Answers to the Ten Most Frequently Asked Questions in Spinal Cord Injury Cases
1. Who can sue for a spinal cord injury?
Anybody, child or adult, whose spinal cord injury was caused
by somebody else’s fault.
2. Who can be held responsible for a spinal cord injury?
Any person whose negligent or intentional misconduct caused
the injury can be held responsible to the injured plaintiff.
This would include a large list of potential defendants from
vehicle drivers, product manufacturers, construction site
operators, owners of dangerous private or public property and
others. The key is to establish that there is fault on at least
one of these parties or any other potential defendant who caused
your spinal cord injury.
3. What if I was also at fault for the accident which caused my
spinal cord injury?
California is a comparative fault state. A person can sue
for serious personal injury even if they are partially at fault.
As long as they can prove that one or more other parties are also
at fault. However, the amount of a plaintiff’s recovery will be
reduced by the amount of their fault. Therefore, if someone is
awarded $5 million dollars in a serious personal injury case, but
are found to be fifty percent (50%) at fault, the recovery will
be limited to $2.5 million dollars.
4. Is it important to quickly investigate an accident which
results in a spinal cord injury?
Absolutely. Given the seriousness of the injury, you or
your attorney will be doing yourselves a terrible disservice if
the accident is not investigated quickly and thoroughly. A
thorough investigation should include an examination of the
scene, the instrumentalities involved in the accident, interviews
with witnesses and the collection of reports from investigating
agencies.
Further, if at all possible, the instrumentalities causing
the accident should be maintained in their post-accident
condition, i.e., motorcycles should not be repaired,
malfunctioning machines should be maintained and not repaired.
The investigation will be important to establish fault on
the most obviously guilty defendant; establish a lack of fault on
the part of the plaintiff; and establish fault on wrongdoers
other than the most clearly at fault defendant who may be in a
better position to fully compensate plaintiff for an always
serious spinal cord injury.
5. Is the existence of insurance coverage important?
Yes. It is critical. It is usually unlikely that the
person or entity that caused your spinal cord injury will have
the assets necessary to cover your enormous potential damages.
Even a company with a relatively large insurance policy like
$500,000 or $1,000,000, will not cover the damages in a clear
liability case in which there is a spinal cord injury. That is
one of the reasons why an early investigation is so important;
that is, to develop evidence against multiple wrongdoers who, in
totality, may be able to cover your damages either through assets
or insurance.
6. Will my attorney need to retain experts to prove liability
and damages even though my injury is so obvious?
Almost always. Because of the seriousness of your injury,
it is critical that liability, i.e., fault, is pinned down as
soon as possible after an accident against at least one potential
wrongdoer and hopefully more. Liability experts will help you do
this. These experts include mechanical engineers, metallurgists,
accident reconstruction and human factors experts who can speak
to the liability factors in the accident.
In addition, if there is any issue as to whether a
defendant’s wrongdoing caused your injury, the retention of
biomechanical engineers and biomedical engineers can be extremely
helpful.
With regard to damages, the answer is yes, always. Although
the fact that you are injured may be obvious, the consequences of
the injury will not necessarily be obvious and will usually be
highly disputed by the defendants. At a minimum, you will need
to retain at least one doctor to testify to the medical effects
of your injury. Then, you will need a vocational
rehabilitation/life care need expert to testify to your loss of
earning capacity and your need for future care and treatment, and
finally, you will need an economist to testify to the amount of
damages which will need to be awarded to cover all of your
losses.
7. What damages am I entitled to recover in my spinal cord
injury case?
Under California law a plaintiff who has suffered a spinal
cord injury is entitled to recover all of his or her past and
future medical and attendant care expenses; past and future loss
of income/earning capacity; past and future pain, suffering and
emotional distress and in cases in which the defendant’s conduct
is particularly bad, punitive damages (damages which are awarded
to punish the defendant).
8. How soon after my accident must I bring a case?
You generally will have one year from the date of the
accident to file a lawsuit. This time period can occasionally be
extended if for some reason you were not able to discover your
injury or the negligent cause of your injury for some time period
after the accident. However, in a serious injury case, a delayed
accrual of the statute of limitations for late discovery is
extraordinarily rare.
If your case is against a government entity, a claim must be
brought within six months of the date of the accident.
If the plaintiff is a minor, a minor has until their 19th
birthday to bring a case unless the injury stems from medical
malpractice, which has a far shorter statute of limitations
period or a government claim in which a minor should bring the
claim within six months of the accident, or one year at the
latest.
9. Do I need to retain an attorney?
Absolutely. Given the significance of your injury, you
cannot take a chance on attempting to resolve your case without
the help of an attorney. An attorney, through investigation,
retention of experts and litigation, will help you to establish
fault against the most obvious defendant; will help you establish
fault on other potential defendants; and will help minimize or
eliminate any fault which would be attributed to you.
Further, an attorney will help increase the value of your
case by “working up” your damages to make sure that you receive
as full compensation as possible under the circumstances.
10. Will my spinal cord injury case settle out of court?
Yes, 90 to 95 percent of spinal cord injury cases settle at
some time before trial.
