Personal Injury Law – Frequently Asked Questions

West Virginia personal injury law encompasses a broad area of law. As as West Virginia attorney, I frequently get asked questions about West Virginia personal injury law. Following are some of my answers. All cases are different and these answers are general in nature and should not be construed as legal advice. For a free evaluation of your case, contact a personal injury lawyer at West Law Offices. We are located in Charleston, West Virginia, and proudly serve all of West Virginia including Logan, Beckley, and Huntington.

How much will it cost to hire a personal injury attorney to handle my accident claim?

West Law Offices charges you nothing unless we win your personal injury claim. This means you don’t pay costs, expenses or a fee unless we recover money for you. This is called a contingency fee agreement and is common among personal injury lawyers. Be careful, however, some personal injury attorneys will charge you “case costs” even if they lose your case. If West Law Offices accepts your case, you will never pay a penny unless we win or settle your personal injury claim. Contact us for a free consultation – we would be happy to go over our attorney/client agreements.

What do you mean by “personal injury law”?

“Personal injury” is a broad term that means any kind of accident or event that leads to an injury, including both physical and psychological injuries. Here are some examples:

car and truck accidents
medical malpractice
work-related injuries
nursing home-related injuries
mesothelioma/asbestos cases
products liability (injury from a defective product),
injury from defective medicines (e.g., Vioxx)
wrongful death cases
slip and fall accidents

Do I Have a Personal Injury Case?

The first requirement of a personal injury case is that, generally, you must have suffered some loss as a result of someone else’s negligence or wrongdoing. Typically such losses include a physical injury and/or an injury to your property, or the ultimate loss, the wrongful death of a loved one. A physical injury is not always necessary, however, to bring a lawsuit. For example, damage to your property or a psychological injury may be the basis for a valid claim as welly.

What is Negligence?

Negligence is generally when someone didn’t act reasonably under the circumstances; that is, when somebody was careless. For example, negligence may include when someone failed to act reasonably to protect others from the risk of foreseeable harm arising from their actions and/or omissions, and such actions and/or omissions cause another person’s injuries.

Negligence or wrongdoing is not always necessary, however, to bring a claim. For example, if you are injured by a product, the manufacturer, seller, and/or distributor(s) may be strictly liable for your injuries regardless of whether they were negligent. Personal injury law is a complex field. Contact us for a free evaluation of your case.

What should I do if I’m involved in a car accident?

If you are involved in a car accident, truck accident, motorcycle accident, or any other type of auto accident, make sure that the police are called to the scene of the collision. Protect your legal rights by never admitting to wrongdoing or apologizing for your actions without first consulting an attorney. If you are able to do so, exchange drivers’ licenses, registrations, and insurance information with the other driver(s) without discussing the accident or your injuries.

Ask the law enforcement officer on the scene if you can fill out a motor-vehicle accident report form. Fill it out carefully, however, and only include information you are certain about. For example, you may feel sympathy if the other person is injured, but just because they’re hurt doesn’t mean it was your fault. Your and the other driver’s statement along with the law enforcement officer’s conclusions will become part of the police report and can be used for or against you.

You should also immediately seek medical care, as some injuries sustained in car and other auto accidents are not readily apparent. You should also be aware that you may not become aware of some injuries until days, weeks and even sometimes months later. Additionally, although many injuries get better over time, some get worse. An experienced personal injury attorney can help you seek the appropriate treatment and evaluation for your injuries.

Contact your insurance carrier and put them on notice of the claim. West Law Offices recommends that you contact a lawyer as soon as possible. Contact West Law Offices for a free evaluation. If we don’t think you need an attorney, we will tell you so.

What is uninsured and underinsured car insurance coverage?

Uninsured and underinsured motorist coverage is insurance coverage that you purchase under your own automobile policy. Uninsured coverage provides you protection if you are injured in a car accident and the other party who is at fault does not have automobile insurance. Underinsured motorist coverage protects you if you are injured in an automobile accident and the other party who is at fault does not have enough insurance coverage to compensate you for all of your damages, which may include pain and suffering, medical expenses, lost wages and reduced earning capacity.

