I was injured. Can I file a lawsuit for my injuries?

You can make a claim against another party or parties if they are more at fault for your injuries than you are. In general, when a person is injured as a result of another person's negligence, the injured party may pursue a claim against the party or parties that caused the injuries. Any personal injury case depends on liability, damages, and whether or not you can collect from the negligent party or parties. Delaware follows the doctrine of modified comparative negligence. Under this doctrine, a claimant's action is not barred unless his negligence exceeds the combined negligence of all defendants, but the claimant's recovery is diminished in proportion to his degree of negligence.

Personal injury law attempts to cover all areas and types of injuries suffered by individuals. Some of the most common areas are automobile accidents, premise liability, medical malpractice, and product liability, among others. Whether or not you are entitled to compensation may depend on the type of accident that caused the injury.

AUTOMOBILE ACCIDENTS

Delaware operates on a form of the "no­fault" system that, in general, requires that the owner or operator of a motor vehicle carry no­fault (and liability) insurance coverage. No­fault insurance coverage compensates the insured for some expenses without regard to who was at fault for the accident. Reimbursement is provided for reasonable medical expenses and loss of income arising from the accident within two years of the date of the accident to the extent of the benefits available.

In addition to the no­fault benefits, you may present a personal injury claim to a negligent driver's insurance company for other compensation. Personal injury claims are generally separate from, and are in addition to, no­fault benefits. A personal injury claim can be made for many types of losses, which you can show, arose from a collision, which was not your fault. However, personal injury claims generally cannot include benefits that are required to be provided under no­fault insurance. Your claim can compensate you for non­economic damages such as pain and suffering; loss of enjoyment of life; disfigurement; permanent injury; impairment of earning capacity; inconvenience, etc. You can also make a claim for any expenses that would normally be covered under no­fault (medical/rehab, lost wages, essential services) but which exceed the no­fault dollar or time limitations.

Liability claims are usually the subject of negotiation between your lawyer and the liability insurer for the negligent party. Lawsuits are generally filed when negotiations fail. If you file a lawsuit against a negligent driver, your attorney will need to prove that the other party was negligent and that the other party's negligence caused injuries that resulted in compensable damages.

Uninsured and underinsured motorist coverage is coverage that has been purchased to cover you (and people claiming through your policy) if you are injured through the fault of an uninsured motorist or underinsured motorist. The benefits for uninsured motorist are the same as under the liability bodily injury coverage, except the claim is made against your own insurance company. If you are not at fault in the accident, the insurance company cannot penalize you in any fashion for making a claim against your uninsured motorist coverage.

PREMISE LIABILITY

If you were injured at someone else's home or at a commercial establishment, the person responsible for the premises may be found liable. This can cover a variety of situations including slip and falls, dog bites, assaults, among others. The owner or operator of the property must have notice of the defect or circumstances that caused your injury prior to the injury having occurred. The notice can either be actual notice or implied notice, meaning the owner knew or should have known of the dangerous condition given all of the surrounding facts and circumstances. The person liable for your damages is the party in control of the property. That party is responsible for the care, maintenance and inspection of the property. For example, an owner may not be the responsible party if he or she has leased the property to another party who actually has control over the premises. The standard of care owed to a trespasser is usually less than that owed to a person who has permission to be on the property.

PRODUCT LIABILITY

Injury can result from defective products, as well. When a company designs and manufactures a product, they have a responsibility to ensure that anyone exercising reasonable care within the expected parameters of usage expected for the product will not be injured. In a product injury case, you do not have to prove the manufacturer or vendor was negligent. You only have to prove that the product was defective due to faulty design, error in manufacturing, or that the manufacturer did not provide sufficient warning of potential risks or failed to provide adequate instructions. This concept is called strict product liability. A lawsuit can be brought against anyone participating in the chain of manufacture for that product, from the manufacturer, to the designer to the retail store. There are limits to product liability law such as when the product is too old or if the consumer was careless in using the product.

MEDICAL MALPRACTICE

When a health care provider causes injury due to his or her failure to meet the accepted standards of care for that particular field of expertise, you may have a claim for medical malpractice. A claim can be brought against physicians, dentists, nurses, therapists, hospitals, clinics, and pharmacists among others. Some examples of medical malpractice include incorrect diagnosis, failure to treat, improper treatment, delay in treatment, prescription errors, surgical errors, rendition of services without informed consent, etc. Medical malpractice claims are some of the most difficult to prevail in and are quite costly due to the need for qualified expert review and testimony.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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