult to recover compensation with a product liability claim in Texas. You still have the burden to prove with clear and convincing evidence that the defective product is more than likely what caused your injury or illness. Meeting this burden of proof will first require evidence of your injury.
Proving an injury generally relies on medical documentation. An insurance company, judge or jury will need to see medical evidence that the injury you are claiming exists. Evidence may take the form of medical records, a letter from your doctor or x-rays. If you have a soft-tissue injury, such as a muscle sprain, it can be more difficult to prove that your injury exists, as it will not show up on scans and x-rays. You may need additional proof, such as medical expert testimony, to support your claim in this case.
Once you prove your injury exists, the next step will be establishing actual cause. You will need to prove through a preponderance of the evidence that your injury was directly related to the use of the defective product. If you suffered your injury from another cause, unrelated to the item’s defect, you will not be able to hold the manufacturer responsible.
Common evidence used to prove a causal link between a defective product and an injury includes eyewitness accounts, your injury documentation and expert testimony. Witnesses can testify as to what they saw the day your injury occurred, such as you using the item correctly, the item malfunctioning and it injuring you. Your medical documentation and testimony from medical experts can help prove that your injury would not have occurred but for the product’s defect.

Consult With a Product Liability Attorney for Assistance

Obtaining compensation for an injury from a defective product in Texas takes certain evidence and proof. It is your responsibility as the injured victim to meet your burden of proof if you wish to make the manufacturer or distributor pay for your losses. While the laws of strict product liability make for a lesser burden of proof, eliminating the need to establish negligence, you will still need to show that the defect caused your injury. Hire a product liability attorney for assistance. A lawyer can help you gather and present strong evidence proving your case.

Posted by Aaron Herbert at 12:04 pm

How Do Cruise Ship Injuries Work?

Thursday, January 21, 2021
Suffering an injury in a place you are familiar with is confusing and stressful enough for the average person. When you sustain an injury on a cruise ship, in a foreign country or out on the open water, you may not know where to turn for assistance. Understanding the basic legal remedies and rights of cruise ship passengers can help you learn your own options if you’ve suffered an injury on a cruise. Always consult with an attorney for professional advice concerning your case.

About Maritime Law

Injuries and accidents on common carriers such as cruise ships go through a much different process than injury claims on land. Land injuries go through tort law, while cruise ship injuries abide by maritime law. Maritime law is a distinct legal area that governs injuries and offenses concerning maritime activities, or those involving ships. Maritime law stipulates that a common carrier must use the highest degree of care during passenger transport. Common carriers are individuals or companies that transport people (or goods) on regular routes at set rates. Since most cruise ships have registrations in countries such as the Bahamas or Panama instead of the United States, maritime law rules. Maritime law holds carriers liable for cruise ship accidents and injuries if the plaintiff can show that the ship’s operator knew or reasonably should have known about an unsafe condition, like land negligence cases. The defendant must have failed to exercise due care in some way to face liability for a cruise ship injury. The courts will also hold the operator of the ship liable for the negligent actions of crewmembers or ship employees in cruise ship injury cases.

Cruise Ship Tickets and Ship Operator Liability

On the back or bottom of your cruise ship ticket, you’ll find a legal contract. Most of what you need to know regarding your ship operator’s liability is on this contract. Your purchase of the ticket is your way of agreeing to the terms and policies outlined in the contract. The back of the ticket will list where you may file a lawsuit for a cruise ship injury – typically the state where the cruise line has its headquarters. While it may be inconvenient for you to have to file your lawsuit in a state other than where you live, most courts uphold this clause. The contract will also state the time limits for filing, which may be different than the statute of limitations for personal injuries in your filing state. Take your cruise ship ticket to an attorney to learn more about the individual contract to which you consented. It’s always a wise idea to read the back of your cruise ship ticket and understand ship operator liabilities before boarding.

When Can You Sue for Cruise Ship Injuries?

