Morgantown Injury Attorneys: Legal Questions
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1. HOW LONG DO I HAVE TO BRING A LAWSUIT FOR A PERSONAL INJURY?
As the term “personal injury” is used here we mean physical and emotional injury arising from a motor vehicle accident, a slip and fall, medical malpractice and from a dangerous product. Generally, the statute of limitations for a personal injury is two (2) years. The most notable exceptions to this arise where an infant or mental incompetent is involved. It may arise also in a situation where the victim does not reasonably discover that he has been harmed by another. Again, these are just general exceptions to the rule. The safest course of action is to consult with an attorney well within two (2) years of the date of injury so that you can receive proper advice, and give your attorney proper time to investigate and prepare the case prior to the expiration of two (2) years. PLEASE NOTE: Other types of incidents may have statutes of limitation which are longer, or shorter.
2. DO I REALLY NEED AN ATTORNEY? WON’T THAT BE TOO EXPENSIVE, OR SLOW THINGS DOWN?
Many of our clients have hired us after months of fruitless negotiations with an insurance company who had assured them that they would receive a fair settlement and that they should not retain a lawyer. It is true that many smaller claims, particularly those which involve only minor personal property loss, can be settled without the intervention of an attorney. Nevertheless, an individual who has experienced a personal injury where there are doctor bills, ongoing treatment, lost wages, significant pain and suffering, and the potential for future impairment and lost wages, should consult with an attorney who is experienced in litigation matters.
3. HOW CAN I AFFORD A LAWYER TO REPRESENT ME?
Most trial attorneys are willing to handle personal injury cases on a contingent fee basis. The hallmark of the contingent fee is that the attorney will not charge you for his time unless there is a recovery. If there is a recovery, then the attorney’s fee is based on a pre-agreed percentage of the gross amount recovered. Typically, HAMSTEAD, WILLIAMS & SHOOK PLLC charges a 33-1/3% – 40% contingent fee, depending on the complexity of the case. Many law firms are known to charge up to 50% contingent fees. The contingent fee to the attorney does not include costs of litigation which may be incurred. These may range from a few hundred dollars if the case can be settled out of court without suit being filed, to tens of thousands of dollars in complex actions such as medical malpractice and product liability. Incurred costs are payable separately, and not as part of the contingent fee.
4. WILL MY CASE WIND UP IN COURT?
Most legal claims are resolved by settlement, before suit is even filed. Of those cases where suit has to be filed, the overwhelming majority of those are eventually settled without having to go to trial before a Judge and jury. HAMSTEAD, WILLIAMS & SHOOK PLLC’s philosophy is to vigorously pursue settlement well in advance of trial so that the claims process is not made unduly difficult and burdensome for our clients. Our firm places great stock in mediation as a means to settle a case once suit has been filed, thereby possibly eliminating the need for appearing at trial. One of the ultimate considerations in resolving a case is fairness. If a client is satisfied with a fair settlement, then we consider that we have been successful and that our job is done. However, if the insurance company for the other side, for whatever reason, is unwilling to offer a fair sum in settlement, then we will explain the entire situation including risks and benefits so that the client, with the help of his/her attorney, can make an informed decision: a decision which is right for him or her.
5. CAN I SUE MY DOCTOR BECAUSE I AM NOT PLEASED WITH MY TREATMENT?
A doctor is not responsible simply because a patient experiences a bad result. The law recognizes that a doctor is not responsible simply because an untoward event occurred or an optimal recovery was not attained. West Virginia law specifically provides that a medical provider is only responsible for injuries which directly result from that medical provider’s deviation from the appropriate standard of care. Basically, this means that a doctor, hospital, nurse, dentist or other type of health provider is only responsible if they did something, or failed to do something, which would generally be perceived as wrong within their specific area of practice. HAMSTEAD, WILLIAMS & SHOOK PLLC has access to knowledgeable doctors, nurse, dentists, hospital administrators and other healthcare experts who can explain whether a medical provider was at fault or not.
6. WHAT HAPPENS IF I GET HURT BY A HIT AND RUN DRIVER?
All insurance policies issued in West Virginia carry mandatory coverage for personal injury and property loss caused by an uninsured motorist. This includes a hit and run driver. In order to collect on a claim involving a hit and run driver it is necessary that the police or other appropriate authority investigate promptly and that your insurance carrier be notified within sixty (60) days. The minimum uninsured limits which accompany every policy are inadequate for serious injuries. Uninsured motorist coverage is relatively inexpensive and most people would be wise to contact their insurance agent to learn what amount of coverage is right for them.
7. WHAT CAN A WORKER DO IF HE OR SHE IS WRONGLY TERMINATED?
Generally, the law in West Virginia is that employment is “at will”. This means that in the absence of a written contract, an employee’s work is at the will and pleasure of the employer and the employee can be fired for any reason which does not violate a substantial public policy goal or a specific statute. Examples of state statutes which provide safeguards and remedies to wrongfully terminated employees are the West Virginia Human Rights Act, West Virginia Worker’s Compensation Statute, and the Whistle-blower Act (for public employees). This list is by no means inclusive. Rights and remedies are often very case specific so that prompt consultation with an attorney can ensure that your rights are protected if you have been dealt with wrongfully at work.
8. WHAT DOES THE LAW PROVIDE FOR INJURIES OCCURRING ON REAL ESTATE?
Visitors to a business or commercial establishment are owed the duty to have the premises made reasonably safe for the visit. If that duty is breached, and an injury results, then the injured person may be able to recover damages from either the property owner or the business occupant. Tenants who are injured because of unsafe conditions or toxic substances on the premises such as lead paint can also pursue a claim for their injury.
9. WHAT HAPPENS IF THE DRUNK DRIVER WHO CAUSES INJURY DOES NOT HAVE ENOUGH INSURANCE?
This is precisely the type of situation where either uninsured or underinsured motorist coverage can be helpful. In addition, the law deals with the issue of drunk driving so strictly that, in addition to the impaired driver, liability might also attach to a business which sells alcohol to an underage or intoxicated person, and even passengers who have contributed to their driver being impaired.
10. CAN I SUE MY EMPLOYER IF I GET HURT ON THE JOB?
Generally, employers who subscribe to Workers Compensation, and their employees, are immune from suit and the only remedy is through Workers Compensation. There is an important exception, however, and that occurs where the employer deliberately injures a worker. Deliberate intent can be established by proving that there was a dangerous condition at work that the employer knew about which violated a safety standard, regulation or practice, yet the worker was nevertheless deliberately exposed to the hazard and suffered injury. The employer is entitled to a credit for all sums that the worker will receive from Workers Compensation. Still, pursuing this type of claim will generally result in more fair compensation than what Workers Compensation alone can provide.