Bouncing Back From A Personal Injury
If you’ve been involved in a traffic accident, slip-and-fall, or any other incident where harm was caused to you. What is essential to understand is the statute of limitations for these types of cases. Often times people allow too much time between the date of the accident and the date they contact a lawyer.
Sergio Lozano was born and raised in Laredo, Texas. He attended St. Edward’s University in Austin, Texas, where he graduated with honors in 1999. His passion for justice leads him to pursue a career in law. He attended St. Mary’s University School of Law in San Antonio, Texas, and graduated in 2002. In 2002 Sergio started his legal career at the Webb County District Attorney’s office as a prosecuting attorney under the-District Attorney Joe Rubio. Quickly moving up the ranks at the District Attorney’s office, Sergio was promoted to Chief Prosecutor of the 49th District Court by current District Attorney Isidro “Chilo” Alaniz.
During his tenure there, he prosecuted multiple types of cases and successfully tried cases in front of Webb County juries. Sergio gained knowledge of the judicial system in Webb County and has developed a great rapport with the local judiciary and their staff. In 2012, after over 9 years working as a prosecutor, Sergio decided to open up his own law office to provide the same passion for the law to his clients.
If you’ve been involved in a traffic accident, slip-and-fall, or any other incident where harm was caused to you. What is essential to understand is the statute of limitations for these types of cases.
Two Years is the Standard Time Limit for Texas Personal Injury Lawsuits
The Texas personal injury statute of limitations is cited in Texas Civil Practice & Remedies Code section 16.003, which states that any civil action for “personal injury” must be filed “not later than two years after the day the cause of action accrues”. This means two years from the date of the accident that led to the injury.
If You Miss the Filing Deadline?
If two years have passed since the accident occurred, and you attempt to file your lawsuit anyway, the person you’re trying to sue will file a “motion to dismiss” and point this fact out to the court. And unless a rare exception entitles you to extra time (more details on these exceptions later), the court will summarily dismiss your case. Once that happens, you’ve lost your right to ask a court to award you damages for your injuries, no matter how significant they might be, and no matter how obvious the defendant’s liability.
Texas’s personal injury statute of limitations is pivotal if you want to take your injury case to court via a formal lawsuit, but the filing deadline set by this law is also crucial to your position in personal injury settlement negotiations with the defendant and his or her insurance company. If the other side knows that the two-year deadline has passed, you’ll have lost all your negotiating leverage, making “I’ll see you in court” the very definition of an empty threat.
Texas Personal Injury Exceptions to the Statute of Limitations
Texas has identified different scenarios that might delay the running of the statute of limitations “clock,” or pause the clock after it has started to run, effectively extending the filing deadline. Here are some examples of circumstances that are likely to modify the standard timeline:
If the injured person is “under a legal disability” according to Texas law if they under the age of 18 or “of unsound mind” — at the time of the underlying accident or incident that caused the injuries, the two-year “clock” probably won’t start running until the period of legal disability is over (the injured person turns 18 or becomes mentally competent). (Texas Civil Practice & Remedies Code section 16.001)
If, at some point after the underlying accident, and before the lawsuit can be filed, the person who allegedly caused the plaintiff’s injuries leaves the state of Texas, the period of absence won’t be counted as part of the two years. (Texas Civil Practice & Remedies Code section 16.063).
First Steps After an Accident or Injury
Take Notes After an Accident or Injury
Writing down the details after an accident is more accurate than relying on your memory.
After an accident that would cause you to file a personal injury claim, it’s important to do everything you can to protect your rights to fair compensation for your loss. The first step you can take is to write down everything you can recall about your accident, including details of your injuries and their effects on your daily life.
These notes can be very helpful two or three or six months later when you craft a demand letter for the insurance company, better for when you choose to file a personal injury lawsuit. It’s better to have written reminders for you of the details of what happened or what you suffered through, which is both easier and more reliable than relying on your memory.
