Frequently Asked Questions
After the initial shock of suffering an injury or learning of a loved one's death, questions often arise regarding whether any one may be responsible, or at fault, for the accident and resulting injuries or death and what recourse is available to those who have suffered harm. Our clients want answers about what happened, accountability for what happened, and they want to ensure what happened does not happen to anyone else. Reaching out to an experienced personal injury attorney, wrongful death, or medical malpractice lawyer is often the quickest way in which to get answers.
Attorneys Todd Barsumian and Jonathan Armiger of Barsumian Law LLC have over thirty years of combined experience in the fields of personal injury, wrongful death, and medical malpractice law. They know the challenges the injured and those left behind by a wrongful death face when seeking a legal remedy for the harm that has been caused to them and their loved ones. They offer a free consultation for callers with potential personal injury, wrongful death and medical malpractice cases, so contact them to see if they may be able to help you and your family.The Most Frequently Asked Questions About Personal Injury, Wrongful Death, and Medical Malpractice
Below are some of the most commonly asked questions of attorneys who practice in these areas of law.
- Can I receive compensation for my injury?
- Do I have a good injury case?
- How long do I have to file a personal injury claim in Indiana?
- If I have an open claim with the insurance company is it ok if I do not file a lawsuit before the statute of limitations passes?
- I've just been in a car accident, what should I do?
- Can I still recover money if I am partially at fault for my accident?
- How much will I have to pay a personal injury attorney to handle my case?
- Will I have to pay the expenses in my personal injury case?
- What do I do with my medical bills relating to my personal injury?
- Do I have to pay my health insurer back for the medical expenses it paid relating to my accident?
- Will my personal injury attorney help me resolve claims by my health insurers as part of resolving my case?
- How much can I expect to recover for my injury?
- What is a wrongful death case worth in Indiana?
- When can I expect to get a settlement for my injuries?
- Can my attorney resolve my case without my permission?
- What does a personal injury lawsuit involve?
To have a right to receive compensation as a result of an injury or death means that the law recognizes, through either court precedent (known as the common law), laws passed by the legislature (known as statutory law), or both, that an individual or, in the case of a deceased victim, their family or estate, may seek a legal remedy for the harm and losses caused by another’s wrongful conduct. However, compensation is generally a decision left to the judge or jury through the court's judgment or a jury's verdict.
Technically speaking, absent the injured person or estate of the deceased taking legal action and succeeding in achieving a verdict, there is no "right" to recovery, there is only a possibility. The insurance industry markets and sells liability insurance, including automobile insurance and medical malpractice insurance, to help cover this possibility of a verdict or judgment being rendered against its insured, as well as to provide a defense to their insured.
In Indiana, a lawsuit is brought against the at-fault party, not against their insurance company. And, in many States, including Indiana, there is no obligation on the insurer of the wrongdoer to make payment to the injured party or the estate of a victim of wrongful death. In some States there are third-party bad faith laws requiring that insurance companies engage in fair claims settlement practices, meaning that when an injured party or an estate presents a claim and threatens legal action, the insurance company must deal with them in good faith, even though they are not the policyholder, or face a potential lawsuit. There is no third-party bad faith cause of action in Indiana.
Whether or not you or a loved one's estate may ultimately have a right (or more accurately stated, an opportunity or possibility) to receive compensation for an injury or death is often quite fact dependent and can be difficult to answer without an attorney conducting a thorough investigation into the matter. An experienced personal injury attorney is often able to provide an overview of the issues in any given case, the probability of recovery, and the likelihood that a case may settle before being filed in court or tried to a judge or jury or the likelihood of success before a jury.
Do I have a good injury case?
This question most often arises in the context of medical malpractice cases. While many attorneys can quickly gather facts and investigate the circumstances surrounding an auto collision to make a reasonable determination regarding fault and the likelihood of recovery, it is often necessary to consult expert physicians to opine on whether malpractice occurred prior to pursuing a medical malpractice case, and in any case, absent very limited exceptions, expert testimony is required to prosecute all medical malpractice cases in Indiana, or the case can be dismissed.