If I make an uninsured or underinsured motorist claim under my own automobile policy, will my premiums increase?

Usually not. Since such claims usually arise through no fault of your own, a claim made pursuant to your uninsured and/or underinsured coverage will not increase your premiums. However, it’s advisable to confirm this information prior to filing a claim, especially if your damages are small. If you hire West Law Offices to represent you, we will verify this information for you.

My insurance agent says I can handle the case myself without a lawyer. Is this a good idea?

Since a case evaluation is free, it won’t hurt to ask us if we think we can help. Having worked as lawyers for years, we have a bias against insurance companies and what they might tell you. We are biased because of our and our client’s experiences in dealing with insurance companies. We know that no matter how nice insurance adjusters sound, they generally have one goal in mind above all others—to pay you as little as possible.

This is understandable because insurance companies do not work for you. However, it’s unfortunate in many case where an injured person without a lawyer ends up with less than is necessary to compensate them and their family for their losses.

Insurance adjusters rarely help you figure out your legal rights, and may not fully understand them. In fact, they’re usually not lawyers and are prohibited by law from telling you whether or not you need a lawyer. They often fail to give you a fair assessment of the value of your case.

If your injuries are more than a few minor bumps and scratches, there are many reasons why a good personal injury attorney can help you. When you hire a lawyer who is willing to take a case to trial, value is added to your case in a number of ways. A good lawyer will seek every category of damages that applies to your case, and find ways to support those damages with evidence. The threat of trial alone adds to your bargaining power. The insurance company knows that it’s almost impossible for you to take a case to trial without a lawyer.

How long do I have to file a personal injury law suit?

A civil lawsuit must be filed within a specific period of time after an accident, injury, or dispute has occurred. Otherwise, the law suit will be dismissed and the injured party will have lost his or her rights to recover forever. This time limit is called the statute of limitations and may be different for different types of cases and claims.

For example, claims for injuries arising from a car accident usually must be filed within two years of the date of the accident. Claims for injuries resulting from medical negligence, commonly known as medical malpractice, must be brought within two years from the date of the doctor’s negligence, or within two years of the date that the patient knew, or reasonably should have known that the medical negligence occurred and caused his or her injury. Because the statute of limitations applies differently to different personal injury claims and because this statute can bar your claim forever, it’s important that an injured person contact an experienced attorney immediately following an accident, injury or dispute.

Do I have any legal options if I am injured by a defective product (such as a defective car, truck, gun, motorcycle, toy, or prescription drug)?

A person who is injured by a defective product may be able to recover compensation from the manufacturer, distributor, and/or seller of the product under theories of negligence, strict liability, and breach of warranty. If you are injured by a product, keep the product and all of its parts in safe place and in the same condition it was in at the time of the injury. Do not attempt to repair the product.

The general rule for recovering under the theory of strict liability is that an injured person may recover if he or she was injured by a product that it is not reasonably safe for its intended use. Under West Virginia law, it’s no excuse that other manufacturers are making similar products that are also not reasonably safe. If you were injured as a result of using a product as it was intended to be used or in a way that was reasonably foreseeable, you may have a claim.

What if I am injured by the negligence of a physician or other health care provider or hospital?

If you are injured by the act or omission of a physician or other health care provider, you may have a claim for medical malpractice. In West Virginia, in order to recover against a health care provider, a patient must prove that the health care provider failed to exercise the degree of care, skill and learning required or expected of a reasonable, prudent health care provider acting in the same or similar circumstances and that such failure caused the patient’s injury or death.

West Virginia law also provides for claims based on a “loss of chance” theory. To recover under this theory, the patient must prove “that the health care provider’s failure to follow the accepted standard of care deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury to the patient, the plaintiff must also prove, to a reasonable degree of medical probability, that following the accepted standard of care would have resulted in a greater than twenty-five percent chance that the patient would have had an improved recovery or would have survived.” WV Code §55-7B-3(b)

What is a wrongful death claim?

