A personal injury accident may leave you with more than physical injuries. Accident victims often suffer what is called emotional distress, or psychological harm, as a result of the traumatic experience. Texas courts recognize emotional distress as a type of non-economic or general damages that can be recovered as compensation, if negligence can be proven in a personal injury claim. Proving Emotional Distress Unlike a physical injury, which can be substantiated with medical bills and evidence of lost wages, emotional distress can be much harder to prove. The reason being that there is rarely evidence in the form of financial losses to accompany this type of damages. As a result, the injured person should seek treatment for an accident-related psychological or emotional condition, just as they would for physical harm. This can include treatment from a doctor, psychologist, mental health specialist, counselor, and more. Medical records of the treatment received are vitally important to proving emotional distress, including: Records from visits to a physician or counselor Insurance claims or receipts of payments made to attending physician or counselor Notes from the attending physician or counselor Testimony from the attending physician or counselor List or receipts of prescribed medications Journal of victim’s day-to-day emotional and physical symptoms, and experiences Testimony from family members and friends, confirming the victim’s mental state and impact on their life All of which can be used as evidence in negotiations with the at-fault party, or at trial. Types of Emotional Distress There are two different types of emotional distress damages recognized by the state of Texas: intentional infliction and negligent infliction. Intentional Infliction: the defendant’s harmful behavior was intentionally done to cause emotional distress (e.g. physical or sexual abuse, death threats) Negligent Infliction: emotional distress due to an accident caused by the defendant’s negligent acts. One of the largest hurdles is attempting to prove that a defendant’s actions only resulted in mental harm. In most cases, emotional distress must have some form of physical harm associated with it, to be successful on a personal injury claim. However, Texas is one of the few states that allow emotional distress claims to be pursued without the presence of a physical injury. Some examples of situations that may warrant a claim for emotional distress damages, are witnessing a traumatic event, invasion of privacy, defamation, or the parents of an abducted child. Symptoms of Emotional Distress There are certain symptoms a doctor or counselor may use to diagnose emotional distress, including: Depression Humiliation Anxiety Fear Loss of enjoyment of life Embarrassment Sleeping problems or insomnia Chronic fatigue or lack of energy Anger or bitterness Compulsive or obsessive behaviors Post-Traumatic Stress Disorder (PTSD) Loss of sexual function, etc. Physical signs, such as nausea, vomiting, stomach cramps, weight fluctuations, and more. It is important to have evidence that demonstrates the intensity and duration of the emotional distress. This is what will prove the harm is severe enough to deserve financial compensation. Contact Us for a Free Consultation Proving emotional distress can be difficult, but with a uniquely crafted legal strategy we can make sure you are rightfully compensated. Contact the Houston personal injury lawyers at Milano Legal Group by dialing (713) 489-4270 today.
A deposition is a witness’s sworn testimony outside of court, and a legal tool used to discover and establish facts relevant to a personal injury case. Essentially it is an opportunity for the attorneys from both sides to learn what the plaintiff (victim) and defendant (at-fault party) know about the case, the extent of the injuries, the damages being claimed, and to have questions about their backgrounds answered. By getting the complete story at depositions from both, you and the at-fault party, the attorneys involved will be able to develop a strategy for the remainder of the case. What Types of Questions are Asked at a Deposition? A deposition can be the key to many personal injury cases, so it is vital to be prepared. The information obtained may not only impact how much compensation a victim receives, but can also decide the case’s outcome. You can expect to answer questions regarding the following: What happened to you? Was anyone with you when the injury occurred? Were there witnesses? Did you file an insurance claim? Did you call the police? Did you see a doctor? Did you receive treatment? How have you been feeling since your original treatment? Has the injury affected your life in any specific way? What injuries have you had in your life? What illnesses have you had? Have you ever been involved in litigation before? Do you have a criminal record? What do you do for work? Questions must be answered honestly, as you will be under oath during a deposition. If you