Expert testimony is also often required in cases in which liability is not necessarily disputed but the nature and extent of a person’s injuries are in dispute. For instance, there may be questions in a case as to whether a car accident caused the plaintiff’s injuries. There may also be questions as to the extent of the plaintiff’s damages, such as the amount of lost wages, in which expert economists are needed, or the necessity of ongoing medical care and treatment, in which life-care planners are often used.
Under Indiana law, you have to show that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached that duty, and that the defendant’s negligence was a responsible cause of the injury and damages. We investigate cases by gathering evidence, including medical records, medical bills, photographs, and witness statements, and by consulting with experts, such as physicians, engineers, and economists as necessary to prove liability and damages in your case.
How long do I have to file a personal injury claim in Indiana?
Let's be clear. You should never rely upon getting accurate answers from the Internet to determine how long you may have to file a personal injury claim in Indiana or any other State. Failure to accurately identify and calculate the statute of limitations may mean the complete loss of the claim.
Statutes of limitations prevent persons or estates who have waited beyond the time period provided by law from seeking a legal remedy due to their failure to take formal legal action within that time period. If you have waited a while since the incident and you are wondering how much longer you may have, then you should not delay any longer; contact an attorney to discuss your potential case immediately.
The length of time you may have to perfect a legal claim can be fact sensitive and depend on the nature of the claim and who it is against. For example, to bring a lawsuit against a governmental entity for injuries or wrongful death in Indiana, you must perfect the right to bring a lawsuit by first filing a tort claim notice. The time for filing a tort claim notice against a county or municipality is only 180 days. The time for filing a tort claim notice against the State is only 270 days. If the tort claim notice requirement is not substantially complied with and a lawsuit is later filed, the case will likely be dismissed, no matter how much legal merit there may be to the claim otherwise.
Assuming there is no governmental entity involved, an injured person or an estate generally has two years in the State of Indiana to file a personal injury or wrongful death lawsuit. However, there can be limited exceptions in the case of minors, incapacitated persons, or those who have been unable to discover that they were injured through no fault of their own. In medical malpractice cases, a claimant has two years from the alleged wrongful act or omission constituting malpractice to file a lawsuit. Only very limited exceptions apply to this two-year time limitation.
For example, a patient who has surgery and has a foreign object left in their body may have more than two years if they did not know and should not have reasonably known about the medical error within the two years and could not have discovered it in the exercise of reasonable diligence. Even if there is no reason to suspect malpractice, the two-year statute of limitations can still apply if reasonable diligence would require the patient to look into the possibility of malpractice given the condition and the treatment that failed to improve it was known. In Indiana, the majority of medical malpractice cases must be filed first with the Indiana Department of Insurance when the medical provider has been qualified for protections by Indiana's Medical Malpractice Act. However, sometimes providers are not qualified under the Medical Malpractice Act, so they must be sued in Court instead. Such cases can be quite complex and sometimes must even be dual-filed with both the Indiana Department of Insurance and the appropriate court when there are both qualified and unqualified providers.
If I have an open claim with the insurance company is it okay if I do not file a lawsuit before the statute of limitations passes?
No. Filing a claim with an insurance company or governmental entity is not the same as filing a lawsuit. Filing or presenting a claim may put the insurer or governmental entity on notice of your intent to file a lawsuit, but it is does not have the same effect. Filing a lawsuit, or filing a proposed complaint with the Indiana Department of Insurance in the case of a medical malpractice case, is the formal legal action required to timely file a claim, which should be sufficient to prevent a challenge under the statute of limitations against the persons or entities properly sued.
I've just been in a car accident, what should I do?
