STEP 1 - THE TREATMENT PROCESS
A personal injury claim generally arises out of an unfortunate incident. Examples of unfortunate incidents are a car accident, a criminal act, a fall on another’s property or a defective product. While the lawsuit will mostly be determined by the exact cause of the injury, the main elements of all personal injury claims are the same. With this in mind, all personal injury claims first look to the injury.
THE OCCURRENCE
A multitude of occurrences can lead to a personal injury. The most common examples include: truck and bus crashes, automobile collisions, defective products or falls on the property of another (whether at a private residence or business open to the public). Specific claims that require different types of proof will result from all of these occurrences. Despite these claims being different, there are some helpful general practices one can utilize in most of the situations.
The most evidence is available right after the accident. In the last decade, it has become commonplace for evidence to come from mobile phones capable of video recording. Considering the improvements made in video recording on mobile phones, the use of mobile phones to record an aftermath of a crash, the remains of a defective product, or the condition of an area in which a fall occurred can be tremendously helpful for a plaintiff. In addition, mobile phones can also be helpful to collect witness information and record a quick witness interview on the spot.
Although it may not seem necessary at the time, collecting basic evidence about the scene of the accident and contact information from the other party and witnesses is imperative. For example, a party might acknowledge fault at the scene but then say something different to the responding police officer or deny making such statements all together. Due to the uncertainty of the actions of the other party, it is nearly impossible to know how a claim will play out. Therefore, preparing for the worst and making sure to collect all the basic information is a party’s best bet.
Even if some time has passed after the accident, a party should still try to collect as much basic information as possible because details about the occurrence will fade as time passes. Therefore, it is best to write down all of the details, take a picture of the area as soon as possible and track down all of the witnesses before their memories of the event start to fade. It is best to get a written account from a witness because this ensures the greatest level of accuracy.
TREATMENT
Seeking medical treatment is even more important than gathering evidence. While some of the injuries may be obvious (such as broken bones or burns) and require immediate attention from medical providers, some of the injuries may not be so obvious due to the rush of adrenaline from the event and will more than likely surface in the hours or days following the accident.
Understanding the extent of the injuries and seeking necessary treatment is extremely imperative. While it may be difficult to make all physical therapy sessions and doctor’s appointments due to reduced income from time-off work, it is essential to complete all treatment as faithfully as possible. A jury can reduce the amount of damages awarded if there is evidence that an injured party failed to follow medical instructions. This could lead to the compensation awarded being less than the party’s medical bills. Additionally, future medical treatment might be necessary so it is important to discuss long-term effects with the treating doctor.
TIMING CONCERNS
All required elements must be met before a claim is “born.” Injury suffered by the plaintiff is usually the last element and appears in both the form of economic loss (such as medical expenses and lost income) and non-economic loss (such as pain suffered and emotional distress). In Roe v. Diefendorf, the Kansas Supreme Court held that a claim is complete upon finding that the injury occurred. Therefore, the finding of the extent of the injury plays no role in determining the claim and even if treatment for the injury lasts several months or years, the claim is complete as soon as the injury occurs. So, legal counsel should be contacted immediately after the injury occurs because the statute of limitations will begin as soon as the injury occurs.
The statute of limitations prescribes a time period in which a cause of action may be brought. Since different causes of action have different statutes of limitations, it is important to determine the type of personal injury claim in order to know when the claim must be filed. It is common that most personal injury claims must be brought quickly after the injury occurs. For example, a negligence claim must be brought within two years of the occurrence, as defined in Section 50-513 of the Kansas Statutes. So, a negligence claim is forever lost if it is not filed within two years of the occurrence. Therefore, it is important for a plaintiff to file a claim before the statute of limitations runs because the plaintiff will not be able to recover any type of damages if it is not filed during this time.
One of the most difficult stages to navigate is this early stage of a claim. A plaintiff does not want to settle too early without knowing the true extent of his or her injuries or treatment because the amount of the settlement will most likely not cover all of the expenses the plaintiff eventually incurs. On the other hand, if the plaintiff waits too long than the statute of limitations might run. Ultimately, the most important thing to do at this point is to complete all medical treatment and determine with a doctor if there are any long-term effects that will surface even after successful treatment. Additionally, legal counsel should be utilized to gather evidence and assist in managing deadlines.