There are a variety of factors to consider whether you have a Virginia personal injury case worth pursuing. At first, you may not know if you have a case or not. So it is imperative for you to schedule an appointment with a qualified personal injury lawyer to make that determination.
When I review a personal injury case to determine if there is a viable claim worth pursuing, I look at the following factors:
1. Who was at fault?
With every personal injury case in Virginia, the very first question to ask is who was at fault? Virginia is an at fault state. What that means is that no one is responsible for your injuries unless he or she broke a societal rule that caused your injury.
In car accident cases, this may be easy—i.e. the defendant ran a red light. In slip and fall cases, it is more difficult because you have to prove that the defendant knew or should have known that there was a defect on the property and he or she failed to fix it or warn you of it.
It is even more difficult in medical malpractice cases where you have to prove the doctor’s actions fell below the standard of care in Virginia. That almost always requires a expert doctor reviewing all the records and giving an opinion to that effect before you can file suit.
2. Were you at fault at all?
Virginia is very strict. The rule against contributory negligence completely bars any recovery if you were at fault even in the slightest degree. Some states will allow the jury to apportion fault and if you were only 5% at fault, you can recover 95% from the defendant. Not so in Virginia. If you are 5% at fault, the insurance company will argue that you are barred from any recovery.
You see this in car accident cases, but mainly in slip and fall cases. If you can’t prove that the defendant knew of the defective condition, you can still prevail if you prove that the defendant should have known about the defect. But that coin has two sides. If the Defendant should have known about the defect, the insurance company will argue that you should have seen it too. If it was open and obvious, and you slipped and fell anyway, then you were contributorily negligent and you cannot recover.
3. Were you injured?
The third question might sound obvious, but I still see it every so often. If you have personal injury case, you have been injured by the negligence of another. If you weren’t injured to the point where you need to seek a continuing course of medical attention, then you do not have a viable personal injury case.
The only exception to this rule is if you suffered some type of permanent injury where there is no medical treatment for the injury but you have a deformity or condition that will last for the rest of your life. If you have a permanent injury, set up an appointment with a personal injury lawyer ASAP.
4. To what extent were you injured?
I alluded to this above, but if you went to the hospital to get checked out but you did’t have any injuries and you didn’t seek any follow up treatment because you are doing ok, then you probably don’t have a viable personal injury case. The size of your case obviously depends on the extent of your injuries.
We always wait until you have reached maximum medical improvement to determine the value of your case because we simply can’t know what your case is worth until we review all of the evidence. There is a cost/benefit analysis that goes into every case evaluation. If it will cost $5,000 to pursue your case and your case is with $7,500, then there is little incentive to pursue that case.
Any honest and competent lawyer will tell you up front whether you should go through the trouble of pursuing a personal injury case. If there is no benefit to you and the cost outweighs the benefit, the lawyer should tell you up front or at least before filing suit.
These factors can work and they can fail. There may be some occasions when I think you don’t have a case but another, very competent lawyer thinks you do have a case. That is why, when I decline a case I always advise clients to seek a second legal opinion within the two year statute of limitations.
This gives you some insight into what a personal injury lawyer is thinking about when deciding to take your case. Call in a schedule your free consultation, but have these factors in mind when you are explaining your situation to your lawyer.