You should first and foremost get the medical treatment you need before you worry about hiring an attorney. You and your family’s health and well-being are of primary importance. However, if there is any question as to who may have been at fault for the accident, then you should be extremely careful about speaking with the other driver's insurance company. Although your own insurance company may have your best interests in mind and you do have a duty to cooperate with their investigation under your policy, the other driver's insurance company may be quick to try to take a statement from you and frame questions suggesting you were at fault. More importantly, you are under no obligation to speak with the other driver's insurance company. Insurance companies know the excuses they can make for their insured's own fault and will often frame their questions in such a manner as to diminish their insured's fault or your injuries and place fault on you.
For example, they might ask, "You knew this was a busy intersection this time of day, but you didn't bother to hesitate for the traffic to clear before proceeding?" Or, "I understand you had your cell phone in your hand after the accident, so you must have been texting or making a call I assume?" Answering "yes" to either of these compound questions might be partially accurate, but the second part of the answer may very well be, "no." However, once the insurance company gets a "Yes, but..." you may not get another chance to clarify your answer. It would be wise to get the treatment you need while considering whether it may be a good idea to seek legal representation.
Many people do not believe they need to involve their own insurance company when they have been in an accident. However, it is generally a good idea for several reasons. First, regardless of what the police report says about fault, the report is not binding on the insurance companies, the judge, or jury. You can read our blog about that here. It may in fact be accurate, but there have been many cases where the police report has been overcome in a later legal action or where an insurance company has conducted its own investigation and found differently. Second, the other driver's insurance company does not work for you. They may be friendly and ask how you are doing and suggest they will help you with your bills, but in all likelihood, they will not pay a single one of your medical bills until you agree to sign a release of your claim against the other driver, their insured. When you may have a long course of treatment ahead and your injuries may not be fully known, the last thing you should do is release your claim against their insured. Third, you may very well have "no fault" medical payment insurance through your own policy that may help pay some of your medical bills or help with your out-of-pocket costs. If your bills will greatly exceed your medical payment insurance, then it may be a good idea to involve an attorney who can help ensure the insurance is utilized on your behalf in the most cost-effective manner. And, if you do hire an attorney to help you resolve your case, Indiana law provides that your obligation to reimburse your own automobile insurance company for the medical payments it made may be reduced by up to one-third.
The bottom line is that if your car accident injuries are severe enough, there is no reason not to seek a no-obligation, free consultation with an experienced car accident attorney. We offer free consultations and are willing to meet with you and your family at your home, the hospital, or your place of work.
Can I still recover money if I am partially at fault for my accident?
With the exceptions of medical malpractice claims and claims against governmental entities, Indiana follows modified comparative fault to accidents between private citizens. What this means is that if you are found by a jury to have been 50% or less at fault for the accident, then you are still entitled to recover the damages awarded minus the percentage of your fault multiplied against those damages. In medical malpractice claims or if the accident was caused by a city, county or state government employee, then, unfortunately, Indiana follows contributory negligence. This means that if you are found by a jury to have contributed in any way to your injuries or the accident, then you may not recover damages. Because percentages of fault are not compared in medical malpractice cases and in cases against a governmental entity, it is an all or nothing proposition. Some States like Kentucky follow pure comparative fault, meaning that even if you are 99% at fault, if the other party is 1% at fault, you will recover 1% of the damages awarded.
How much will I have to pay a personal injury attorney to handle my case?
Any fee agreement between a client and attorney should be reduced to writing and signed by all involved just like any contract. Although an attorney and client may reach agreement on any reasonable fee percentage, attorneys will often charge 1/3 of the amount recovered prior to settlement for straight-forward accident cases. Many attorneys will provide that the fee will increase at certain stages of the case, such as if a complaint is filed or if the case is tried to a jury, sometimes to 40% or more. Premises liability and product liability cases are typically riskier propositions than auto and truck accident cases. Therefore, the attorney fee in such cases may start at 40% or more. As part of significant tort reform pressure and as a disincentive for personal injury attorneys to bring cases against medical providers, Indiana now limits the fee that may be charged in medical malpractice cases to 32% across the board.
Will I have to pay the expenses in my personal injury case?
