Who’s liable for a catastrophic injury, and what should you do next?
A catastrophic injury is the most severe injury you can experience, short of a fatality.
- Amputation (or loss of use of a limb)
- Blindness or deafness from an injury
- Chronic lung damage
- Severe burn injury
In effect, it’s an injury that results in long-term disability or debilitation, or that permanently prevents you from performing any gainful work.
If you or a family member has suffered a catastrophic injury, it’s probably already begun to cost a lot of money, and you might be wondering how you’re going to pay the medical bills and live without that person’s income (and perhaps a spouse or partner’s income if they need to become a full-time caregiver).
What can you do now?
Don’t despair. You have options for recovering damages following a catastrophic injury that’s the result of someone’s negligence.
Depending on the type of accident, there could be insurance coverage for a portion of your losses. If it was a car accident or a premises liability accident, for instance, you can probably recover from the driver or property owner’s insurance policy. But a catastrophic injury likely has hefty expenses, and it’s possible that the insurance won’t cover the entire amount.
If insurance doesn’t cover the extent of your financial losses, you can file a California personal injury lawsuit.
Who’s at fault for my catastrophic injury?
The first thing your lawyer will examine in a personal injury claim is whether your injury was caused by someone’s negligence.
Negligence is when a person (or other legal entity like a company or government agency) breaches a duty of care through an act or omission, and that breach causes an injury that results in financial loss.
Sometimes, fault is clear and you know exactly who’s liable for your injuries.
For instance, if you were a pedestrian walking in a designated area when you were hit by a driver who was speeding and driving under the influence of alcohol, it would likely be that driver who’s responsible for your injuries.
In other situations, you might need a California personal injury attorney to help determine who’s responsible — and sometimes there are multiple liable parties.
Let’s take a look at some examples:
|Type of injury||Potential liability|
|Defective product injury||Manufacturer, distributor, or seller of defective item|
|Workplace injury||Injured person’s employer|
|Dog bite||Dog’s owner|
|Medical malpractice||Physician, hospital, pharmacy, or other medical professionals|
|Injury caused by a minor||Child’s parents|
|Slip and fall or other premises liability injury||Owner or manager of the property|
In many of these examples, there’s the primary defendant, and then you might have co-defendants that could include insurance companies, other legal entities or government agencies, parent companies (like a developer that owns a building run by a management company) or something else.
California comparative fault law
California follows a system of comparative fault, specifically pure comparative negligence. In pure comparative negligence states like California, your damage award is reduced according to your percentage at fault for the injury.
For instance, if your catastrophic injury was the result of being hit by a car, the court would examine whether you were walking according to the correct road rules at the time you were hit. In California, pedestrians are required to use a designated crossing area when stepping into the street. Although the driver may have been speeding, distracted, or made some other mistake, your damage award could be reduced if you were attempting to cross outside a designated crosswalk.
If the court determines that your damages are $600,000, but you’re found to be 20% at fault, then your damage award will be reduced by 20% to $480,000.
How much can I recover in damages for a catastrophic injury in California?
The California legal system provides for compensatory and punitive damages.
Compensatory damages in a catastrophic injury case
Compensatory damages are money you receive to repay you for financial losses or costs directly related to the injury.
Within compensatory, damages are either economic or non-economic. Economic damages are items with specific financial value, such as either costs or losses you’ve already paid and those anticipated to happen in the future.
Economic damages can include:
- Medical treatment, including hospital stays, doctor visits, assistive devices, ongoing therapies, prescription medications, surgeries, etc.
- Past lost wages and future income or lost earning capacity. Your lost earning capacity is the difference between what you would’ve earned for the remainder of your lifetime and what you can actually earn because of your injury. A catastrophic injury is defined, in part, as an inability to continue working.
- Property loss. If your injury was from an accident where you also lost property like your car, home, or something else, you can claim damages to cover replacement costs.
Non-economic damages are harder to calculate because you can’t add up receipts or bills to find a specific dollar figure. But they’re still compensable and are part of a personal injury claim.