If you suffered an injury or illness on a cruise ship, you may not know your rights as far as whether you may sue the cruise line, ship operator, or third party. Like land injuries, maritime injuries must take certain forms for the courts to consider them the results of negligence. Cruise ship injuries that may constitute personal injury cases include:
  • Slips and falls due to dangerous premises (please contact our slip and fall lawyers in San Antonio
  • Elevator and escalator injuries
  • Illness due to unsanitary conditions or food poisoning
  • Injury from a negligent tour guide in a foreign country
  • Port-related accidents
  • Assaults or attacks on board the ship
  • Pool/waterslide related injuries
  • Theft and negligent security
  • Medical negligence
  • Wrongful death
There are many types of cruise ship injuries and personal losses that may give you grounds for a personal injury lawsuit. Contact a personal injury attorney near you to find out more about your case, cruise ship ticket contract, and rights by law.
Posted by at 9:34 pm

What Are Personal Injury Damage Caps in Texas?

Monday, January 18, 2021

Seeking financial compensation for an injury that someone else caused in Texas will require some knowledge of how the legal process works. You will become familiar with one term in particular: damages. In legalese, damages are the compensation awarded to an injured party (plaintiff) for a negligent party’s (defendant’s) wrongful acts. In some states, the damages available in a personal injury case are limitless. In others, however, damage caps control how much money a plaintiff can recover.

What Are Personal Injury Damage Caps in Texas? 9

What Is a Damage Cap?

When a court awards damages in a personal injury case, it provides financial compensation to make the victim whole again. A plaintiff in Texas can recover compensation for both economic and noneconomic damages. Economic damages are actual losses, such as medical bills and lost wages. Noneconomic damages reimburse a victim for physical pain, emotional suffering and mental distress brought by an injury.
At the beginning of personal injury law, there were no caps on the damages an injured victim could recover from a defendant. Over time, however, some states began introducing damage caps as a way to protect the system. Damage caps are meant to dissuade people from making fraudulent or frivolous personal injury claims by placing a limit on how much compensation is available. Although some states have since ruled damage caps unconstitutional, certain caps on damages still exist in Texas.

Does Texas Have Any Damage Caps?

Yes, Texas does have damage caps. If you wish to bring a personal injury claim in Texas, your financial recovery may be subject to these caps…but only if you have a certain type of case. Texas law does not place a limit on damages in every type of injury claim. Instead, it only imposes caps in three scenarios.

Medical Malpractice Claims

If you wish to hold a health care practitioner or hospital responsible for your injuries, you cannot recover more than $250,000 in noneconomic damages from each doctor or medical center. You also cannot recover more than $500,000 collectively from all medical facilities. Thus, the most you can receive in total noneconomic damages in a medical malpractice claim in Texas is $750,000.

Claims Against the Government

Under the Texas Tort Claims Act, you can hold the government responsible for its negligence and the negligence of its employees. Damages are capped in lawsuits against government organizations, however. You cannot recover more than $250,000 per person involved, $500,000 for any single event or $100,000 for property damage. This cap applies to both types of damages, economic and noneconomic.

Punitive Damage Claims

Punitive damages are meant to punish a defendant for gross wrongdoing or heinous acts. They are not awarded in every personal injury case. If a judge in Texas does award punitive damages, the amount cannot exceed the cap of $200,000 or twice the amount of noneconomic damages plus an equal amount of noneconomic damages, up to $750,000 (whichever is larger).

How Might a Damage Cap Affect Your Personal Injury Case?

If someone else’s negligence gave you an injury in Texas, the amount you receive in financial compensation from the at-fault party may be subject to the state’s damage caps. This will only be the case, however, if you are pursuing a medical malpractice lawsuit, a claim against a government entity or punitive damages.
In a car accident case against another driver that does not involve punitive damages, for example, you would not encounter any damage caps in Texas. If a damage cap does apply to your case, you will be unable to recover compensation beyond the statutory limit, even if your actual damages are worth more.
The laws regarding damage caps in Texas are controversial and constantly changing. For the most up-to-date information on the current damage caps, including if they will apply to your personal injury claim, consult with an attorney near you.

Posted by Aaron Herbert at 1:01 pm

How Do Automakers Detect Defectives and Initiate Recalls?

Wednesday, January 13, 2021
When you get a notice from your car manufacturer or hear about another recall on the news, you probably just feel inconvenienced. Now you have to go to the shop and get a repair you didn’t even know you needed. Have you ever wondered how those recalls start? Did someone have a problem and complain or did the manufacturer find it?