An attorney who takes a personal injury case typically agrees to handle the case on a contingency or percentage basis as described above. The attorney will often also agree to advance case expenses (such as the cost of gathering medical bills, police reports, taking depositions, hiring experts, etc.) on the condition that the expenses get reimbursed if there is a recovery. However, most personal injury attorneys will agree that if there is no recovery, there will be no attorney’s fee or expense. This is often referred to as the "No Recovery-No Fee" agreement. It should be emphasized that an attorney may not advance non-case expenses, for example, medical bills.
What do I do with my medical bills relating to my personal injury?
You should make sure your healthcare providers have your health insurance information, if you have health insurance, and request that your healthcare providers bill your health insurance. This is important for a number of reasons, including making sure you get the benefit of health insurance contracted adjustments from your full medical bills. You will also want to see if you have medical payments coverage under your own automobile insurance policy, which can help pay for medical bills and/or your out-of-pocket medical costs. If you do not have health insurance, some medical providers will still offer uninsured adjustments or reductions of your medical bills, and it is worth asking if they will do so. As for the patient responsibility portion of your medical bills, whether you are uninsured or have deductibles or co-pays, we generally recommend paying those, or begin making payments towards them under a payment plan if offered by your medical provider. Usually, your medical bills will either be paid by you upfront or out of your settlement once obtained, and it is generally better to have them paid early to avoid any collection activity.
Do I have to pay my health insurer back for the medical expenses it paid relating to my accident?
Most likely. When a health insurer pays a medical expense relating to an accident or injury, it acquires either an equitable or legal right to seek reimbursement. If you have been in an accident, you may receive a letter from your health insurer putting you on notice of their subrogation interest and asking you to provide them with information about the accident. This is often determined by how your treatment is coded. In some situations, such as Medicare, the right to reimbursement is automatic and there can be severe consequences for failing to consider and reimburse Medicare's interest. In other situations, such as Medicaid, there may be no right absent the filing of a notice, which creates what is known as a lien. Just as a contractor who performs work on your house may file a lien against your house, health insurers may claim a lien on your settlement or judgment in your personal injury case. Requirements for perfecting such a lien may vary. For example, an employer-sponsored plan may have contractual and statutory rights under a federal law known as ERISA, which governs employer-sponsored health plans. Most plans impose a duty of cooperation on the employee, require the employee pay back any recovery dollar-for-dollar, and state that the plan does not have to pay the attorney. Many such plans state that any payments out of the plan for accident-related bills create a constructive trust in that amount over the proceeds recovered. Some plans provide that if the employee does not cooperate, they can have their health insurance terminated.
Will my personal injury attorney help me resolve claims by my health insurers as part of resolving my case?
Most personal injury attorneys will assist their clients with making sure those entitled to reimbursement are properly reimbursed. In the case of Medicare, they are required to do so. Accordingly, many attorneys will obtain their client's permission at the outset of the case to pay and negotiate medical liens.
How much can I expect to recover for my injury?
The value of a personal injury claim can vary greatly depending on the circumstances surrounding the injury. Injury claims are comprised of two components of damages, special damages and general damages. Special damages are quantifiable things such as medical bills and lost wages. General damages are things that are not easily quantifiable such as the nature and extent of injuries, the effect of injuries on the plaintiff's ability to function as a whole person, whether the injuries are temporary or permanent, physical pain and suffering, whether a previous injury was aggravated, disfigurement or deformity, loss of enjoyment of life, and, where there is a spouse, loss of consortium, which means the impact on the marital relationship.
What is a wrongful death case worth in Indiana?
The value of any case, including a wrongful death case, is dependent on a number of factors, including the age of the decedent, whether he or she left behind a surviving spouse or dependent children, the amount of medical bills and funeral and burial expenses, and the income and support the decedent provided to the survivors. Generally, damages can be awarded to survivors for the loss of love, care, affection, and support of the decedent and for medical and funeral expenses.