10 Key Factors to Remember
- Describe How the Accident Happened
- Describe Your Injuries and Their Effects on You
- Describe Your Economic Losses and Other Effects of the Accident
- Summarize Conversations With Insurers, Witnesses, and Others
- Preserve Evidence for Your Personal Injury Claim
- Return to the Scene
- Take photographs of the accident scene from a number of different angles
- Document Your Injuries
- Getting Your Medical Records: Rights, Procedures, and Denials
- Protect Physical Evidence
Describe Economic Loss and Other Effects from the Accident
Writing down your injuries may assist your doctor to diagnose you. A small bump on the head or injury to the neck may not seem worth mentioning, but it might help both the doctor and the insurance company understand why your bad back pain developed weeks after the accident. Explaining to the doctor or other medical provider about injuries, those injuries become part of your medical records and will provide evidence later that such injuries were caused by the accident. You may be entitled to compensation for economic loss, for missed special events, as well as for pain and suffering. You will require good documentation. Start taking notes immediately after the accident about anything you have lost because of the accident and your injuries.
Four most common issues of loss:
- Work hours
- Job opportunities
- Meetings, classes, events, family or social gatherings
- Vacation, or anything else which would have benefited you or which you would have enjoyed but were unable to do because of the accident.
Summarize Conversations With Insurers, Witnesses, and Others
Make written notes of the date, time, people involved, and content of every conversation you have about your accident or your claim. In-person or telephone conversations worth noting may include those with any witness, adjuster, or other insurance representatives, or with medical personnel.
Preservation of Evidence is Key for Your Personal Injury Claim
After an accident, finding and preserving evidence is the key to a successful personal injury claim.
The first couple of days following an accident are often the most crucial for finding and preserving evidence of the accident and your injuries to make sure any personal injury claim you decide to make it as strong as possible.
Go Back to the Accident
When an accident occurs somewhere other than your home like a traffic accident or a slip and fall on someone else’s property you should return to where the accident took place as soon as possible to locate any evidence and photograph any conditions you believe may have caused or contributed to the accident. You will be surprised to discover something you were not aware of when the accident occurred. Which may help explain how it happened, like a torn spot on which you fell or a traffic light that wasn’t functioning. While looking around, you may find witnesses who saw what happened or knows of other injuries that occurred in the same spot.
Taking photographs of the scene from all sorts of different angles, especially your point of view during the accident. This will help you keep a good picture of the incident in your mind when you give your point of view to the insurance company later on will indicate how well prepared you are to get the personal injury settlement to fully cover your injuries. Take photos of the scene at the same time of day as your accident occurred to get the best conditions, and for vehicle accidents, the same day of the week, to show the appropriate amount of traffic.
Essential Physical Evidence
The fault for an accident is sometimes established by “physical” evidence. Which is something you can see or touch, as opposed to a description of what happened. Examples include a worn out staircase that caused a fall, the dent in a car showing from which angle it was hit, or an overgrown branch that blocked visibility on a bike path.
Physical evidence can explain the extent of an injury. Damage to your car can demonstrate how hard a collision was, and torn or bloodied clothing can show how severe your injuries were. If you can’t keep the actual object, take photos of it. You can later show the photos as evidence to an insurance company as proof of what happened.Try to preserve the physical evidence exactly the same as it was at the scene of the accident.
4 tips for preserving evidence with photographs:
- Smartphone cameras are advanced enough to show sufficient detail and accurate light conditions, but you can always use an old-school camera too (no Polaroids though, since they’re not known for capturing crisp images).
- Whatever kind of camera you use, take a number of photos from different angles so that you can later pick out the ones that show most clearly whatever it is you want to highlight to the insurance adjuster.
- Take the photos as soon as possible so that they will accurately represent the condition of the evidence immediately after the accident.
- Make sure your smartphone puts a time stamp on the images, or get the film developed immediately and make sure the photoshop indicates the date on the back of the prints, or at least on your receipt.
Find Key Witnesses
Witnesses to an accident are incredibly important to you in making your case to an insurance company. A witness may be able to describe things about an accident that coincide with what you believe happened, supporting your story. Witnesses can provide you with a different perspective you were not aware of but shows that the other person was at fault. Witnesses who did not actually see the accident may be able to give a sense as to the extent of your injuries and can confirm that you were in pain or discomfort. Lastly, a witness may have heard statements at the accident scene describing someone other than you was at fault.
If witnesses are not contacted, and their information collected quickly after the accident, what they have to say may have been forgotten with time. Memories quickly blur, and soon their memory may become so blurred that they are no longer useful. Also, a witness might no longer be around if you wait too long; people move frequently.
Your Injuries must be documented
The best ways to collect proof of your injuries are by quickly consulting a doctor or other medical provider, and by taking photos of any visible marks, cuts, bruises, or swelling, including any casts, splints, bandages, or other treatments.
