Today I would like to talk about a frequent question that people ask of me regarding personal injury claims. The question that I often hear is “Mr. Katz, can I sue?” An easy question to ask but not always an easy question to answer.
The first question that needs to be answered is what type of claim do you have?
An Automobile Accident? Car Accident? A Slip and Fall incident? Defective Product? Medical Malpractice / Medical Negligence? Kaiser Malpractice / Kaiser Negligence?
The First Question That Need to Be Answered is What Type of Claim Do You Have?
Do you have an automobile accident or car accident claim?
Do you have a slip and fall incident?
Do you have a claim regarding a defective product?
Do you have a medical malpractice / medical negligence claim?
Do you have a claim against Kaiser Permanente for malpractice / negligence?
Depending upon the type of claim you have, the facts of your incident greatly affect the strength or weakness of your claim. Some cases, depending upon facts, require the use of expert testimony to establish liability, this is overwhelmingly true in medical malpractice cases and defective product cases.
Do I Have a Strong Personal Injury Case?
In a personal injury action based upon negligence you must prove the elements of your claim to a judge or a jury. If any one element is missing, you cannot win. By way of example, even if you can prove that the defendant was negligent but you did not suffer any injury you will lose your case.
Basically the elements that you must prove at time of trial are:
Duty
Breach of the Duty
Causation both Legal and Proximate
Damages
These four elements are examined in greater detail below.
Duty
Did the defendant ( the other driver, property owner, doctor, nurse, healthcare provider, etc.)
owe a duty to you? A duty of care arises in cases in which the law recognizes a relationship between the defendant and you, and because of the relationship, the defendant is obligated to act in a reasonably careful manner in regard to plaintiff.
A driver on the road owes a duty of due care to other folks on the road or street including motorists and pedestrians for instance. A property owes a duty of due care to people coming onto the property and must inspect and correct dangerous conditions that exist on the property and keep in the property in reasonably safe condition. A doctor or other health care provider owes a duty of due care to their patients.
Breach of the Duty
A defendant is will be held negligently responsible if the defendant breaches the duty of care owed to the plaintiff. A defendant who fails to act as a reasonablely prudent individual in the same or similar circumstances breaches their duty. Generally speaking whether a defendant breached a duty of care is a question of fact. In some cases depending upon the facts and circumstances, we need expert testimony to establish breach of a duty, and this is often true in medical malpractice claims.
Causation – Substantial Factor
A injured party must show that the defendant’s acts or omissions were a substantial factor in causing injury. A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.
Often an injured party believes that because a physical issue arose after an incident the defendant must have caused the problem, this is not necessarily so. Often we need expert testimony by treating doctors to establish a causal relationship between an incident and injury. The same applies for claimed economic losses. If you cannot prove that the defendant’s actions were a substantial factor in causing your claimed damages then you cannot win on those claims.
Damages
You must prove that the negligent act of the defendant caused you harm, usually as physical injury to a person or to property. It is not enough that the defendant was negligent, i.e., failed to exercise reasonable care. For instance, suppose a doctor negligently gives you the wrong prescription and you go to the pharmacy to have filled. The pharmacy catches the error and calls the doctor and they give the correct medication to you. Also assume that had the wrong prescription be given to you, and you would have died! In my opinion you have no case because the doctor’s failure to exercise reasonable care did not result in actual damages, now had you taken the wrong medication and you died, well . . .
Conclusion
Whether you can sue and win, depends ultimately on facts or your individual claim and the relative strengths or weakness of each element of your claim.
Should you wish to discuss your matter with me, give me a call at 626-796-6333