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Why should you settle? And what are your damages??? Feb. 15, 2024

February 15, 2024 - Blaszkow Legal

Catastrophic injuries are the most impactful kind of claim that a living person can have, where that person finds their entire life completely turned upside down. A catastrophic injury affects every facet of your life, often in ways that you never would have thought possible. Simple tasks like getting something from the refrigerator, or even getting into or out of bed maybe changed forever.

When you have been working with an experienced law firm to settle your catastrophic injury case, there are a lot of considerations that have to be taken into account, when you are looking at trying to resolve the case. Blaszkow Legal will help to explain that, to give you some guidance on the "whats", and the "whys".

Why settle your Virginia catastrophic injury case?

Catastrophic injury cases will sometimes be on-track to settle. This means that the at-fault party or parties are interested in compensating you for your injuries and other damages, without going to trial. Your lawyer may recommend this as the best path forward for you. But why?

The reality is, that the amount offered in settlement is often lower than you may obtain in a court of law, through a jury award and judgment. However, no jury verdict is automatic. Juries can surprise you at the last minute, and you can sometimes wind up with less that you believed you would receive.

Additionally, when you are actually in trial, you give the defense every opportunity to attack your case. No matter how badly you have been injured, if you go to trial, you will still have to prove liability. You will also have to prove that you were in no way responsible for your own injuries. As we've discussed before, Virginia's contributory negligence rules mean that if you are even 1% responsible for your injuries, then you cannot recover. In trial, the defense gets to raise that and put that in the mind of the jurors.

Settling a case allows you a greater chance of obtaining a realistic recovery, without the expense of trial. Some doctors want between $5,000 and $10,000 to testify! And if you have been seriously hurt - and in a catastrophic injury case, you have been! - there may be many doctors who need to testify, from neurologists to orthopaedists to life-care planners and economists!

The elements of your catastrophic injury damages

The total settlement award takes into account all of the disparate elements of your damages. Damages is a legal term that we use to encompass all of the way that the accident has impacted you. These damages fall into two separate categories, called economic damages and non economic damages. Economic damages are those that are easily quantifiable through documentation: for example medical bills, and time lost from work. Non-economic damages are more difficult to define, such as pain and suffering post-traumatic stress, anxiety. There are no law books that say a brain injury is worth x, and the loss of a leg is worth why.

Other parts of your damages can include loss of earning capacity, permanency, scarring, disfigurement, loss of enjoyment of life, and others. In a trial, these things would be proven by expert reports, and Witness testimony.

Determining the appropriateness of settlement

This is the part of the case where you need to be in very serious contact with your attorney. This is not always something that can be done over a phone call, and will often involve a meeting. Given the level of your injuries, a good attorney may meet you at your house, if necessary, but will try to make accommodations to get you into the office. But there are a lot of things that you have to review during these discussions, such as medical records and other evidence.

When determining the appropriateness of a settlement offer from the insurance company, the attorney is going to look at all of the aspects of the case, to make sure that you are being properly and fairly compensated for your injuries. Some offers are non-starters, because of the level of your injuries. For example, an offer that does not rise to the level of your medical bills is not a realistic settlement offer for a catastrophic injury, generally.

If you have questions about your settlement offer, you need to be speaking with your attorney. The attorney will explain why the other side is making that offer, and what they considered. Negotiation is a back and forth process, and different things can be raised at different times.

Another important consideration that an attorney will make when reviewing a case, is the unfortunate possibility that there is limited recovery in your case. Sometimes, insurance policies are the only recovery that is available. This is a horrific circumstance, and thankfully doesn't happen that often, but it is possible. An attorney is going to work hard to get you all of the money that they can, but sometimes the money that is available is not enough to compensate you for everything that you have gone through.

Types of catastrophic injury cases

Catastrophic injuries are unfortunately common, throughout Virginia. The most common catastrophic injury that we see are traumatic brain injuries. Traumatic brain injuries can range from mild, such as concussions, to severe injuries that can change a person's ability to even perceive the world around them. The permanency of traumatic brain injuries, and the fact that so much is still not known about the brain, requires continual monitoring by neurologists, neurosurgeons, and neuropsychologists.

Catastrophic injuries can also include internal injuries that cannot be seen by others. There have been cases where someone has received a puncture wound by a piece of debris during a car accident, which then led to a series of surgeries, and the removal even of internal organs that have failed or been damaged severely.

Fractures, of the spinal column and other large bones can be equally catastrophic, and can sometimes lead to the loss of a limb. Anytime a limb is lost, this is considered a catastrophic injury.

Any catastrophic injury may be characterized by continual, sometimes lifetime medical treatment that will be required to get you back to baseline, and to keep you functioning as best as possible. Unfortunately, not every injury can be fixed, and you may not ever get to your old baseline. This kind of permanency means the injury is classified as catastrophic.

Past medical history

Another reason that your attorney may consider recommending settlement in a catastrophic injury case is your medical condition before the traumatic injury that caused your catastrophic injury. It is the responsibility of the plaintiff, or the person bringing the case, to prove their case. This includes not only that the other side was negligent and thus responsible for causing the injuries, but also that the medical conditions that you have suffered are causally linked to that negligence. This can sometimes be a very difficult argument to make if you have injured a body part that was previously injured, in the same manner in which it was previously hurt. This allows the waters to be muddied, and the insurance companies to argue that the seriousness of your injury already existed

Considering the Settlement

Settling a case is never an easy decision, but it can be viewed as a cost benefit analysis, coupled with a risk analysis. If the insurance company is offering one million dollars, and you think you want one-and-a-half million, you may deserve it. You may have a good chance at it! But, there is also a chance that you will get a jury that gives you less, or nothing at all. And, even if you do win, a lot of that extra money is going to be paid to doctors, court reports, and other experts!

If you have been involved in a catastrophic incident, and left with serious injuries, you should always speak to an experienced car accident attorney before settling! Always talk to a dedicated lawyer to review your options and determine if settlement is right, and if settlement is right for you.

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Settling a Case | Virginia Catastrophic Injury Attorney