Illinois Personal Injury FAQs
If you were recently injured in an accident in Illinois, you probably have questions about the legal process. The attorneys at John J. Malm & Associates Personal Injury Lawyers have the answers. Our experienced injury attorneys are ready to answer your call and provide a free consultation about your case.
- What Does it Mean if Someone Was Negligent?
- How is Negligence Shown?
- How Do Juries Determine the Amount of Damages to be Awarded?
- What Types of Damages Can Be Recovered in a Personal Injury Case in Illinois?
- Do You Still Have a Case if You Were Partly at Fault in Causing the Accident?
- Can a “Multiplier” be Used to Calculate the Settlement Amount?
- The Insurance Company is Calling, and They Want to Make an Offer of Settlement. Should You Speak with Them?
- How Do Personal Injury Lawyers Charge for Their Services?
- How Are Unpaid Medical Bills, Medical Liens and Insurance Liens Handled in a Personal Injury Case?
- What is a “Lien”?
- What Types of Liens or Can I Expect to be Filed in My Injury Case?
- What Are the Common Mistakes to Avoid After an Accident?
- What Does a Personal Injury Lawyer Do?
- When is it Worth it to Have a Lawyer for My Injury Case?
- How Long Do You Have to File a Personal Injury Claim in Illinois?
- How Long Does It Take for Most Injury Case Claims to Wrap Up and Receive Money?
Negligence is defined as “the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not, under circumstances similar to those shown by the evidence.” IPI 10.01.
In Illinois there are specific elements that must be proved to establish negligence in a personal injury case. The plaintiff must meet the burden of proof, by a preponderance of the evidence, to show: (1) that the defendant is liable for the accident in question by showing that the defendant breached a specified duty of reasonable or ordinary care (has committed negligence); and (2) that the accident was caused by the defendant’s negligent actions; and (3) that the plaintiff was injured and suffered compensable damages as a proximate result.
Proving Negligence in an Illinois Injury Case
The Illinois Pattern Jury Instructions (IPI 10.01) define negligence as the failure to act with ordinary care for the safety of the plaintiff. For example, a car accident may have been caused due to negligence based on evidence that a left-turning motorist failed to operate a vehicle in the exercise of ordinary care, by failing to yield the right of way to an oncoming vehicle (i.e., breached the duty to use ordinary care when turning left).
Juries decide issues of negligence by considering whether the defendant breached a specified duty of care owed to the plaintiff:
“It was the duty of the defendant, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff and the plaintiff's property.” IPI 10.01.
Proving Damages in an Illinois Personal Injury Case
The amount of monetary damages a plaintiff will recover depends directly on the severity of the injury or harm that resulted from the negligence (i.e., what was the nature and extent the injuries that resulted from the car accident?). The greater the resulting harm, the greater the amount of monetary damages that will be awarded. Pursuant to IPI 30.01, a jury impaneled to hear a negligence case will be instructed to consider the relevant facts which tend to support the claim for damages -- the facts establishing the nature, extent and duration of the injury or harm.
- How severe was the injury that was caused? (For example, did the plaintiff have to undergo surgery because of the injury received?).
- Were the plaintiff’s claimed injuries solely due to the accident? (was there a competing cause?).
- Was there a preexisting medical condition? (i.e., a previous back injury or a complaint of pain in prior medical records tending to show that the plaintiff had previously suffered from the claimed injury).
- What was the total cost of the medical treatment (the total amount of the medical bills)?
- Did the injuryprevent the plaintiff from participating in activities of daily living? (If so, for how long?).
- Did the plaintiff suffer a permanent injury? (How long will he or she likely endure this condition?).
- Did the plaintifffully recover from the injury? (How long did the recovery take?).
In Illinois, the various types of damages you may recover in a personal injury case are set forth in the Illinois Pattern Jury Instructions (IPI 30.01 -30.23). The specific types of damages you may be able to claim include:
- Damages for Medical Expenses: the cost of your medical bills, past and future, that have been paid or for which you are liable, regardless of whether you have health insurance; provided the charges are reasonable in amount, Baker v. Hutson, 333 Ill.App.3d 486 (5th Dist., 2002).
- Damages for Physical Pain and Suffering: shown by evidence of a physical injury, Carter v. Azaran, 332 Ill.App.3d 948 (1st Dist., 2002).
- Damages for Emotional Distress: either intentionally or negligently inflicted; must be direct physical impact to the plaintiff or, if a bystander, he or she must be situated within the zone of danger, Rickey v. Chicago Transit Authority, 98 Ill. 2d 546 (1983)(must be so close to the incident that he or she is subjected to a high risk of impact from the incident itself).
- Damages for Disability: shown by the “absence of competent physical, intellectual or moral powers”, Obszanski v. Foster Wheeler Const., Inc., 328 Ill.App.3d, 550 (1st Dist., 2002)(temporary or permanent loss or diminishment of ability to enjoy life).