lie, there is a risk of being charged with the crime of perjury. Lying can also destroy your credibility as a witness. When you are asked a question, it’s best to give a simple and precise answer, without providing any additional information. Do I Have to Attend a Deposition? Depositions can be stressful, but they are an important part of the legal process. If you have been subpoenaed to a deposition, there aren’t too many options for avoiding it. If you just don’t show up, you potentially subject yourself to contempt of court or other sanctions. On top of that, you would still be forced into deposition. Who is Present at a Deposition? At a deposition, you can expect to see the attorneys representing the involved parties, a court reporter, and the witness. If you are being deposed as the plaintiff in a case, the assigned insurance adjuster will sometimes attend as well. The deposition may be done at your attorney’s office, opposing counsel’s office, or another agreed upon location. When is a Deposition Taken? If the parties to a personal injury claim cannot reach a fair settlement, the plaintiff (victim) has the option of filing a personal injury lawsuit against the defendant (at-fault party). A summons must be served to the defendant, and they have a chance to file an answer. Once that occurs, signaling they intend to defend the case, the discovery phase of litigation begins. Discovery gives each party the chance to obtain documents from each other, send written questions (interrogatories), get documents from third parties, hire experts to testify, and depose witnesses under oath. Reasonable notice must be given to all parties when either side wants to schedule a deposition. We Can Help As experienced litigators, the Houston personal injury attorneys at Milano Legal Group are well-versed in the dos and don’ts of depositions. If you are subpoenaed to give testimony for a personal injury case, call (713) 489-4270 and schedule a free consultation.
If you are injured in a personal injury accident in Texas, you may be surprised to hear that there could be a cap on the amount of compensation you can recover. A damage cap limits the total amount of damages that plaintiffs (victims) can be awarded in some personal injury cases. These caps are set by legislators, usually on a state-by-state basis, to avoid excessive verdicts that aren’t based on reason. Texas does have caps in place for certain types of damages or cases. Caps on Economic and Non-Economic Damages Fortunately, the state of Texas does not impose a cap on economic and non-economic damages in most personal injury claims. That means there is no limit on medical costs, lost wages, diminished earning capacity, damage to property, pain and suffering, emotional distress, etc. For example, if you suffer a serious injury resulting in $500,000 in medical expenses, you will recover compensation for those losses. Non-economic damages that compensate victims for their physical and emotional suffering, can be difficult to put a price tag on. Many insurance companies and personal injury attorneys use a somewhat standardized method of calculating non-economic damages, known as the multiplier method. It takes the known economic damages and multiplies it by a number, typically between 1.5 and five. The multiplier will vary depending on the details of the case and severity of the injuries. If a claim makes it to court, the value of these damages will be subjectively evaluated and decided by a judge or jury. Caps on Medical Malpractice Claims The rules do change for Texas medical malpractice claims. Here are the damage caps imposed by the state: A healthcare facility cannot be sued for more than $500,000 total An individual doctor cannot be sued for more than $250,000 total Non-economic damages cannot exceed $750,000 in a medical malpractice claim Caps on Punitive Damages Plaintiffs are allowed by the state to recover punitive damages in cases involving gross negligence, malice, or fraud. Punitive damages are awarded with the intention to punish the defendant and warn against similar behavior by them and others in the future. Texas caps these damages at the large of: $200,000, or Twice the amount of economic damages, but no greater than $750,000. The cap does not apply if the personal injury was a result of a felony. Caps on Government Claims Lastly, damages cannot exceed $100,000 in personal injury claims filed against the government. For example, if you are hit by a city bus, fall down some faulty stairs in a government building, or slip at the DMV, the amount of compensation you recover is limited by the state. Discuss Your Case With an Experienced Houston Personal Injury Lawyer If you have been injured by someone else’s negligent or reckless actions, contact the Milano Legal Group. Our highly skilled Houston Personal Injury Lawyer will ensure you recover the maximum amount of compensation available under the law. Call (713) 489-4270 and schedule your free initial consultation today.