When Do Manufacturers Issue Recalls?

The National Highway Traffic Safety Administration (NHTSA) has the authority to develop and enforce standards for vehicle safety to help ensure manufacturers find and correct defects before an accident or injury occurs. Manufacturers are required to recall a vehicle when parts in a vehicle don’t meet the requirements set forth in the Federal Motor Vehicle Safety Standard and when they discover a defect that could threaten consumer safety. The federal standards ensure that parts, including brakes, airbags, and seatbelts, are created with quality and consumer protection in mind. It keeps companies from taking shortcuts and issuing vehicles with inconsistent, partial quality. Safety defects, on the other hand, occur anytime a manufacturer realizes a vehicle component presents a real risk to consumer wellbeing. Anything that could cause harm, such as the Takata airbag recall, falls under the category of a safety defect.

How Manufacturers Find Out About Defects

Vehicles have a number of separate components, and manufacturers are responsible for adhering to industry standards. That does not always prevent the occurrence of defects, however. Finding defects and initiating recalls happens in a number of different ways, including thorough manufacturer quality assurance testing and consumer discovery:
  • Consumer reporting. Anyone who discovers a defect in a vehicle can contact the Vehicle Safety Hotline, which alerts the NHTSA to the problem via phone, at 1.888.327.4236 or online at safercar.gov. Consumer reports often launch investigations that uncover defects in parts. The NHTSA may not investigate an isolated defect occurrence, but they’ll look into problems that could affect multiple vehicles or parts installed in numerous vehicles.
  • Quality assurance testing. Each vehicle manufacturer has its own set of standards when it comes to maintaining compliance with federal standards and creating safe vehicles for sale. Manufacturers have an incentive to find and eradicate defects early on to prevent injury, lawsuits, and loss of consumer trust, so they often initiate recalls on their own.
  • Compliance testing. Federal regulators conduct routine testing to guarantee auto manufacturers maintain federal standards. In some cases, these tests uncover previously undetected defects that warrant a recall.
Discovered defects may only affect a small number of vehicles, causing a small recall. On the other hand, they could affect thousands of vehicles across many brands if the manufacturers use the same parts.

Consumer Responsibility

The automaker is required to send vehicle owners notice of any recalls that may affect their vehicles. Consumers can also go online to the automaker website or safercar.gov to input a VIN number and look up recalls. You can find your vehicle’s VIN number by looking into the windshield on the driver’s side of the vehicle from the outside. The vehicle may also have the number printed inside the driver’s side door where it latches. Automakers should make every reasonable effort to get in touch with those a recall might affect. However, used vehicle sales and a lack of current customer information mean some vehicle owners may never discover the recall. Depending on the situation, a publicized recall isn’t enough to protect a vehicle manufacturer from a lawsuit. If you can prove you didn’t know and couldn’t have reasonably known about the recall, any adverse effects you or a loved one suffered may offer grounds for a lawsuit. Contact the Law Firm of Aaron A. Herbert for more information about recall cases in and around San Antonio.
Posted by at 1:37 pm

How to Prove Emotional Distress in a Personal Injury Claim?

Wednesday, January 13, 2021

Emotional distress is a very real outcome for a victim injured in an accident. The thoughts that immediately race through your head in an accident can cause fear and anxiety, while consequences such as your physical injuries can impact you emotionally for days or weeks to come.
In Texas, you have the right to seek financial compensation not only for the medical costs of a physical injury after an accident, but also for your emotional trauma. Find out how to prove emotional distress during your personal injury claim for a fair financial award.

How to Prove Emotional Distress in a Personal Injury Claim? 12

Seeking Emotional Distress in an Injury Claim

First, it is worthwhile to note that a plaintiff in Texas can generally only recover compensation for emotional distress if he or she also has a physical injury. Physical injuries are often what cause a victim emotional distress in the form of mental anguish, physical pain, discomfort, disabilities or permanent injuries, lost quality of life, and loss of consortium. It is much more challenging to file a claim for emotional distress only.
However, it is possible if the plaintiff can prove that the defendant exhibited particularly outrageous, egregious or grossly negligent actions that caused the emotional distress. If the defendant intentionally or maliciously inflicted emotional harm, for example, it may be possible to bring a claim even in the absence of a physical injury. You may need a lawyer to help you bring this type of claim.

