TYPES OF TEXAS PERSONAL INJURY CLAIMS

1.  General Negligence

The most common type of Texas personal injury claim is a negligence claim. To win, an injured person must prove four things: (1) the defendant owed the plaintiff a duty of care: (2) the defendant failed to meet the standard of care; (3) the defendant’s failure caused injuries, which were foreseeable; and (4) the amount of damages.

Duty and Breach

Defendants often admit that they have a duty not to injure others. As a result, the first hurdle most injured parties face is proving that the defendant was negligent — that is, the defendant failed to meet the standard of care. To do this, the injured person must prove that the defendant failed to take some action that a reasonable person would have taken or that the defendant took some action that a reasonable person would not have taken. For example, in a car wreck case, an injured person must prove that the defendant did something an ordinary driver would not do, such as running a red light, following too closely, or speeding. Similarly, in a case involving a defective product, an injured person must prove the manufacturer did something an ordinary manufacturer would not have done, such as not testing the product enough or failing to ensure that the products were made properly.

Causation

An injured person must then prove the injuries were the result of the defendant’s conduct, that but for the defendant’s conduct, the injuries would not have occurred. If, for example, another event caused the injury, or if it pre-existed the defendant’s conduct, it will be hard to win.

The injured party must also prove that a reasonable person would have foreseen that the defendant’s conduct might have caused the plaintiff’s injury, or some similar injury. In Texas law, the test is usually whether the damages are too remote from the original event. For example, in one leading case, a defective product caused a fire at a job site. After the fire department put out the fire, an employee came back to the job and slipped on the foam sprayed by fire fighters. The Texas court decided that the damages were too remote. While a person might have foreseen that a person could have been injured in the fire itself, the court held that a person would not have expected for the person to make it through the fire, but then slip on foam that was left behind by firefighters.

Damages

The injured party must prove what damages he sustained as a result of the defendant’s conduct. Personal injury damages are examined in more detail in another topic.

Comparative fault

A defense often asserted by defendants is comparative fault — that the incident was also caused by the injured person’s conduct. For example, two parties to a car wreck may disagree who caused the wreck. In cases where the defendant claims the injured person caused part of the damage, Texas law requires the jury to give each party a percentage of responsibility. The injured party’s award is then reduced by the percentage of his fault. For example, if a jury awards an injured party $100,000.00, but determines that both the injured party and the defendant were 50% responsible, the injured party only recovers $50,000.00. However, if the jury determines that the injured party is more than 50% responsible, the injured party is not allowed to recover any damages.

2.Texas Medical Malpractice Claims 

Most Texas medical malpractice claims are governed by general negligence principles, but the claims also have their own set of rules and problems. In a medical negligence claim, the injured party must prove that the doctor or hospital failed to use the degree of care that an ordinary doctor or hospital would have used under similar circumstances. To prove this, the injured party must produce testimony from another physician establishing the standard of care and describing how the defendant doctor’s conduct fell below the standard.

Once the injured party proves that the doctor was negligent, the party must prove that he would have been better without the negligence. For example, if a patient in the early stages of breast cancer visits a doctor who fails to diagnose the disease, then the patient would be harmed if she could have received effective treatment. On the other hand, if a patient with fully developed breast cancer visits a doctor who fails to diagnose the disease, then the patient may not be harmed because the doctor could not have done anything about the disease at that late date.

Medical malpractice cases are very expensive to pursue because we must hire doctors to testify that a given doctor was negligent, and that the negligence caused harm. While we typically front these expenses, we are reimbursed by our clients out of settlement proceeds. Therefore, it is important to make sure that the injuries are serious enough to warrant a recovery over and above these expenses.

3. Texas On the Job Injury Claims 

Texas on the job injuries are governed by the Texas Worker’s Compensation statute. If an employer maintains qualified worker’s compensation insurance, an injured employee is allowed to pursue a worker’s compensation claim, but is not allowed to sue the employer. The employee is, however, entitled to sue third parties who have negligently caused the on-the-job injury. For example, if an employee who is covered by worker’s compensation insurance is in a car wreck while on the job, the employee may sue the other person who caused the car wreck, but may not sue his employer.