Whenever the death of a person is caused by the wrongful act, neglect, or default of another, then a duly appointed, personal representative of the deceased person can bring an action for wrongful death. A jury may award damages (compensation) to the surviving spouse and children, including adopted and stepchildren, brothers, sisters, parents, and any other persons who were financially dependent upon the decedent at the time of his or her death. Such compensation may be awarded for the following: (1) Sorrow, mental anguish, and solace (which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent); (2) compensation for reasonably expected loss of income of the decedent and services, protection, care and assistance provided by the decedent; (3) expenses for the care, treatment and hospitalization of the decedent; and (4) reasonable funeral expenses. W. Va. Code § 55-7-6.

Do I have a claim if I was injured in an accident at work?

You may have a personal injury claim if you were injured at work. However, this depends on a number of factors such as the cause of your injuries and whether you are covered by Workers’ Compensation Insurance. Although an employer in West Virginia is generally immune from suits for injuries covered by Workers’ Compensation, you may be able to recover money damages directly from your employer with a deliberate intent claim. To recover compensation for your work-related injuries under a deliberate intent claim, you must either prove (1) that your employer or their agent acted with a conscious, subjective and deliberately formed intention to produce your injury, or (2) you must prove the following five statutory elements.

a. That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;

b. That the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;

c. That such specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;

d. That notwithstanding the existence of the facts set forth in subparagraphs (a) through (c), such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and

e. That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition.

Most successful deliberate intent claims are won by proving the above five elements rather than proving that the employer intentionally injured the employee. Because of these statutory requirements, deliberate intent claims are complex and often difficult to prove. Thus, it’s important to involve an attorney who is experienced in litigating work-related claims as soon as possible following an injury on the job.

How much is my claim for injuries worth?

Each case varies, but you may be compensated for a number of things including all medical related expenses including physical therapy, chiropractic treatment and medication (both prescription and over the counter), lost wages including overtime, some benefits, and lost earning capacity), pain & suffering, emotional trauma, embarrassment, mental illness, property damage, and, in some instances, a jury may award punitive damages to punish the wrongdoer.

Choosing the right personal injury lawyer can significantly affect how much compensation you recover. For example, some personal injury lawyers are more aggressive than others and are more likely to seeking punitive damages than other lawyers. Personal injury lawyer Brooks West is fair and doesn’t file frivolous lawsuits, but when punitive damages are justified, he pursues them zealously for his clients. Mr. West would be happy to discuss the value of your case with you during your free consultation.

What if I was partly at fault for the accident?

Most states have laws that give rights to people even if they were partly at fault. This area remains one of the most raplidly changing areas of personal injury law, however, and is a good reason to contact an experienced law firm to help you.

What if I am unsatisfied with my current personal injury lawyer?

A good personal injury lawyer will always be available to consult with for any reason throughout your case, and they will be reasonably prompt in returning your calls. They will be on time and be honest with you about your options and the likely outcome of your law suit. They will consistently move your case forward and as quickly as possible.

If you are unhappy with your current attorney for any reason and want to change lawyers, you are expressly allowed to by law, and it is very easy to do so. In most cases of personal injury, the new law firm will take over the case and then they will split the percentage of your award with your old lawyer. This does not affect the money you recover.

It will not cost extra to switch to a new law firm at all. Switching law firms should happen if you are unhappy with your current attorney. They are working for you, and you should be satisfied with the work that they are doing. The law vehemently protects your right to choose your lawyer because often so much rides on the work they do.

My insurance company is offering me a settlement for my car accident. Should I take it?

No. Contact West Law Offices first. An insurance company may only offer you a minimal amount of money in exchange for you signing an agreement call a release that prohibits you from ever suing the insurance company as a result of your present injuries. Never accept an offer or sign such a document without first consulting an attorney to discuss your options. If you contact us and we don’t think we can do better for you, we’ll tell you so free of charge and advise you to take the offer.