Personal injury victims are often shocked when they discover that something called a “medical lien,” must be paid to health care providers before they can receive their settlement. A medical lien is a legal claim against your personal injury settlement that is filed by a doctor, hospital, your health insurance company, or some other entity that provided you with medical care or services in response to your injuries from the accident. Essentially, it is a demand for reimbursement. How is a Medical Lien Used? Some states allow medical liens to be filed in the following situations: Medical Provider or Hospital Lien: if you do not have health insurance and are unable to pay up front for the medical treatment rendered, a hospital, doctor or other provider may agree to defer payments until you settle your case. They may even ask or require you to sign off on a lien, stating that repayment for their services will come from their personal injury settlement or award. Healthcare Lien: if you use your own health insurance to cover medical bills after an accident, rather than waiting for the at fault party to pay. Your health insurer may then attempt to recover those costs by filing a medical lien. Government Lien: when a government agency, such as Medicare or Medicaid, is used to cover the costs of your medical care related to an accident, they also have the right to file a medical lien for reimbursement. Workers’ Compensation Lien: if you are injured while at work, and your workers’ compensation benefits are paying for your medical bills, but a third party is at fault. If you successfully sue the third party, the workers’ comp insurance company has the right to collect their money back. There are specific requirements and state laws that must be followed in order for a medical lien to be valid, which means in some instances a medical lien may not be enforceable in a court of law. How Can an Attorney Help with Medical Liens? It is entirely possible for a lienholder to accept less than the amount of money they are seeking reimbursement for. In most cases, a skilled attorney can help you get a medical lien reduced, waived, or voided altogether. If a medical lien turns out to be enforceable, an attorney can help you negotiate in an attempt to lower the amount of money you owe. Negotiating before your case settles will likely increase your net recovery and can save you money in the long run. Certain lienholders have more of an incentive to accept a lower pay out prior to your case’s resolution. Given that there is a chance your personal injury claim may be unsuccessful. However, medical liens can be extremely technical, which is why an experienced personal injury lawyer is recommended for their advice and to help guide you through the negotiation process. Consult with a Knowledgeable Houston Personal Injury Lawyer When it comes to personal injury cases, the attorneys at Milano Legal Group have extensive experience in medical lien litigation and negotiation. Discuss your situation with us today in a free consultation, by calling (713) 489-4270 or filling out our contact form online.
Lost wages are commonly recovered in personal injury claims. Whether you have been injured in a car accident, while at work, etc., any length of time you cannot earn an income as a result, can be argued as lost wages. When it comes to proving lost income, you must be able to demonstrate the amount of time you missed from work due to your injuries, as well as how much money you would have made had you not missed work. Four Ways to Prove Lost Wages There are four options for demonstrating lost wages: W-2(s) from the previous tax year(s); Pay stubs from before and after the injury accident (proves the change in income); Wage verification from your employer: the insurance company can provide you with a “salary/wage verification form,” or you may ask your employer to write down your: Title and date hired; Statement confirming you were employed at the time of the accident; Normal wages or salary; The number of hours you typically work per week; Standard rate of pay for overtime; The dates you were/are unable to work; and, Bonus structure and any lost perks. Other income documentation if you are self-employed or a business owner: that can include tax returns, banking records for your business, checks received for your services, or accounts receivables. To protect your privacy, be sure to black line any account numbers. When submitting a lost wages claim, a doctor’s note confirming your injuries must also be included. The note must contain details of your disability and their recommendation as to how much time you should take off of work. What’s Covered Under Lost Wages? The types of compensation that are covered under lost wages are: Hourly Wages An estimate of your total lost wages can be calculated by adding up your missed hours from work and multiplying it by your standard rate of pay. For example, if you miss 10 days of work, and you generally work eight-hour shifts and earn $20 an hour, your lost hourly wages are 10 x 8 x $20 = $1,600. Tips If you held a job that came with tips, and you normally reported them, they can be included as lost income. However, you will need evidence of tips on your taxes or bank account deposits. Overtime Lost overtime can be included in your claim if you are regularly paid overtime. Past pay stubs are the best form of proof. Bonuses Proving you have or will lose bonus pay will require documentation of past bonuses, or a report from your employer detailing how bonuses are earned and any other compensation you will miss out on. Sick Days & Vacation Days Even if you use sick days or vacation time in order to receive payment while you recover, you have the right to recover compensation for those days. If it weren’t for your injury, you would not have been forced to use those benefits. Perks Missing or being unable to work may also mean you lost the perks that went along with your job. For example, you could claim the value of losing the use of a gym membership or company car. Speak to a Houston Lost Wages Lawyer Proving lost wages and the process for doing so can be complicated. An experienced Houston personal injury attorney at Milano Legal Group can help you by evaluating your lost wages claim and determining the amount of compensation you are owed. Call (713) 489-4270 or contact us online for a free consultation today.