- Emotional distress (also called pain and suffering). Compensation for your feelings of fear or anxiety, sleep disturbances, post-traumatic stress disorder, or other psychological conditions that arise from a trauma or serious injury can be included as part of your damage award.
- Loss of enjoyment. Happiness matters. If you were an avid runner, or played the saxophone, or got enjoyment from walking your dog or playing with your children, it’s going to be life-changing to be unable to participate in those activities.
- Loss of consortium. People tend to think that loss of consortium relates only to sexual relations, but that’s not the whole story. If a loved one is unable to provide love, affection, companionship, comfort, or the ability to participate in household activities, a family member could file a claim for loss of consortium as part of the original personal injury lawsuit. This applies not just to domestic partnerships, but also to parents and children who’ve lost these elements to their relationships.
Punitive damages in a California catastrophic injury lawsuit
Punitive damages (also called exemplary damages) are added to a personal injury claim as a way to punish a defendant for behavior that’s particularly egregious or careless.
California punitive damages are based on malice, oppression, and fraud.
Some states have damage caps, or a certain amount that can be recovered for certain personal injury claims. In California, there’s no maximum amount that can be recovered for compensatory damages. The exception is in a medical malpractice claim, which caps non-economic damages at $250,000.
When a catastrophic injury happens at work
Most employers are required to carry workers’ compensation insurance.
Work-related injuries can result from:
- A specific trauma or event.
- Repeated exposure to a hazard or repetitive motion injury.
You might also suffer a catastrophic injury such as permanent lung damage from exposure to asbestos, or permanent hearing loss from conditions at work.
Regardless of the nature of your work-related injury, workers’ compensation exists to benefit both you and your employer.
Workers’ compensation is beneficial to you because you can recover damages for your injury immediately without a lengthy court battle, and because workers’ compensation coverage is automatic when an accident happens at work, regardless of whose fault it was.
The system also benefits the employer because once you agree to a workers’ compensation settlement, you’re then prohibited from making a legal claim against the employer for any damages related to the injury.
Workers’ compensation insurance doesn’t cover pain and suffering or punitive damages. It covers only medical costs, disability benefits, and death benefits.
Navigating the workers’ compensation process can be tricky, and a lawyer can help make sure you receive what you deserve in a high-cost injury case.
It’s also possible that a third-party (not your employer) could be responsible for some (or all) of your workplace accident. If your accident was a fall from scaffolding because of defective safety equipment, for example, it’s possible that the liable party is the manufacturer of that equipment. If that’s the case, then you might want to consider filing a personal injury lawsuit against that manufacturer.
Statute of limitations for a California civil lawsuit
The statute of limitations for a California catastrophic injury lawsuit is usually 2 years. That means you have 2 years from the date of the injury or the date when you discovered the injury in which to file a lawsuit.
The exception is that California allows just 1 year to file a lawsuit for a malpractice claim.
There are other exceptions, like if the injury happens to a minor. In that situation, the statute of limitations would toll (or pause) until the person turns 18.
Also, a claim against a government agency or employee must be filed within 6 months of the injury.
Find a California catastrophic injury lawyer
A catastrophic injury could have higher stakes than a “regular” personal injury because of its severity and the life changes that you’ll need to make. Your life will never be the same as it was before the injury, but you should be able to be compensated so that you can live at the same financial level as you were before — even if you’re no longer able to work and need to make some expensive lifestyle changes.
You might need to hire an around-the-clock caregiver for yourself or your family, make physical changes to your home for accommodations like wheelchair ramps, wider doors, or other adaptations, and consider the expense of future surgeries or serious medical conditions that could develop as a result of the injury.
A lawyer can calculate your future expenses with the help of actuaries and other finance experts who really understand what your future costs will be.
Enjuris offers these resources for finding the California personal injury lawyer who’s right for your case:
- Tips for hiring a personal injury lawyer
- What you should look for in an attorney
- What to bring when meeting an accident lawyer for the first time (download in PDF)
You’re welcome to use the free Enjuris Personal Injury Law Firm Directory to find the best lawyer who’ll help you get on the road to financial recovery.