Personal Injury Claims: How the Process Works

Understanding the sequence matters because settlement offers arrive at different stages, and an offer made before the full extent of injury is known is generally worth less than it appears.

Establishing negligence

Four elements must generally be shown: that the defendant owed a duty of care, that the duty was breached, that the breach caused the injury, and that the injury produced measurable damages.

Causation is frequently the contested element, particularly where a pre-existing condition exists. Insurers commonly argue that symptoms predate the incident, which is why prompt medical attention and accurate history-taking matter from the outset.

Comparative and contributory negligence rules vary substantially between states. Most apply comparative negligence, reducing recovery by the claimant's share of fault. A small number apply contributory negligence rules that can bar recovery entirely where the claimant bears any fault, which is a significant difference.

Statutes of limitation

Every state sets a deadline for filing suit, commonly one to three years from the date of injury, with variations by claim type and by defendant. Claims against government entities frequently have much shorter notice requirements, sometimes measured in months.

Missing the deadline generally extinguishes the claim regardless of merit. Discovery rules may extend time where an injury was not immediately apparent, but relying on them is risky.

This is the single strongest reason to seek advice early rather than waiting to see how an injury develops.

How the process typically unfolds

Medical treatment comes first, both for health and because the record of treatment forms the evidence of injury. Gaps in treatment are routinely used by insurers to argue that injuries were minor or resolved.

Investigation and evidence gathering follows: police reports, photographs, witness statements, medical records, employment records for lost earnings.

A demand letter setting out liability and damages is usually sent once the medical position is clear. Negotiation follows. If it fails, suit is filed, after which discovery — document exchange, interrogatories and depositions — occupies a considerable period. Mediation frequently occurs before trial, and most cases settle at or before that point.

Maximum medical improvement

Settling before reaching maximum medical improvement is a common and irreversible mistake. Until the medical position stabilises, the full extent of injury, future treatment needs and any permanent impairment are unknown.

Settlement is final. A release signed before the need for future surgery becomes apparent leaves no route back, regardless of how circumstances develop.

Early offers from insurers are frequently made precisely because the claimant's position is uncertain and the offer looks attractive against immediate financial pressure.

How damages are categorised

Economic damages cover quantifiable losses: medical expenses incurred and anticipated, lost earnings, reduced earning capacity, and out-of-pocket costs.

Non-economic damages cover pain and suffering, loss of enjoyment of life and similar. Some states cap these in particular claim types, notably medical malpractice.

Punitive damages are available only for conduct beyond ordinary negligence and are uncommon.

Fees and net recovery

Personal injury work is typically handled on contingency, commonly around one third of recovery, sometimes rising if suit is filed or the matter goes to trial. Confirm the percentage and the trigger points in writing.

Case expenses — expert fees, filing fees, deposition costs, medical record charges — are usually separate from the fee, and whether they are deducted before or after the fee is calculated makes a meaningful difference. Ask specifically.

Medical liens and health insurer subrogation rights may also reduce net recovery. Ask for an estimate of the net figure rather than the gross settlement, since that is what you actually receive.