In catastrophic injury cases, it is dependent upon how soon you reach maximum medical improvement for your catastrophic injury and the nature of the catastrophic injury. If it is something that is going to need lifetime treatment, no matter what a doctor does, then the case can probably be resolved relatively quickly, within six months, even though the person is under active medical care. On the other hand, if the outcome is not going to be known for a while, then you have to wait in the hopes that your outcome from the doctor, suggests a permanent prognosis, and permanent treatment recommendations before you have to file a suit.
There really is no set time for how long it takes the process of catastrophic injury case. Once you file suit in a catastrophic injury case, I would say the average time to go to trial is probably about a year to a year, and a half. With catastrophic injury cases, you do have a tendency to have experts witnesses involved. It is probably closer to the year and a half time-frame to go to a trial, because of expert’s involvement, and depositions in this legal process.
Catastrophic injury cases, in my experience, usually end up with a settlement for two reasons. The first reason is that they exceed the policy limits held by the person who caused the accident, and the second reason they settle versus going to trial is that the defendant’s insurance company is extremely nervous about the jury coming back and entering a judgement for a large sum of money. Once they have done their discovery or due diligence they are more anxious to try to settle in order to protect themselves and protect their insured.
If a catastrophic injury victim dies after a lawsuit is filed there has to be a substitution of the parties, and the family will then, in essence, take over the lawsuit. There could be two types of claims made, they are not duplicative, and there are two types of claims made when this happens. One of them is for a wrongful death of the accident victim alleging that the accident caused the heirs of the catastrophic personal injury victim to lose a loved one. The damages for that are wrongful death damages that are allowed by Kansas law. The second type of claim that is still available is the survival cause of action. This is a statutory right to continue with the lawsuit through the executor of their estate, and that executor of the estate recovers the damages that the catastrophically injured personal injury victim would have been able to recover had they survived the injuries from these accidents.
Therefore, they are two separate distinct cases that would arise if a catastrophically injured personal injury victim dies after they file a lawsuit. Most attorneys should know how to re-plead a case when this unfortunate event happens.
My advice to folks is that if you have never been through this, and you do not know how to assess values for future, past damages, and lost wages, etc. then you need to obtain the advice of an experienced attorney who has been through the process of settling and trying these cases. That attorney will be able to tell you the relative fairness of the offer from that insurance company. As far as whether or not you should speak with an insurance company, my advice is that before you speak with an insurance company, you should speak with a lawyer, and discuss the facts.
My advice has always been that you should not give a recorded statement to any insurance company without advice, consent, and the presence of your lawyer. With that said, when you speak with an insurance company for a settlement negotiation, they may or may not record your telephone calls. They may or may not use the information they obtain from you against you when you inadvertently make any admissions that you perhaps did not intend to make. It really does not cost anything to get you the assistance of counsel to discuss this possibility of speaking with an insurance company.
If you do not get the assistance of a lawyer before you speak with an insurance company, you may set your case in such a posture, that you will never be able to settle, even if you do retain a lawyer, because you have said something you should not have said to that insurance company.
With catastrophic injury cases, you have to understand that life expectancy is a big driver of the value of each case. If these catastrophic injuries occur early in a person’s life, these cases are significantly more valuable, and to some extent more complex. We have to predict over a greater period than we do, for a catastrophic injury that occurs on a person later in life.
Therefore, understanding life expectancy, and getting your doctors to understand life expectancy can be a significant component of your catastrophic injury case. The doctor needs to understand the life expectancy charts that Kansas follows, and needs to understand how a person’s medical condition before the accident might be relevant to either extend or shorten a person’s life expectancy. That can significantly influence the value of a personal injury claim.