Recoveries in claims against governmental entities, even in the case of wrongful death, are capped by law at $700,000 in Indiana. In cases in which an adult dies without a spouse or dependents, recoveries for non-economic damages, such as loss of the adult person’s love and companionship, are capped at $300,000. Recoveries in medical malpractice cases are capped at $1.25 million for acts of malpractice occurring before July 1, 2017, $1.65 million for acts of malpractice occurring before July 1, 2019, and $1.8 million for acts of malpractice occurring after July 1, 2019.
The value of any case often also turns on available insurance coverages, and in limited cases, the extent of the defendant’s assets which might be available to satisfy any award of damages. We seek to recover fair and just compensation for our clients in wrongful death cases and are proud to have recovered millions of dollars on behalf of our clients. However, every case is different and past results do not guarantee an outcome in your case. Contact us today to discuss how we might be able to help you or your family through the legal process involving wrongful death claims.
When can I expect to get a settlement for my injuries?
The length of time it takes to successfully prosecute personal injury and medical malpractice cases varies with each case and depends on factors such as how clear is the defendant’s liability, the nature and extent of the injuries being claimed, and the amount of compensation being sought for the injuries and damages. Many car accident cases, such as rear-end automobile collisions, can be settled without having to file a lawsuit or try the case before a jury. Premise liability cases, such as slips and falls on snow or ice at a business, can be more difficult and are more likely to require the filing of a lawsuit, litigation, and in some cases trial. Given the nature of medical malpractice cases, many require the filing of a lawsuit before the Indiana Department of Insurance and presentation of the claim to a medical review panel, which is made up of one attorney chairperson and three healthcare providers. While a medical review panel is not a judge or jury and does not decide your medical malpractice case, claimants must get opinions from medical review panels to prosecute their cases in court in Indiana and the opinions of the medical review panels are often used by the parties in the presentation of their cases in court.
Can my attorney resolve my case without my permission?
No. Indiana law requires that attorneys abide by a client’s decisions concerning the objectives of representation and consult with clients about the means to obtain those objectives. A decision whether to settle a matter must be made by the client.
What does a personal injury lawsuit involve?
We first discuss potential clients’ claims with them and conduct an investigagtion to see if we would be able to assist in helping them obtain redress for the legal wrong done to them. If we are able to help, we will have clients execute an attorney fee agreement that sets forth our contingency fee and how we handle expenses, as well as other documents, including health authorizations.
We will gather necessary evidence in the case, including crash reports, incident reports, third-party investigations, photographs, video, and witness statements. If the client is still undergoing treatment, we will usually wait until such treatment is completed or until the client has reached maximal medical improvement before initiating the pre-suit negotiation process, which involves submitting a settlement demand on the at-fault party or the at-fault party’s insurance carrier. In some cases, as in the case of an uninsured or underinsured at-fault driver, we may also initiate a claim for damages against a client’s own insurance company.
We are also often asked, "Will I have to go to Court?" If a pre-suit resolution cannot be reached within the applicable statute of limitations, we will file a lawsuit. Once a lawsuit is filed, the parties will engage in discovery, a process by which both sides share information about the case and the parties involved with each other. In medical malpractice cases, a medical review panel will need to be formed and opinions obtained from the medical review panel before prosecuting the case in state court. At some point during the litigation process, depositions will likely be taken of the plaintiff and the defendants and any experts or other necessary witnesses. Most cases will then proceed to mediation, which is often ordered by the court prior to presenting the case to a jury. None of these events normally take place in a courtroom. Most will take place in a law firm conference room. If the case is not successful at mediation, then the case will go before a jury. This will often be the first time you will have to actually go to court. Although most cases settle, some do not. Know that if your case does not settle for a fair amount, we are willing to represent you zealously at trial.
Personal injury and medical malpractice lawsuits can be complex with many interested parties, including the plaintiff, defendant, and various insurance companies. We seek to provide high quality, client-centered representation for our clients, in investigating their claims, negotiating their claims, and advocating on their behalf. If you or a loved one need help in navigating the legal claims process in serious personal injury or medical malpractice claims, contact Barsumian Law LLC today.