The costs associated with a spinal cord injury can be tremendous. In addition to expenses for hospital, rehabilitation, and follow up doctors visits, injured persons must also pay for other essential needs. For example, the person might need a wheelchair (motorized or manual), medical supplies, and a paid caregiver. The person will also need to have housing and transportation that is accessible. Even with insurance and government benefits, there still may not be enough money to obtain the necessary support services and equipment. Although costs vary from person to person, the average lifetime health care and living expenses of a person injured at age 25 is nearly $3 million. This figure does not account for losses in wages, benefits, and productivity of the injured person or family members who assume caregiving roles.
If the circumstances of the spinal cord injury are such that other people may have contributed to the injury, the injured person may wish to file a lawsuit. A successful lawsuit can provide needed financial resources as well as a sense of justice. Depending on the events surrounding the injury, the lawsuit could result in changes in laws or practices, making society safer.
While injured persons or their loved ones shouldn’t rush to hire an attorney, there are many advantages to hiring an attorney as soon as possible. The attorney will be able to gather information more easily, especially witness statements and physical evidence. The greater the passage of time, the more difficult it may be to obtain these tools for the lawsuit. Also, legal actions have a statute of limitations which requires that a lawsuit be filed within a certain amount of time.
Legal Issues in a Spinal Cord Injury Lawsuit
In a personal injury suit, the plaintiff must show that the defendant acted carelessly, recklessly, negligent or intentionally and that this caused injury. The defendant can be held responsible for both actions and the failure to take certain actions. For example, a driver who runs a stop sign and hits another vehicle can be liable for failing to stop. An important issue in the lawsuit is causation. The defendant must be the actual and legal cause of the injury. The actual cause is the literal cause of the injury. The legal, or proximate, cause depends on the facts of each case. Therefore, even if the plaintiff shows that the defendant was unreasonable, irresponsible, or careless, he won’t win the lawsuit unless he can prove that the defendant’s behavior caused the injury.
If the plaintiff can show that the defendant owed him a duty of care, breached that care, and caused injury, then the plaintiff may be entitled to damages. Money damages can be rewarded for a variety of reasons: lost wages, past and future medical expenses, pain and suffering, disfigurement, and loss of enjoyment of life. A close family member might be entitled to damages for loss of companionship with the injured person. These damages are called “loss of consortium” damages. If the defendant acted particularly bad, the court or jury may award punitive damages. Punitive damages “punish” the defendant and can serve to deter future wrongdoing by others. There may be many defendants in a spinal cord injury lawsuit. The level of responsibility for each defendant may be determined by the judge, the jury, or applicable law.
Defendants in personal injury cases can use several defenses to avoid paying damages. For example, if the plaintiff chose to participate in a risky activity, it may be found that he “assumed the risk” of injury and therefore the defendant is not responsible. Another defense is intentional misuse of a product—if the plaintiff intentionally misuses a product, then the manufacturer may be able to avoid liability. Other defenses to liability include sovereign immunity (for governmental defendants), passage of the statute of limitations, and contributory or comparative negligence. These defenses vary among jurisdictions, but a lawyer can help explain the applicable laws and potential defenses.
Selecting an Attorney
Choosing an attorney is an extremely important decision. During the initial meeting with an attorney, the main goals are to determine the strength of the case, whether the attorney is qualified, and whether the attorney and her law firm is a right match for your needs. A spinal cord injury case is different from other personal injury lawsuits in that it involves medically complex issues and deals with injuries that might have unexpected effects. Prospective clients should:
- Research your attorney as much as your doctor.
- Be sure your attorney has experience with spinal cord injury cases.
- Ask what results the attorney has obtained in prior cases.
- Ask about the attorney’s procedures for finding and using expert witnesses.
- Find out who will be the primary contact – a lawyer, paralegal, or legal assistant.
Steps in the Case
A spinal cord injury lawsuit begins with investigations and compiling a complete medical history. To facilitate this process, plaintiffs should bring all relevant documents to the attorney for review. Such documents include: names and contact information for healthcare providers; medical records both before and after the injury; records of out-of-pocket expenses related to the injury; police and accident reports; photographs or witness statements; and record of lost wages from employers. The attorney may be able to assist you in obtaining documents you do not already have.
Complete honesty with the attorney about prior medical history is essential. Prior medical history and the condition of the person’s spine prior to the injury can affect the case. It is important to disclose all medical history to your attorney, even if you think it could reduce the value of your case. It is much better to explain these situations to a jury rather than be caught in a lie.
In serious cases, a Life Care Planner will be hired to determine what steps can be taken to help the client return to a life as close as possible to the one they prior to the injury. The Life Care Planner helps put a dollar figure on the minimum amount of money needed to meet the client’s future needs, such as rehabilitation and personal care. A Vocational Expert will also be used to determine how the injury affects the person’s ability to work. The Vocational Expert will look at whether the person will be able to return to his previous job, another type of job, or work at any type of job at all. The Vocational Expert and the Life Care Planner are used to help with the strategy of presenting the jury with a well-documented, well-researched estimate of current and future costs. The attorney will also develop an estimate of the damages value of non-economic damages like loss of enjoyment and pain and suffering.
It is important to note that while the injured person’s attorney is conducting an investigation and gathering information, the defense is doing the same. This means the defense is likely to investigate the injured person’s everyday activities. They might hire a private investigator to videotape the injured person outside of their home. This illustrates why it is so important for the injured person to be forthcoming with their attorney about their injury. For example, if a client uses a wheelchair because of a back injury but is videotaped by the defense dancing at a nightclub on the weekend, this can be detrimental to the case if the injured person’s lawyer is not aware of the situation and able to explain it to the jury first.
BOTTOM-LINE ADVICE – Be completely honest with your attorney about your medical condition, even if you think it could harm your case. Your lawyer can explain anything to a jury except a lie.
Read the first article: Staying Safe and Avoiding Spinal Cord Injury