Your Charleston Personal Injury Case: The Basics
Created by FindLaw's team of legal writers and editors | Last reviewed August 08, 2017
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Your mother was misdiagnosed at the CAMC Memorial Hospital and now has new symptoms. Your husband was shopping at the Charleston Town Center, tripped on a loose tile and broke his arm. Your son got hit by a foul ball at the Appalachian Power Park and now has a concussion. Personal injuries can happen in many ways and can be upsetting and confusing to deal with. Here is a basic guide to help you navigate through your personal injury case in Charleston.
The most important thing to do after a personal injury is to make sure any emergency medical needs are addressed. Once you have that squared away, though, you may wish to turn your attention to collecting information and evidence regarding the injury. It is usually a good idea to take photographs of the accident scene and jot down notes about the circumstances surrounding the incident. For more tips on how to make sure to capture information while the memories are still fresh, check out FindLaw's First Steps After an Injury article.
In some cases, personal injury matters are resolved simply with insurance companies. If you have any questions or problems with your insurer, however, or wish to file a complaint, you may contact the West Virginia Offices of the Insurance Commissioner. Many insurers have an administrative process for claims that should be followed, and it often allows for appeals of denials, etc.
Filing a Lawsuit
If you decide to bring legal action, keep in mind that you only have a limited time to do so. Statutes of Limitations are timeframes within which you must bring your action or lose the right to do so forever. These vary by state and type of case. However, in Charleston and the rest of West Virginia, you generally have two years from the time of an injury to bring a personal injury lawsuit.
Depending on the extent of the damages you are seeking, your case may be brought in the Charleston Municipal Court (amounts under $5000) or in the Kanawha County Circuit Court (amounts over $300).
The legal paper you will file to begin your case is called a "complaint." In this document, you will provide an overview of the facts surrounding the accident, identify the parties involved and briefly explain why you (the plaintiff) believe the other party (the defendant) is responsible and should compensate you for your injuries.
Generally, in a personal injury case, the plaintiff alleges that the defendant was negligent. To act negligently is to act carelessly in such a way that causes or contributes to an accident. In some cases, however, both parties to an accident are negligent - what happens then?
In a few states, if you are even 1% negligent, you are entirely precluded from bringing your action under the theory of contributory negligence. In Charleston, and the rest of West Virginia, however, under the modified comparative fault rule, so long as your negligence is not equal to or greater than the combined negligence of the other parties, you may pursue your action. However, your recovery will be reduced by the percentage of your fault. So for example, if you are 20% at fault and are claiming $10,000 in damages, you may still pursue your action for $8,000 or 80%.
What Damages Are Available?
The monetary compensation sought in a personal injury action is generally referred to as "damages." Damages are usually divided up into the tangible, "economic" losses (medical expenses, lost wages, property damages, etc.) and the less tangible, "non-economic" losses (pain and suffering, etc.). A plaintiff will usually seek both.
Check out this FindLaw article on Economic Recovery for Accidents and Injuries for a more comprehensive overview of available damages.
Certain types of damages are capped at a specific amount. For example, in medical malpractice actions in Charleston and the rest of the state, the non-economic damages are limited to $250,000, or $500,000 in limited, extreme cases.
If the accident and injuries were more than minor, you may want to consult with an injury attorney to assess your case. Initial meetings are often free of charge, and if you decide to work with the attorney, you can usually do so through a "contingency fee" arrangement (the lawyer is paid by receiving a percentage of your recovery). In such an arrangement, you don't pay if you don't recover anything.
For more information on what you can expect from a personal injury lawyer, as well as sample forms and agreements, check out FindLaw's section on Using a Personal Injury Lawyer.
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