Take early medical records of all your injuries, and take many photos, it will be difficult to later convince an insurance adjuster that you were injured in the ways and severity you claim you were. Visible injuries like bruising heal and will not look as serious if seen weeks later, and failing to seek immediate treatment can lead an insurance company in believing that your injuries were not so severe, or even that you invented or faked them after the accident.
Regardless of gathering evidence of your accident, it’s always a good idea to write down everything that happened, so you have a record so that yourself and others can refer back to them throughout the course of your case.
Your Medical Records: Know your Rights, the Procedures, and what if I receive Denials
Understand how to obtain medical records and tips on knowing your rights.
You may have a number of reasons to get copies of your medical records. Especially if you were involved in a personal injury lawsuit, medical records would be an essential element of your case. For instance, you may file a legal claim after a car accident, and you may also need to prove that the accident caused your injuries, not some pre-existing medical condition. If there is an issue and your injuries are not collaborated your injuries may be in dispute. When dealing with medical malpractice claims, the largest issues often rely on the plaintiff’s medical records. Legal world aside, patients sometimes need their medical records to provide them to a specialist or new doctor.
*****The federal Health Information Portability and Accountability Act (HIPAA) gives patients the right to obtain a copy of their medical records from any medical provider, with a few exceptions*****
Who can request your records?
HIPAA states you may request your own medical records.
You may request someone else’s medical records only if you are a designated representative. An elderly parent may designate you as their representative. If they give you permission, in writing, to act as their representative in accessing records, medical providers must then provide you with your parents’ medical records if you make a request to obtain them.
Another example is if you are appointed as the legal guardian of another adult, you have the legal right to get that person’s medical records
If you have children, you can request their medical records. However, there are some exceptions. Virtually parents and legal guardians can request their children’s medical records.
Which Records Can you Request?
A patient’s rights under HIPAA requires copies of all of their medical records be given. Patients do have the right to view their original medical records, usually at the medical provider’s offices.
Two types of medical records HIPAA does allow health care providers to withhold
- Psychotherapy notes
- Information the provider is gathering and compiling for lawsuits and medical information that the provider believes could reasonably endanger your life, your physical safety, or the safety of another person.
Usually, if the provider denies your request for medical records, it must provide you with a denial letter. In some cases, you may be able to appeal the denial.
When Will You Get the Requested Medical Records?
Within 30 days of your request HIPAA requires medical providers to provide copies of medical records. The medical provider must give you a reason for the delay If it will take more than 30 days to meet your request.
Who Is at Fault?
When you’re making an injury claim after an accident, proving who is responsible is crucial and can be challenged.
How do I legally prove I was not at fault for an accident?
Your case will probably be made to an insurance company, not to a judge or a jury of your peers in a court of law, so you don’t need legal proof of anything. The negotiating with the insurance company through letters and phone calls with an insurance adjuster would be informal. You just need to make a reasonable argument that another person or company was negligent, regardless if there are also plausible arguments on the other side.
Through basic driving rules and common knowledge would tell both you and the insurance company who was at fault. For instance, in a car accident case, you do not need to present measurements of tire marks or precise angles of collision. Just simply point out that the other driver hit you from the rear or turned in front of you, causing the accident.
If you make a plausible argument that explains why the other person was at fault, the adjuster will realize that if the matter found its way into court, there would be a good chance that its insured client would be found legally responsible. Insurance companies, in most instances, would prefer to pay a reasonable claim settlement sooner rather than then chance facing a personal injury lawsuit in the civil court system.
Can I get compensated for injuries if the accident might have been partly my fault?
If you might have been partly responsible for an accident yourself, you may still be able to recover damages from anyone else who partly caused the accident through negligence. The amount of another person’s responsibility is determined by comparing his or her carelessness with your own. This rule is called “comparative negligence.”. If you were 30% at fault and the other person was 70% at fault, the other person must pay 70% of the fair compensation for your injuries.
There isn’t a specific formula for assigning a percentage to your negligence or that of the other person. During claim negotiations, you may come up with one percentage; the adjuster will come up with another percentage and explain why you bear greater responsibility for the accident. The different percentages at which you each arrive then go into the negotiating process with all the other factors that determine how much your claim is worth.
Personal injury accidents who’s at fault?
If my physical limitations made the accident more likely or made my injuries worse, can I get compensation for my injuries?