If an employer does not maintain worker’s compensation insurance, then an employee may sue the employer, and the employer forfeits his comparative responsibility defense. As a result, if an employee can prove that his employer’s negligence caused any part of the incident, even one percent, then the employer is liable for the full amount of damages sustained by the employee.

4. Texas defective product claims

The primary causes of action pursued by persons injured by defective products are negligence, breach of warranty claims, and strict liability claims.

Negligence

The negligence claims are based on the principles described above. Negligence claims may only be brought against the company that engaged in the negligent conduct. For example, if the manufacturer made an error in assembling the product, then the suppliers or company that sold the injured person the product may generally not be sued.

Strict Liability

An injured party may also pursue strict liability claims against a product manufacturer, seller, and any distributors that sold the particular product if the person can prove that there was a manufacturing defect, design defect or a marketing defect in the product.

A manufacturing defect occurs when the product does not work as it was designed to work. For example, a person may have a claim against a car manufacturer if the brakes or seat belts fail to work properly. In these cases, the injured person must prove that the defect makes the product more dangerous than an ordinary person would expect the product to be. To prevail against any particular defendant, the injured person must show that the defect existed when it left the hands of the defendant. A design defect occurs when the product was made correctly according to its design, but the design itself is unreasonably dangerous. For example, cars designed with gas tanks in the rear may explode in a common rear-end collision. For an injured person to prevail on a design defect case, the person must prove that a safer alternative design would have prevented or significantly reduced the chance of injury and was economically and technologically feasible at the time the product was manufactured.

A marketing defect occurs when a manufacturer or seller fails to give adequate warning of the product’s known dangers or when the manufacturer fails to give adequate instructions to avoid dangerous uses of the product.

5. Breach of Warranty

When a product is sold, there may be implied warranties and express warranties related to the sale. Generally, when a product is sold, a seller gives an implied warranty that the product is fit for its ordinary use. Additionally, if a buyer tells the seller why he needs a product and the buyer relies on the seller to pick a suitable product for the buyer’s need, then the seller is giving an implied warranty that the product is fit for that purpose. Each of these implied warranties may be subject to modification or disclaimer in the contract.

A seller or manufacturer may also give an express warranty by making representations about the quality or benefits of a product.

If a person is injured because a product did not live up to these warranties, that person may sue.

DAMAGES THAT MAY BE RECOVERED IN TEXAS PERSONAL INJURY CLAIMS

Reasonable expenses for necessary medical care

To be entitled to reimbursement for medical expenses, an injured person must prove he or she needed the medical care because of the incident and that the charges were reasonable. Defendants and their insurance companies often attempt to argue that charges were not related by pointing to previous injuries that might have contributed to the charges or by arguing that the doctors were just running up the bills.

Physical pain and mental anguish

Evidence of pain and mental anguish can come in many forms. For example, most injured persons can rely on excerpts of doctor’s records where the patient complained of pain, and testimony from others about how the injured person was enduring pain and mental anguish. Occasionally, parties do not suffer pain, but do endure mental anguish. In these situations, the party must prove that he endured something more than mere worry. For example, an injured person may introduce evidence of uncontrollable crying, sleeplessness, or a change in personality.

Loss of earning capacity

Loss of earning capacity includes lost wages or lost work time. If a person is paid hourly or salaried it is usually easy to calculate lost wages. On the other hand, business owners, professionals, commissioned workers, artists, musicians, and athletes present special challenges to determining lost earning capacity. Please call us for more information.

Physical Impairment

An injured party may also be compensated when an incident limits the person’s activities. These activities include everything from personal hygiene, dressing and household chores, to the inability to exercise or pursue hobbies.

