What Personal Injury Claims Can be Made in Illinois?
What Personal Injury Claims Can be Made in Illinois?
By Parag Bhosale
(This is the first in a two-part series on personal injury claims in Illinois)
From the common slip and fall on private property to the wayward hit on the head at a baseball game, personal injury claims probably comprise 70-80 percent of the injury cases we see at Gardi & Haught. The others are workers’ compensation cases stemming from injuries suffered on the job.
How Worker’s Compensation Differs from Personal Injury Claims
The damages that can be claimed in a personal injury case are much more comprehensive than those in workers’ compensation cases. In Illinois, workers’ compensation benefits provide for a portion of salary, medical expenses related to the injury, and a lump sum award for the permanency of the injury. These represent forms of compensation based on the client’s needs moving forward after the injury, rather than the pain or suffering that occurred in the past.
In contrast, personal injury claims in Illinois can seek awards for past AND future damages. These damages may include:
• Compensation for the cost of medical bills, including those caused by an aggravation of a pre-existing condition. When you are injured in a car accident, you are entitled to claim payment for the fair, reasonable, and customary amounts charged for medical treatment, but you get to claim the ENTIRE bill….not just the discounted amount that your health insurance may have paid on that bill. To illustrate, if you get a bill from an emergency room for $5,000, your health insurance may pay $2,500 and the hospital writes off the balance. In your injury case against the driver that hit you, you get to claim the entire $5,000 bill from his automobile insurance. You will likely have to reimburse your health insurance some of their money back, but they almost always agree to get paid back significantly less than what they paid. You get to pocket the difference.
Of course most insurance companies are aware of the reduced amounts health insurers will accept, so they now automatically reduce their settlement offers assuming this reduction. This is extremely unfair, however, because nobody is REQUIRED to accept less than full reimbursement. Furthermore, THEY are taking advantage of the fact that you have health insurance that YOU paid for. The cost of health insurance is a burden that you have already borne. Why should they get to save money because you were smart enough to bargain for a good health insurance policy? A good attorney will use this fact to your advantage when negotiating your settlement.
Personal injury damages are paid all at once and one time only – insurance companies do not pay interim benefits. They don’t care if you have medical bills that aren’t being paid or if you have maxed out your vacation time at work. They pay you only after you have signed your name to a settlement agreement.
Many times after an accident an insurance representative will encourage you to send them your medical bills with promises that they will pay them for you. THEY WILL NEVER PAY THOSE BILLS. They will have you sign a medical authorization so that they can pull ALL of your medical records from both BEFORE and AFTER your accident….why? Because they want to see if they can blame your injuries on a condition that you had prior to the accident…. a so-called PRE-EXISTING CONDITION. In short, they are planning their defense by pretending to be helpful.
• Lost wages. You can claim the amount of wages you have lost due to your injury, and the amount of wages you are reasonably most likely to lose in the future. This can be simple to prove if you are an hourly or salaried employee, but it can be difficult to prove if you rely on commissions, bonuses, or tips. Generally, your past few years’ tax returns can come in handy to show the steadiness of income, but this can be very technical. Don’t assume that you can take as much time off as you want due to your injury and get paid for it later. At the very least you need a doctor to provide a medical basis in writing for why you can’t work.
• Pain and suffering, which is linked directly to the accident. There’s no equation or mathematical formula to come up with a number here, but common sense certainly comes into play. Just saying it hurts is not enough….you need to have medical documentation of your complaints of pain to back it up. This means you need to tell your doctor every time you see him exactly where you are in pain. Don’t assume she knows. Other factors come into play too.
Take for example two people with identical back injuries. Person #1 gets a recommendation for major surgery and goes ahead and has it done. Person #2 gets the same recommendation, but fearful of going under the knife, opts instead to see his Aunt Rita who is a low-cost masseuse. Should their pain and suffering awards be the same? Most jurors (and therefore insurance companies) will surmise that if you’re not willing to undergo a major surgical procedure, then your pain isn’t as bad as you’re claiming it is. That’s why you should never assume that you’re going to get the same offer as someone else with a similar injury.
• Emotional distress in certain limited circumstances. This element of damage is generally not worth claiming unless it is strongly supported by several doctors. The big reason for this starts with this fact – when you make a claim for injuries, you waive your right to keep most of your past medical history confidential. You are putting your health at issue, so the defending party has a right to find out what if anything was wrong with you beforehand. With an emotional distress claim, this means they can dig through your mental health records, or even have you examined and tested by a mental health professional of their choice. Most people who have gone through this process have concluded that it isn’t worth the hassle unless there was a catastrophic injury.
• Wrongful death
The surviving heirs of a person who died in an accident inherit the right to pursue a case. If an estate isn’t opened, the Court can open one for the sole purpose of proceeding with the claim. When the matter is resolved, the proceeds of the claim are distributed in accordance with probate law.
• Punitive Damages Punitive damages aren’t allowed when the defendant was simply negligent. A punitive damage claims will only be permitted it if the defendant’s behavior is so bad that it needs to be punished. Punitive damages often have little to do with the injury and more so to do with encouraging the defendant (and similar individuals or companies) to change their ways.
Many people will recall the McDonald’s hot coffee case where a lady sued and got awarded a boatload of money. The bulk of her award was for punitive damages. The jury computed how much money McDonald’s made over the course of a few days from selling their coffee nationwide, and awarded that amount to the plaintiff.
• Disfigurement. This is a hard one to claim unless it is very obvious. However, it’s a good idea to periodically take pictures of your injury so that you can prove-your disfigurement claim. Remember, a wound or scar will heal over time.
• Property Damages. Most people have a tough time dealing with the fact that the law only requires you to be reimbursed for the book value of your car OR the cost of repairing your car….whichever is less. The book value is generally computed by using Kelly’s Blue Book or through a market search of similar cars priced in the area where you live. So if you think your car is worth more than the book value, you better start looking through dealership ads for the same make and model with similar mileage as your car.
More often than not, an insurance company will pay you the book value as a total loss if the cost of repair comes within 80 percent of the book value of the car. They’re assuming that additional damaged items will be revealed as the car is being repaired.
• Loss of Companionship/Loss of Consortium
Obviously the surviving spouse is damaged to some degree when a family member is injured or dies. These damages can be included if they can be proven. Be prepared to have every part of this relationship dissected if you make this type of claim. Did the injured party provide support? Help pay the bills? Pay for a family vacation every year? Help carry in the groceries each week?
Getting the best personal injury claim in Illinois takes a solid understanding of what is at stake, and an experienced attorney can best advise you how to receive the best possible award or settlement to the most fair award from case. Please don’t hesitate to call Gardi & Haught at 847.944.9400 or request a free case evaluation below.
(Learn what happens when a personal injury claim goes to court in the Part II of this blog.)