Common Misconceptions Regarding Personal Injury

This is a common misconception, in part because it’s too simplistic. Before a victim can receive monetary damages, it has to be proven that the at-fault driver was negligent, meaning that it would have to be proven that the driver failed to act as a reasonable and prudent person would under the same or similar circumstances.

Insurance companies often argue that, although there may have been fault in a situation in which someone’s car was rear-ended, they feel sure that the driver was not negligent and it was just an accident that could have happened to anyone. On the other hand, the victim’s attorney has to prove that the “at-fault” driver failed to act as a reasonable and prudent person under the same or similar circumstances.

This also is a misconception, because Texas works under a comparative negligence scheme, meaning that as long as the person was not more than 50% responsible for causing an accident, they would be able to recover damages up to the percentage of fault of the other driver minus their own percentage.

For example, if there was a collision at an intersection and the victim was 50% at fault and the other driver was 50% at fault, then the victim would be able to recover 50% of their damages. If they were 25% at fault and the other driver was 75% at fault, then they would be able to recover 75% of their damages. However, the victim would be barred from recovering any damages at all if they were 51% at fault and the other driver was 49% at fault.

The mere fact that the person was injured on the premises of a store would not automatically make that store owner legally responsible for the damages. In a premises liability case, the person would have to prove that the store owner either knew or should have known about an unreasonably dangerous condition and failed to reasonably warn or remedy the condition before anyone was injured. The person would be able to recover damages if it met that legal standard, although the damages in a premises liability case would also be reduced by the person’s own percentage of fault, and they would not be able to recover if their level of fault was greater than 50%.

While it is true that the other driver being cited by the investigating officer could serve as evidence of the other driver’s negligence, it would not be decisive by itself. Proof that the other driver was negligent and caused the crash must be proven by a preponderance of the evidence.

That is not necessarily the case. Whether or not the property owner can be held liable will depend on the status of the victim on the other person’s property. If the person was an invitee on a business property, then the business would owe the person a standard of warning, or they would need to remedy any unreasonably dangerous conditions which they knew about or should have known about.

Likewise, if the person was a social guest, they would have to prove that the owner of the premises had actual knowledge of an unreasonably dangerous condition and failed either to warn the victim about it or to remedy the unreasonably dangerous condition. The social guest would also have to prove they did not have any prior knowledge about the unreasonably dangerous condition existing on the premises, because those legal standards would have to be met for the person to recover damages in a premises liability case.

This is another misconception, and one that can cause problems down the road. The victim should seek medical attention as soon as possible after they become aware of an injury that would necessitate medical treatment. Someone with injuries of an emergency nature should seek immediate care in an emergency room.

Hospitals in Texas must provide care for someone regardless of whether they have health insurance. However, if that person sought that care within 72 hours of the accident, the hospital would be entitled to a lien, giving them the first right to recover their medical bills from the case. Attorneys can send clients to receive quality health care under a letter of protection or letter of a guarantee, promising to pay the healthcare provider out of the proceeds of the case. That is especially true at my firm.

This is not true at all. In fact, we recommend that our clients never speak to insurance company adjusters about anything. Adjusters are trained to twist the facts to make it appear as if the claimant was at fault or that there was less fault. We suggest that no accident victim ever speak to an insurance company without first being advised of their rights by an attorney.

That is absolutely false. An insurance company only has the best interests of its insured and its bottom line in mind when they deal with you. They want to pay as little as possible to resolve a claim, even if that amount is nothing at all. And that is certainly not in the claimant’s best interests.

This is another misconception. No one is ever obligated to provide a recorded statement when they decide to pursue a liability claim against the negligent party’s insurance company. Recorded statements can often be twisted to make them appear as if the claimant was at fault or was not injured.

The exception is if it the person were making a first-party claim against their own insurance company. In that case, they would have to cooperate with their insurance company under the terms of their policy.

This is not true. In Texas, settlements are generally one-time settlements that release the insured in exchange for a full and final payment of damages, including medical bills. The one exception would be if the person had first party medical coverage, such as personal injury protection on their auto liability policy, which would pay for medical bills as they were incurred, up to the maximum coverage level.

This one is only a partial misconception, although it is possible that bystanders who might be related to the victim and actually witnessed the accident, such as spouses and children of decedents, might also be able to recover damages. There are complex rules regarding recovery of damages for non-victims, so if the person had any questions they should contact an attorney immediately, so that they could be advised of their rights.

The basis for recovery is negligence, not who was injured the worst.

This is a terrible misconception that costs some people. There are no guarantees in the legal business, although there are legal standards that attorneys have to try to meet by applying the law to the evidence and facts, and they have to determine what the client’s rights of recovery would be.

Personal injury is an area of the law that is far more complex than most people realize. The victim should have an attorney to protect their rights, so a board certified personal injury attorney would be able to maximize the recovery of damages by making sure the victim had quality medical care and by applying the law to the facts and evidence in the case.

In Texas, the victim generally has two years from the date of injury to file a lawsuit against the negligent party, although they have three years to file a personal injury protection claim against the person’s own auto liability or auto insurance coverage, and four years to file a claim in a breach of contract case, although those rules are very complex.

There are very few exceptions to these rules, so the best idea is to contact an attorney, who can then best determine the proper deadline for filing the lawsuit.

This is absolutely false, because the victim would often not know the proper identities of the parties. If they wait until the last minute to file, and they sue the wrong party or fail to sue all possibly negligent parties, they lose their right to fully pursue their claim.

This is a huge misconception, since about 95% of cases end up being settled in court. Some cases are settled prior to litigation, while many cases are settled after the suit is filed but before trial. Only a small percentage, around 5%, of cases are actually tried and resolved after a jury’s verdict.

That is generally untrue unless a specific provision has been written into the settlement agreement allowing for recovery of later medical bills. Generally, there is a one-time full and final settlement agreement that includes future medical bills.

The attorney will hire an expert to develop a value for future medical bills, or the insurance company generally won’t consider those amounts.

This is a misconception, because the warning signs have to be placed in the potentially dangerous area, so as to properly warn the person. That means the sign would have to be in the area of the fall.

Quite often, we see situations in which a warning sign was not properly placed next to the unreasonably dangerous condition, and in those cases, the business owner would still liable under the premises liability theory.

For more information on Misconceptions About Personal Injury, please call (713) 425-4300 today to schedule a free initial consultation, and get the information and legal answers you’re seeking.

Stephen Boutros has dedicated over 27 years to advocating for the rights of victims. He focuses on aggressively seeking justice and ensuring that victims of personal injury receive the fullest possible compensation for their injuries and suffering.

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