Keep an Injury Journal

One of the best ways to express emotional distress to a judge and jury is in your own words. After a traumatic accident, start keeping an injury journal where you write down your thoughts and feelings. Express how you felt during the accident, while it is still fresh in your mind, as well as how your injuries have impacted you. Include comparisons between how you used to feel prior to the accident and how you feel now. Documenting your mental and emotional journey in writing can establish your anxiety, fear and depression after an accident.

Get an Official Diagnosis

Although you can seek compensation for emotional distress without an official medical diagnosis, medical documents from a professional can serve as strong evidence in your favor. See a psychologist or therapist about your feelings after an accident. You may have a mental health condition that can be diagnosed, such as depression, anxiety or post-traumatic stress disorder. These are common mental health conditions after a serious accident or traumatic event. You can use medical documents as evidence later. Your doctor may even be able to testify in court on your behalf.

Have Friends and Family Testify

The people who are closest to you have most likely noticed how you’ve been emotionally impacted by an accident. Having your friends and family officially testify as to how you’ve been acting, behaving and feeling can help you prove the accident has affected you. Personal testimony of your own about the severity of the accident and your injuries can also help. Testimonies can help a jury understand how you’ve changed since the accident.

Supplement Your Emotional Distress Claim With Injury Evidence

If you are seeking compensation for emotional distress alongside a physical injury claim, supplement your case with medical evidence of your physical injuries. Bring medical documentation such as diagnostic reports, test results, x-rays, treatment plans and notes from your doctor to prove the severity of your physical injuries. Medical evidence can establish the existence, severity and duration of your injuries, establishing the reason for your emotional distress.

Work With a Personal Injury Lawyer

Emotional distress is a common type of loss claimed in a personal injury lawsuit under the umbrella of pain and suffering damages. Securing fair and full compensation for emotional distress, however, may take assistance from an attorney. Hire a personal injury lawyer in Dallas to represent you for the best chances of a successful claim. A lawyer will have the experience, knowledge and resources to help you prove emotional distress.

Posted by Aaron Herbert at 9:44 am

How Are Personal Injury Damages Calculated?

Monday, January 11, 2021

The goal of a personal injury case in Dallas is to make an injured victim whole again by providing financial compensation for his or her losses. These losses, as well as the compensation available, are called damages in legalese. One of the most common questions asked by plaintiffs during injury lawsuits is, “How much is my case worth?” The answer to this question lies in large part in how damages are calculated.

What Damages Are Available?

First, a victim will need to make a list of all the losses he or she suffered because of an accident. This list will go on the victim’s demand letter, which will get sent to the insurance company of the at-fault party in pursuit of compensation. Compensation is available for many different damages during a personal injury claim in Texas.

  • Medical bills
  • Lost wages
  • Disability costs
  • Lost capacity to earn
  • Property damage
  • Pain and suffering
  • Out-of-pocket costs
  • Punitive damages
  • Wrongful death damages

A victim can seek compensation for both past and future losses. If a victim has a permanent disability from an accident, for example, he or she can seek compensation for a lifetime of medical expenses, surgeries and treatments. In general, the more severe the accident and injury, the more the victim will be awarded in damages.

Economic Damages

Economic damages in personal injury law are tangible or special losses that are specific to the victim. These can include health care costs, property repairs and lost wages. The calculation method for economic damages relies on hard numbers. An insurance company or courtroom will add up the actual amount of the economic losses suffered by the victim using evidence such as hospital bills, repair estimates and pay stubs.
Next, the courts will project future economic damages based on the victim’s existing expenses and his or her medical improvement timeline. This calculation may require a doctor to testify as to how long the victim will foreseeably have his or her injuries, as well as the future medical treatments that will be necessary. With existing bills and medical expert testimony, the courts can calculate an amount in economic damages that is appropriate for the victim’s past and future losses.

Noneconomic Damages

Noneconomic damages refer to intangible or general losses that any injured victim would be likely to suffer. These include emotional distress, physical pain, discomfort, mental anguish and anxiety. Calculating noneconomic damages is not as exact a science as economic damages, as it involves a human factor – the jury’s discretion. It is up to a jury how much to award a victim in pain and suffering. Although calculation methods are available, it is a jury’s decision whether or not to use them.