For instance, if you have a bad knee, which makes the other leg a bit unsteady. Your eyesight, even with glasses, is not very strong. Even if you fall on a broken stair, are you still entitled to compensation even though reasonably someone with stronger legs or better eyesight might not have fallen.
How can negligence affect your case?
Negligence is a legal term for careless behavior that causes or contributes to an accident. An example of this is that if a person is negligent if they neglected to stop at a stop sign and as a result, hit your car as you were coming through the intersection.
A person can be seen as negligent if they had a duty to act carefully but failed in doing so. We all have an obligation to act with ordinary and reasonable care in any given situation. Here is a common example. A person who drove at night wearing sunglasses was negligent because any reasonable driver would know that doing so would increase the chances of causing a traffic accident.
In most types of injury claims, a person must be found negligent to be legally responsible for another person’s injuries. When someone behaves negligently, and that behavior causes you harm, you can most likely recover compensation for your injuries.
Determining Legal Liability
The basic rule is: If one person involved in an accident was less careful than another, the less careful one must pay for at least a portion of the damages suffered by the more careful one.
Legal liability for most accidents is determined by rules of carelessness, and by one or more of the following propositions:
When an injured person was in an area that they were not supposed to be in, or somewhere, they should have expected the kind of activity which caused the accident, the person who caused the accident might not be at fault because that person had no “duty” to be careful toward the injured person.
If the injured had comparative negligence, his or her compensation might be reduced by the extent such carelessness was also responsible for the accident.
If an accident occurs while working, the employer may also be legally responsible for the accident the negligent person caused
When an accident is caused on a property that is dangerous because of being poorly built or maintained, the owner of the property is liable for being careless in maintaining the property, regardless of whether they actually created the danger.
When dealing with a defective product, the manufacturer and seller of the product are both liable even if the injured person doesn’t know which one was careless in creating or allowing the defect, or exactly how the defect happened.
What If more than One Person Is at Fault?
If there is more than one person responsible when an accident occurs, the law provides that one of the negligent parties is responsible for compensating you for your injuries. The guilty parties must then decide amongst themselves whether one should reimburse the others.
This rule provides you with a couple of significant advantages when multiple parties are at fault. If one liable person is not insured and the other is, you can make your personal injury claim against the person who is insured for the full amount. When both parties at fault are protected, you will eventually settle your claim with only one insurance company. Consider everyone you believe to be responsible and notify each of them that you may file a claim for damages.
How can my own carelessness affect a claim?
When an accident occurs, and you were careless, in most states, you can still get at least some compensation from those who were negligent and partly responsible for the accident. The other person’s liability for an accident is determined by comparing their carelessness with your own. This percentage of liability determines the resulting damages they are required to pay. This rule is referred to as comparative negligence.
There isn’t a specific formula for an exact number for a person’s comparative carelessness. While the claim negotiations are going on, an insurance adjuster will discuss the issues that might have resulted in the accident. When the question of your own carelessness goes into the negotiating along with all the other issues that determine how much your claim is worth
Negligence, The ‘Duty of Care,’ and Fault for an Accident
There is no limit to the kinds of accidents. They are unique and many are not within one’s imagination to invent.
‘Duty of Care’ vs ‘Reasonable Care’
The issue of whether someone is legally liable for injuries relies on whether there is a “duty of care” to protect against injuries for someone who is not supposed to be in the area where the accident happens. Regarding the negligence rule, one must take “reasonable care” to avoid injury to others; reasonable care is relative to time and place and the relationship between people. The behavior might be considered negligent in one instance but not in another.
6 Key factors to a Negligence Case
Regardless of how your accident happened, obtaining fair compensation for your injuries almost certainly involves no more than application. Check out these six principles:
- If you show that you were careful and the other person was careless, the careless, or negligent, person must typically pay your injury damages.
- If a negligent person causes an accident while working for someone else, the employer is also legally responsible.
- If an accident is caused on dangerous property or by a defective product, the owner of the property or the maker or seller of the product is liable regardless of whether he or she actually created the danger or defect.
- If you were also careless, your right to be compensated is reduced to the extent your carelessness was responsible for the accident — your comparative negligence.
- You do not need to “prove” anything, only to make a reasonable argument that the other person was negligent, even if there is a plausible argument that the other person was careful.
- If you apply these basic rules to your accident, you will be able to negotiate a fair settlement of your injury claim regardless of the specific facts or peculiar situations in your accident.