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Determining Who to Sue in an Injury Case

contract.jpgThere are many factors injured individuals must consider when determining who to sue for their losses in a personal injury case. Thorough consideration of all the facts can help determine whether one or more parties may be liable for damages. A personal injury lawyer in Chicago may be able to uncover additional entities to pursue when a person is hurt.

Determining the Merit of the Case

To win an injury lawsuit, there are several legal elements that must exist. Most importantly, the plaintiff must be able to prove that the defendant is legally liable.

Breach of Contract

Breach of contract is a common factor in personal injury claims. For example, when a patient pays a physician's office to perform a series of diagnostic tests that the physician fails to perform and a misdiagnosis causes the patient to be injured, grounds for a lawsuit likely exist. Or, if an insurance company denies coverage for treatment under a policy even though the plaintiff is covered under the terms and conditions of the policy, and a patient is injured as a result, he may be able to recover compensation.

When pursuing a claim for breach of contract, the plaintiff must establish that the defendant failed to perform their duties, breached their obligation, and that their actions resulted in damages.

Negligence

Negligence leading to personal injury is one of the most common foundations for personal injury lawsuits. Establishing negligence requires plaintiffs to prove that the defendant had a duty to the plaintiff.

For instance, a surgeon hired to perform surgery has a duty to perform the surgery to the best of his or her ability and within established guidelines. If the surgeon fails to properly perform the surgery the way the patient could reasonably expect, then the surgeon has breached the duty to the patient.

Plaintiffs can also establish that certain factors contributed to the negligence of the responsible party. Known as the "but for" test, this requires establishing that the individual's negligence caused the injury. For example, the physician was drinking and had they not been drinking, they would not have misdiagnosed the patient's now terminal, but previously treatable condition.

Establishing Fault

Plaintiffs must have the ability to establish the fault of the defendant in a personal injury lawsuit. This is why it is crucial to maintain accurate and thorough records of the defendant's actions and the harms suffered by the plaintiff. 

Physical evidence can include:

  • Copies of medical records and notes
  • Receipts for services rendered
  • Photographs, video, and audio recordings
  • Witness statements
  • Pay stubs
  • Personal diaries

Evidence creates a clear picture of the incident and the impact the injury had on the plaintiff's finances, career, personal life, and overall health. The more thorough and accurate the evidence, the better.

The Statute of Limitations

Personal injury lawsuits must be filed within the applicable statute of limitations. In Illinois, the statute of limitations for personal injury lawsuits is two years. In most cases, this clock starts ticking the moment the injury occurs. However, the discovery rule means that the clock can start ticking at the time the injury is discovered.

The courts may also pause the statute of limitations. This can occur if the plaintiff is declared mentally incompetent, or if the plaintiff was a minor at the time the injury occurred. A personal injury attorney in Chicago can help a plaintiff determine whether they are within the statute of limitations.

Determining Whether Damages are Recoverable

A plaintiff may prevail in a personal injury lawsuit, and the courts may agree that the plaintiff is entitled to damages from the defendant. However, that does not mean that they will be able to recover compensation for damages. Prior to filing a personal injury lawsuit, the plaintiff and their attorney must first determine whether the defendant has the financial resources to pay any judgment that may be awarded by the court.

Determining whether damages can be collected often requires considering all of the potential at-fault parties. These can include:

  • A bar that over-serves a patron who later causes a drunk driving incident.
  • A hospital that negligently retains a physician with a poor patient safety record who later causes harm to the patient.
  • A trucking company whose violations of FMCSA regulations lead to safety issues that cause a motor vehicle accident.
  • A mechanic who fails to perform brake system repairs on a vehicle that later causes a motor vehicle accident because of brake failure.

There can be many individuals and entities whose actions contributed to causing a plaintiff's injury. For this reason, it is necessary to carefully review the evidence and determine a clear chain of events and actions that resulted in the plaintiff suffering a personal injury. 

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