Disfigurement

An injured party is also entitled to recover damages to compensate for any disfigurement, such as scarring or lost limbs.

Injuries to spouse

If a spouse is injured in an incident, the other spouse may be able to recover damages for loss of household services and loss of consortium — the loss of the right of spousal affection, comfort, sex, and companionship necessary for a successful marriage.

Bystander cause of action

A person who witnesses an incident that injures his or her mother, father, child or sibling may be entitled to compensation for the mental anguish endured by watching the incident.

Exemplary damages

An injured party may be entitled to exemplary damages if there is proof that the defendant acted with malice or if the party can show entitlement to exemplary damages based on other theories or statutes. Although awards for exemplary damages receive a lot of publicity, these awards are relatively rare. If the injured party is able to prove entitlement to exemplary damages, the amount of the recovery is generally limited by statute depending on the extent of the person’s damages.

TEXAS WRONGFUL DEATH CLAIMS

Texas wrongful death claims are governed by the same liability rules governing other claims. For example, the estate or beneficiaries will be entitled to recover from a company if the deceased was killed as a result of the company’s negligence. However, damages in death claims are governed by the Texas wrongful death statute and the survival statute. The wrongful death statute regulates the recovery that family members may seek for their own damages. The survival statute regulates what damage the estate may seek on behalf of the deceased for damages suffered between the time of the injury and the time of death.

Wrongful death

The Texas wrongful death statute and the resulting court interpretations specifically spell out recoverable damages.

Surviving Spouse

A surviving spouse may recover the following damages in a death claim:

1. Pecuniary loss — the loss of the care, maintenance, support, services, and advice the spouse would have received from the deceased spouse had the spouse lived.

2. Loss of companionship and society — the loss of the benefits flowing from the love, comfort, companionship, and society the spouse would have received from the deceased spouse had the spouse lived.

3. Mental anguish — the emotional pain, torment and suffering experienced by the spouse due to the death of the deceased spouse.

4. Loss of inheritance/loss of addition to the community estate — the loss that the deceased spouse would have added to the estate at the end of his or her natural life.

Surviving Child

Like a spouse, a surviving child may also recover for pecuniary loss, loss of companionship and society, mental anguish, and loss of inheritance.

Surviving Parents

Surviving parents may seek pecuniary loss, loss of companionship and society, and mental anguish damages.

Exemplary Damages

A surviving spouse or child may also be entitled to exemplary damages if the defendant acted with malice or committed some other act entitling the survivors to exemplary damages.

Survival claims

In addition to those claims that the survivors can make for their own damages, the estate of the deceased may also make a claim to recover the medical and funeral expenses incurred by the deceased and for any pain and mental anguish the deceased experienced between the time of injury and death. A big issue in survivor claims is whether the deceased immediately died in the collision or incident. If the deceased immediately died or was not conscious, then the estate is generally not allowed to recover any damages for the deceased’s mental anguish. On the other hand, if the deceased did not immediately die, then the estate can recover mental anguish damages.

PROCEDURAL STEPS IN A TEXAS PERSONAL INJURY CLAIM

Investigation and recovery

In the initial stages of the case, the client’s main concern should be recovering from the injuries. While the client is undergoing treatment, we may contact witnesses, take photos, and gather documents and other physical evidence.

Demand

Once it appears the client is almost recovered or is reaching maximum recovery, we begin collecting the client’s medical records and preparing a settlement package. The amount of time it takes to prepare the settlement package is often dictated by how long it takes medical providers to forward records to us.

Negotiation

After the settlement package is sent, we give the defendant or insurance company a couple of weeks to go over it. When the negotiations begin, our client must approve any offers or counter-offers. Ordinarily we should know whether we will settle or whether we will have to file suit within 30-60 days from the time we send the settlement package.

Filing Suit

If the other side fails to make a fair offer, we will file suit, with your permission, of course.