  • Multiplier Method. The Multiplier Method takes a victim’s total amount awarded in economic damages and multiplies it by a number that matches the severity of the victim’s injuries. A victim with a permanent injury, for example, may receive a multiplier of five, while a victim with a minor injury may receive a multiplier of one.
  • Per Diem Method. The Per Diem Method is more common in cases where the victim has a prognosis for a full recovery at a determinable date. A jury will multiply a suitable amount in daily pain and suffering damages, often equivalent to the victim’s daily wage, by the number of days he or she will have the injury.

In the end, a jury can award as much or as little in noneconomic damages as it sees fit for the situation, up to a state’s damage cap (if applicable). Typically, juries grant larger awards to victims with severe or catastrophic injuries, such as traumatic brain injuries and spine injuries. These victims will have greater physical pain, emotional suffering and other losses than victims with minor injuries.

Posted by Aaron Herbert at 11:04 am

Understanding Subrogation Claims on Personal Injury Settlements

Friday, January 8, 2021

When you go through the processes required to recover financial compensation after an accident, you will encounter many unique terms. If you hear the word subrogation, this means your insurance company is bringing a lawsuit against a third party in pursuit of reimbursement for what it has spent on your bills. The point of subrogation is twofold: to save the insurance company from having to pay for losses it is not liable for and to prevent an injured victim from double recovery.

Understanding Subrogation Claims on Personal Injury Settlements 14

What Is Subrogation?

The definition of subrogation is to stand in the shoes of another party or act as a substitute. Within personal injury law, subrogation refers to an insurance company standing in the place of another party to pay for a victim’s bills. Subrogation typically applies to either car accident insurance claims or health insurance benefits. In either case, the insurance company that paid the client will seek reimbursement from a third party.
Subrogation during an injury claim ensures that a victim does not recover twice for the same accident. If the insured has already received payment for his or her medical bills from an auto or health insurance company, that party should not also be allowed to recover compensation from a personal injury lawsuit. This would essentially pay the victim twice for the same damages.
Instead, if an insurance company has already paid off a claimant’s debts, it will be the insurance company that has the right to bring a third-party lawsuit for those expenses, not the injured. Since the insurance company paid for losses when its client was not at fault, it may bring a claim to replace what it spent. The insurance company will seek reimbursement through the subrogation process.

How Does Subrogation Work?

After an accident in Texas, you require immediate medical care. If you cannot pay for this care out of pocket, it does not mean you cannot receive treatment. Instead, an insurance company will step in to help you pay the bills, such as your car insurance or health insurance provider.
Once you have received medical care, your insurance company will send you a form requesting additional information about the accident. The purpose of this form is to determine if there is someone else financially responsible for the accident. If so, your insurer will let you know of its intent to pursue a subrogation claim. You legally must cooperate with this type of claim, meaning you cannot waive subrogation.
Your insurance company can seek subrogation directly from the at-fault party, from the at-fault party’s insurance provider, or from a settlement or judgment award you receive from the accident. How the insurer chooses to pursue subrogation will depend on the company and the factors of your case.

Subrogation and Your Personal Injury Settlement

Subrogation is an action available to insurance companies to prevent them from paying for losses it legally is not responsible for paying. If subrogation is successful, it will not only reimburse the insurance company, but it will also reimburse you for any money you spent on insurance deductibles.
Subrogation may not require your direct involvement if your insurance company goes straight to the at-fault party for reimbursement. If the insurance company places a subrogation lien on your settlement or judgment award, however, anticipate an amount of your award going immediately to the insurance company after winning your injury claim.
You will be required to pay off any liens against your settlement or judgment award before you can keep the remaining amount. With a subrogation lien, the amount of money your insurance company spent on your medical bills will be deducted from your final award won. Then, the remaining amount will be divided to pay for legal fees, lost wages, property repairs and other losses.
For more information about a subrogation claim during a personal injury lawsuit in Texas, consult with a Dallas personal injury attorney.

Posted by Aaron Herbert at 10:51 am