When you have been involved in a car accident, certain evidence will be particularly important for your personal injury or property damage claim. This evidence varies in form, and will help protect your right to compensation. Here are the types that can strengthen your case: Photo and Video Evidence If you can, take pictures and/or video of the following from varying distances and different directions: The damage to all cars involved (external and internal) Final position of the vehicles after the collision Road conditions Weather conditions Skid marks Road signs and/or traffic lights Your injuries These photos/videos can corroborate and support your version of how the accident occurred. They may contain clues about the direction from which your vehicle was struck, the speed of oncoming vehicle(s), and possibly the distance to a traffic sign or signal. Any debris, such as shredded tires or brake lines could indicate a manufacturer defect or other contributing factors. The top priority after an accident, however, is seeking medical care. If you are seriously injured you may need to ask someone else or hire an attorney to document the scene for you. Police Reports Calling the police to the scene is vital to proving who is at fault. Texas law also requires you to report an accident to the police when someone is injured or if there is more than $1,000 in damage to one or more of the vehicles involved. A police report will provide an official record of the accident and will contain details of their investigation. The officer will speak to each party, take notes, possibly draw a diagram of the scene, and will give their opinion as to what, where, and when they believe the collision occurred. Depending on the circumstances of the accident, they may also arrest a driver or ticket them for a moving violation. Witness Statements Witnesses can give honest accounts of exactly what they saw, demonstrating your lack of fault to an insurance company or a court. Write down the details of and contact information for as many witnesses as you can find. This information will also likely be found in the police report. Medical Records Ongoing medical evidence pertaining to your injury will establish how the accident has impacted your life. The most important proof is regular consultations with medical professionals and completing the ongoing treatment they advise. Doctors will keep detailed records on your visits, condition, and advised treatment plan. These records are key pieces of evidence for an insurer or at trial. If you do not seek medical care or stop treatment, you may not receive the compensation you need and deserve for your injury. Speak to an Experienced Houston Car Accident Attorney If you were recently injured in a car accident, contact Milano Legal Group for a free consultation. We will help you collect the evidence you need to prove that the accident was not your fault, that you were injured, and how your life has and will be impacted as a result.
There are various legal defenses that a defendant may use in an attempt to avoid liability in a Houston personal injury case, including the assumption of risk. Assumption of risk means the injured party voluntarily and knowingly engaged in an activity that carries with it a high risk of injury. Understanding this type of affirmative defense is vital, as it can be devastating to the outcome of your claim. An experienced Houston personal injury lawyer can assess your case and determine if the assumption of risk defense could potentially have an impact on your compensation. How Assumption of Risk Can Affect Your Personal Injury Claim When assumption of risk is introduced as a defense, the defendant is claiming that the plaintiff (victim) cannot obtain damages since they should have known about the danger of injury. It asserts that the plaintiff either gave implied consent or expressed consent: Implied Consent: had knowledge of the risks involved in taking part of that activity and/or service. An implied assumption of risk is typically used in cases involving premises liability or dangerous activities, such as skydiving, amusement park rides, sporting activities, trampoline parks, etc. Expressed Consent: Knowingly accepted the risks associated with the activity and/or service through an agreement or their actions. Expressed consent is often associated with a waiver of liability that is agreed to and signed prior to the risky activity (though in some cases verbal express consent is permitted). In these cases, it can be particularly difficult to recover compensation, since waivers of liability can excuse the defendant from being held responsible for any injuries. A successful assumption of the risk defense can impact your recovery by leading a judge or jury to find you partially or completely responsible for your injury. Each case is unique, and the defense’s effectiveness will hinge on the facts and evidence presented by both sides. Exceptions to the Rule There are exceptions to the assumption of risk defense, as the injury suffered must be “foreseeable.” The foreseeability test determines