HOW SOCIETY VIEWS PERSONAL INJURY VICTIMS WITH SUSPICION AND LACK OF EMPATHY
Every year in the United States of America, personal injury cases that are filed against businesses, organizations, and private citizens in response to a life-altering accident or catastrophic injury. In these cases, approximately 96 percent are settled out of court. The goal for the victim and insurers (in best outcomes) is to provide rehabilitation that allows the injured to resume activities of normal living, including employment and self-care.
For victims of injury due to violence or gross negligence, the process of making a claim and filing suit is neither easy, nor inexpensive; a fact that few people who have not undergone personal injury litigation may understand. And despite the legitimacy of an injury claim, citizens are frequently faced with prejudice and suspicion, calling into question the integrity of the injured, and monetary motivation for pursuing compensation for their injury.
Painting the victim as exploiting a painful and disruptive injury can mar both the legitimate legal process, and complicate physical and emotional recovery and increase both costs and inconvenience as an obstacle to rehabilitation. In this article, we will look at some of the inherent bias that personal injury victims face, and what legal professionals can do to educate the public and inspire empathy.
The Cycle of Public Misinformation About Personal Injury Liability and Compensation
The public labors under several misconceptions about personal injury, and the legal community is partly to blame for the information gap. Some legal professionals use sensational personal injury claims as ‘headliners’ on websites designed to increase business and intake of personal injury cases. This is the first disservice that the legal community offers the public; a concept that every personal injury or malpractice suit will result in an astronomical settlement of hundreds of thousands, to millions of dollars in reparation.
To the unknowing public who has never experienced personal injury litigation firsthand, the entire process is simplified to three (inaccurate) steps:
- The victim experiences a small to significant injury due to negligence.
- The victim acquires legal representation to file a personal injury suit.
- The victim attains a sizeable settlement for pain and suffering.
As a legal professional, it is important to both educate and promote awareness of the misinformation regarding personal injury claims. And certainly, a quick scan of many litigator websites show evidence of supporting this inaccurate notion from the public and client perspective. The legal process and journey that a personal injury victim takes is neither quick, nor easy, and outcomes are frequently not “as seen on TV,” with claimants enjoying a luxurious life after a sizable settlement.
The Burden of Proof and Personal Injury Compensation
Personal injury victims must prove several factors that support a substantial loss, both in terms of quality of life (pain and suffering), loss of income, and inability to perform pre-loss activities of employment. Favorable personal injury settlements are based on a profit and loss statement on behalf of the claimant, and seek to reimburse only the monetary amount that was lost by the victim, as a direct result of the injury.
For most personal injury settlements, compensation is awarded as a reimbursement of medical expenses and costs of rehabilitation first. For instance, if the victim required home care, therapeutic services, expensive prescriptions, or medical devices and equipment, the costs associated with those expenses are the priority for reimbursement in the awarded settlement.
There is a great misconception about the value of “pain and suffering” in a personal injury case, thanks in part to media misinformation and the sensationalized reporting of class action settlements in part. In many states, there is a compensation cap for pain and suffering that ranges from $350,000 to $750,000 for non-expense related damages and personal loss. Non-economic loss amounts are the only aspect of personal injury settlements that are subjective, and depend heavily on permanent physical loss of limbs, organ function, or mobility.
As most Americans have employer or private healthcare insurance, the settlement considers all costs of healthcare, even those that were covered by health insurance. However, immediately following the payment of a personal injury claim, the insurance company will seek an adjusted repayment of the amount. For instance, if a claimant received $150,000 reimbursement for hospital care that was covered by the insurance company, that award is earmarked for reimbursement to the insurer; the claimant is not permitted to retain that amount, specifically awarded as medical expense reparation. It belongs to the insurer, not the injured, a fact that the public at large is frequently not aware of.
In a small percentage of cases, physical loss is substantial enough to warrant a maximum award for pain and suffering, however the one-time settlement does little but help claimants adjust and cope with ongoing medical expenses, because of the injury loss. And don’t forget, settlements are also taxable by the IRS.
The Vilification of Personal Injury Claimants
In the media, the misreporting or sensationalized commentary on personal injury case awards or class action suits does a great disservice to Americans. Personal injury victims are often portrayed as con-artists, or individuals who are deliberately seeking compensation by perpetuating a personal injury for financial gain. There are certainly some cases of personal injury which fail to pass the scrutiny of the court, and those cases are vetted by an aggressive defense of the accused negligent party. The stipulations that are required to prove loss, pain and suffering, and the infallible negligence of the accused are effective at “weeding out” unscrupulous claims. The system works.
It is unfortunate that authentic victims of personal injury are frequently presumed to be dishonest, or seeking financial gain by filing suit. This social vilification of personal injury claimants contributes to a hesitancy to report legitimate cases (particularly related to workplace injuries), and makes the hard, long road of litigation and recovery even more difficult, as it makes them question the validity of their claim for compensation.
This is something that legal professionals can help change by more accurate disclosure of case success rates and generalized compensation amounts. While marketing the services of personal injury representation, legal websites should more clearly state what an injured should expect from the process, and how settlement amounts are determined by expense reimbursement, not by subjectivity.