Written Discovery

During the lawsuit, the parties exchange information through the discovery process. Written discovery consists of Requests for Disclosure, Interrogatories, and Requests for Production. Requests for Disclosure and Interrogatories are questions one side sends to the other trying to find out the facts of the case, background information, and the other party’s legal theories. A Request for Production asks each side to provide documents that are relevant to the case. In some cases, parties will send Requests for Admissions, which ask parties to admit whether certain assertions are true.

Depositions

In addition to written discovery, the parties usually take depositions of the parties, treating physicians, experts and other people who have knowledge relating to the case. During depositions, the attorneys ask the witness questions about the lawsuit. The witness is sworn under oath and the testimony is admissible at trial just as if the witness had appeared live at trial. Some depositions are videotaped so the videotape may be shown to the judge or jury.

Mediation

In most cases, the parties will also be required to attend a mediation if the case has not already settled. Mediation is essentially a structured settlement conference. The parties usually begin the mediation in one room, with each side telling its version of the case. The mediator then separates the parties and practices shuttle diplomacy by going back and forth between rooms with arguments and settlement offers. Mediators often act as “devil’s advocates," asking the parties to consider the weaknesses of their case. Mediators do not decide who’s right and who’s wrong; they facilitate the settlement.

Trial

If the case does not settle in mediation or otherwise, then the parties will proceed to trial to have a judge or jury determine the outcome of the case.

Appeal

Once the trial has been completed, the losing party has the right to appeal the judgment to the Court of Appeals and possibly the Supreme Court. Appeals can potentially last several years.

Collection

Once the plaintiff obtains a final judgment, the plaintiff may begin attempting to collect the judgment from the defendant. If the defendant is insured, the insurance company will usually tender the amount owed. If the defendant is not insured, the plaintiff must take actions to begin discovering and collecting the defendant’s assets. A plaintiff can continue collection activities until the judgment is satisfied, unless the defendant files bankruptcy.

TIPS FOR HANDLING YOUR TEXAS PERSONAL INJURY CLAIM

Get the treatment you need, but only the treatment you need.

Get the treatment you need to get better, but do not try and seek extra treatment to increase the value of your case. If adjusters or juries believe you have received too much treatment, it will significantly impair your claim.

Don’t talk to your medical providers about your claim.

Your medical providers are not concerned with your claim, and discussions of a claim may affect their view of your injuries.

Follow your doctors' orders.

 Your doctor will give you specific instructions such as following up with another appointment or performing home exercises.  Follow those instructions.  Following those instructions not only help you get better, but it also helps your claim.  You can be assured that if you fail to follow doctors' orders that your insurance adjuster or defense attorney will use that information to argue that you were not hurt.

Keep a journal for your attorney.

Ask your attorney whether you should keep a journal.  We often recommend clients keep journals to help them document their trials and tribulations with pain, rehabilitation, and recovery.  Journals can be helpful by describing the situation as you go along instead of trying to remember how things went.  We will also frequently requests victims' spouses or significant others' to keep journals to give us a different perspective of the clients' injuries and recovery.

Document your injuries.

The old saying that "a picture is worth a thousand words" holds true in the personal injury context.  Many clients think to take pictures of their damaged vehicles, but few think to take pictures of their injuries.  But pictures can make a huge difference in the recovery from an insurance company or jury.  Take photos of any bruises, casts, scars, etc.  If you have physical therapy, take video of some of the more difficult tasks that you have to undergo at therapy.  Documenting not only helps prove that you are injured, but it also helps adjusters and jurors relate to you and your injuries.

Do not give a recorded statement.

Insurance companies typically seek recorded statements from injured persons. Since you do not have the same opportunity to take a statement from the other parties involved, a recorded statement gives them an advantage.

Do not judge your case by others’ experiences.

All injured persons hear from friends who knew someone else who was hurt and received an outrageous amount of money. Do not judge your likely results by the results of others. Many factors go into a case, including when the incident occurred, the law in effect at the time, how effective the parties and experts testify, and procedural issues.