proximate cause— or a party’s liability—for an act of negligence that resulted in injury. Basically, it asks whether a person of ordinary intelligence should have reasonably foreseen the potential consequences of his or her conduct. For example, an assumption of risk defense might not work if a plaintiff was injured on a roller coaster caused by damaged safety equipment. That’s because the injured party didn’t know about the risk posed by the damaged equipment prior to getting on the ride. Additionally, the assumption of risk defense will not protect a defendant from liability for reckless or intentional behavior. For instance, if the defendant knew about the roller coaster’s damaged safety equipment and still allowed people to ride it. Modified Comparative Negligence Laws in Houston Under Texas’ modified comparative negligence laws, you can still recover damages when you are partially at fault, but only as long as it is less than 51 percent. The amount of compensation you are awarded will be reduced by the percentage of liability assigned to you. As an example, if a jury awards you $100,000 and you are found 20 percent at fault for your injury, then you will receive $80,000. If you are found more than 50 percent liable, you cannot recover damages. Get Help From a Houston Personal Injury Attorney Personal injury cases where an assumption of risk defense is used are often tough fights in court. A skilled injury lawyer in Houston can evaluate your case to see if the assumption of risk applies and help you explore your legal options. Schedule your free consultation with an attorney at the Milano Legal Group PLLC today for help obtaining the best recovery possible.
After an injury accident, there are essentially two types of damages that plaintiffs (victims) can pursue: compensatory and punitive. Depending on the circumstances of the case, you may have the right to recover these types of compensation, if negligence and causation are established. Understanding the difference between them is important to your personal injury claim, especially since not every case qualifies for punitive damages. Compensatory Damages The purpose of these damages is to make the injured party whole, by compensating them for both economic and non-economic losses. Economic losses can include: Property damage Past, current, and future medical bills and expenses Past, current, and future lost wages Legal fees On the other hand, non-economic losses are those that cannot be proven outright or calculated with a receipt. They are damages that you have suffered because of the other party’s negligence. Those can include: Loss of enjoyment of life Pain and suffering Emotional distress Loss of consortium or damage to a relationship with spouse or children Compensatory damages (both economic and non-economic) are the most commonly awarded type of compensation. To obtain a fair amount, it is imperative to calculate your losses accurately, so that no expenses are overlooked. The task of calculating future costs may require testimony from medical and accounting experts. Punitive Damages Punitive damages are not as common and are intended to punish the defendant. They are awarded when the court feels that the negligent party committed an egregious act or demonstrated a willful disregard for the health and safety of others. With the hope that the punishment will deter them and others from engaging in similar behavior in the future. Punitive damages are often awarded in car accident cases involving a drunk driver. Since driving while under the influence of alcohol is illegal, a driver might pay punitive damages as their penalty for consciously deciding to engage in harmful behavior, in addition to compensatory damages. The amount of punitive damages will not be based on your losses, but rather the amount that the court deems as adequate enough punishment. Caps on Damages Many states place caps, or limits, on the amount of damages a plaintiff can recover. Under Texas law, compensatory damages are not capped in most personal injury lawsuits, unless it is filed against a government entity or it is a medical malpractice lawsuit. That means many victims are entitled to pursue and may receive full compensation for their economic and non-economic losses. However, punitive damages are capped. They cannot exceed: Two times the amount of economic damages awarded plus the amount equal to their non-economic damages award (up to $750,000); or, $200,000 in cases where no economic damages are awarded. As an example, a victim is awarded $50,000 in economic damages and $25,000 in non-economic damages. If punitive damages are available, they would be capped at $125,000 (two times $50,000 plus the $25,000 in non-economic damages). Speak to a Houston Personal Injury Lawyer About Your Compensation The circumstances and losses specific to your case will determine its worth. Explore your legal options and discuss your claim’s value with an experienced Houston personal injury lawyer at the Milano Legal Group PLLC. Contact us online or call (713) 489-4270 to schedule a free consultation.