You're weaving through 490 traffic because you're late for work when an SUV swerves right into your blind spot as you try to merge. The rest of your day is a blur of crunched metal, ambulance rides, and more pain that you thought possible. Your family tells you how lucky you are to be alive with tears in their eyes, but the casts covering your legs make you feel anything but lucky. But where do you go from here? You can't even get out of bed, never mind return to work. How will you pay the hospital bills? Who was at fault for the accident? And when will this splitting headache finally go away?
The scenario above is just one of many ways in which you or another may be injured, but similar questions may be asked no matter how an accident happened. Everyone needs straight answers, which is why FindLaw has created this guide to prepare you for your Rochester personal injury case.
You have three years from the date of most injuries to file a lawsuit. This statute of limitations prevents plaintiffs from dragging defendants into court for ancient injuries barely remembered. This period may vary depending on the specific cause of action. You have two years and six months for medical malpractice cases (with some important exceptions), two years for wrongful death cases, and only one year for intentional torts like battery. These statutes just underscore the need to avoid delay and pursue your personal injury case promptly.
How to File a Lawsuit
The first step to filing a lawsuit is to draft a complaint, which is a brief description of the injury-causing incident and a request for compensation. If you opt to do it yourself, you can try copying this example provided by the New York judiciary if you get stumped. Then you file your complaint at the local courthouse, most likely the Monroe County Hall of Justice at 99 Exchange Blvd.
The next step is sending a copy of the complaint along with a summons to all defendants. You should use certified return-receipt mail so you can prove the defendant actually received the envelope should they fail to appear in court.
Types of Lawsuits
Before you draft the complaint, you must figure out which claims you can pursue. The most common claim after an injury is for negligence. Negligence governs accidentally inflicted injuries, so it covers a vast range of possibilities. You must prove that: the defendant owed you some duty of care (for example, as with all licensed drivers, to drive with reasonable care while respecting the rules of the road); that they breached (failed to meet) that duty; and this caused your injuries.
If you suffered injuries at the hands of a health care provider, you could file a medical malpractice lawsuit. This is like a negligence lawsuit, but the level of care expected from a doctor is quite high. You may very well need the help of a medical expert to prove the standard of care and demonstrate why the doctor failed to meet that standard.
If the defendant purposefully caused your injury, the proper lawsuit may be an intentional tort called battery.
Alternatively, you could sue the manufacturer of the injury-causing product in a products liability lawsuit. This type of suit alleges that the product has a design or manufacturing defect that caused the product to malfunction in an unexpected way. Products liability governs a surprising range of products, including medicine, cars, baby's toys, food and toxic materials.
When a family member dies as the result of injuries suffered from any of the above claims, his claim lives on in the form of a wrongful death lawsuit. Wrongful death lawsuits seek compensation for unfair costs borne by the family of the deceased, such as lost wages, lost companionship, medical bills, and funeral expenses.
Virtually all employees in New York are covered by workers' compensation insurance. This provides benefits for employees who suffer work-related injuries. Instead of filing a lawsuit to recover damages, you claim the benefits provided by the insurance policy.
If you are injured at work, you should advise your doctor that it is a work-related injury so he or she knows to file the appropriate reports with the New York State Workers' Compensation Board. Also, notify your employer as quickly as possible, but definitely within 30 days or else you risk losing all benefits. Finally, you must complete Form C-3 (PDF) and mail it to the nearest district office within two years of your injury, but the sooner the better.
Read more about Workers' Compensation procedure in this thorough employee's guide (PDF) provided by the Board.
Your recovery is broken into economic and non-economic damages. Economic damages represent the monetary costs that resulted from the injury. They can include medical expenses, lost future income, loss of property, costs to repair or replace property, or loss of employment opportunities.
Non-economic damages are sometimes called "pain and suffering" damages because they are designed to compensate you for the mental and physical distress you suffered from the injury. Significantly, New York is one of the few states with no upper limit on the amount of non-economic damages you could be awarded, even in medical malpractice cases.
In negligence lawsuits, the defendant will often claim that you were in fact the negligence party. In olden times any contributory negligence by the plaintiff barred any recovery, but this harsh rule has been softened in many places by another known as comparative negligence. New York is one of the rare states with a pure comparative negligence law, which provides that fault is assigned each plaintiff and defendant, and the plaintiff's total recovery is reduced by the percent he is found to be at fault. For example, if you racked up $1,000 in medical bills as a result of an injury which was found to be 10% your fault, you will be able to recover 90%, or $900, from the other party. The "pure" aspect of this statute means that even if the plaintiff was 99% at fault, they will still recover 1% of their damages.
Read more about personal injury law, or if you have specific questions about your case or the law involved, you may want to contact a local attorney specializing in personal injury law.
Contact a qualified attorney.