- Damages for Loss of a Normal Life: shown by “the inability to pursue the pleasurable aspects of life”, Jones v. Chicago Osteopathic Hospital, 316 Ill.App.3d. 1121 (1st Dist., 2000).
- Damages for Disfigurement: shown by evidence that the plaintiff is "less complete, perfect, beautiful in appearance of character”, Kresin v. Sears, Roebuck & Co., 316 Ill.App3d 433 (1st Dist., 2000).
- Damages for Lost Income or Wages: past and future losses may be recovered, but there are foundational requirements that must be satisfied to show that future wages claimed are reasonably certain to occur. LaFever v. Kemlite, 293 Ill.App.3d 260 (1st Dist., 1997).
The estimated settlement range or verdict potential in an injury case may be influenced not only by the facts surrounding the defendant’s negligence, but also by the amount of comparative negligence of the plaintiff (the degree to which the injured person’s own conduct contributed to the injury-causing event). If there is evidence supporting some amount of comparative negligence on the plaintiff (50% or less), then the settlement or verdict will be reduced (by the percentage of the plaintiff’s negligence that contributed to the cause of the accident). However, in cases in which the injured person’s comparative negligence is more than 50% of the total amount of fault (51% or more), there will be no recovery.
Unfortunately, there is no single formula, such as a multiplier, that can be used to precisely calculate the settlement value of a case. There may be an entire range of possible outcomes that are dependent on the specific facts and circumstances of your individual case. Simply trying to multiply the sum of your medical bills or compare your case to one you may have read about in the news is not a reliable way to estimate case value. For every case that made the news for its record-breaking verdict amount, there are thousands more that did not, which you will never read about. To learn what your personal injury claim is worth, and what steps you can take right now that will help maximize your recovery, you should discuss the specific facts with a knowledgeable personal injury lawyer and get a detailed analysis. An experienced lawyer will know the best way to document, present and prove your damages to help you obtain the highest possible recovery.
It is best not to speak to the insurance company without first receiving some legal advice. At first, the insurance company may call you and appear willing to extend an offer of settlement (usually a “lowball” offer) in the hope of quickly settling and closing an otherwise valuable claim. Do not be fooled into accepting an offer of settlement before you have completed the necessary medical treatment and fully understand the extent of your injuries. It is not advisable to immediately return the insurance company’s phone call or respond to communication. Instead, seek legal advice and learn your rights.
We understand that, at first, an insurance company will reach out and may even appear sympathetic to your situation. Be careful. If you have never been involved in an accident claim before, you will not know whether the settlement offer is reasonable, or even if the insurance company is negotiating in good faith. The adjuster’s friendly nature belies his true intent: to close your claim as soon as possible -- for the least possible amount. Speaking to the insurance company will likely work against you and often will result in you receiving far less than what your case was worth.
Our Naperville personal injury lawyers are compensated solely on a contingent fee (or, “contingency fee”) basis. You will owe nothing unless we recover damages for you. The professional fee for our services is entirely contingent on achieving a successful recovery for you. If we do not collect, there is no fee. Contingent fees are typically 33.33% (one-third) of the total or gross amount that we recover for you in your claim or lawsuit.
We will advance all the necessary costs during the litigation. Costs may include medical records fees paid to your doctor, filing fees to the clerk of court, Sheriff’s service fees and ordinary costs paid for subpoenas, depositions and expert witnesses. In certain cases, we may incur travel or mileage expenses. We will be reimbursed only if a successful settlement is reached. You will always receive a detailed statement showing the costs we have incurred on your behalf. Just like our contingency fee, if no recovery is made, you will not be charged for any of the costs we incur.
Medical treatment providers will generate bills for hospital stays, surgeries, consultations, physical therapy, medications, and other expenses in every injury case. Unpaid balances for medical treatment can be filed against and paid from the proceeds of settlement. This is referred to as a “lien.” When a lien is filed for unpaid medical bills, it must be paid from the client’s settlement recovery.
A lien is a legal right of payment or reimbursement belonging to a third party, such as a doctor, hospital or insurance company, that is filed against and seeks payment from a client’s personal injury case. In many Illinois personal injury cases, it is common that a lien for unpaid medical bills, such as a physician’s lien or hospital lien, will be filed against client’s claim. When medical bills have been paid by health insurance, an insurance lien, known as a “subrogation lien” may similarly be filed. Liens must be resolved, either through negotiation or an adjudication, before a final distribution of settlement can be made.
- Unpaid Medical Bills: When someone sustains injuries due to an accident, they may have unpaid bills for the medical treatment they received, either because the injured person lacked health insurance or because the cost of treatment exceeded the benefit amount. In some instances, a hospital may refuse to accept payment from health insurance, resulting in an unpaid balance. The debt created by unpaid medical bills is the responsibility of the injured person (unless a minor). However, not every medical bill will necessarily become a lien. Amounts for unpaid bills will only be deducted from the client’s settlement proceeds if: (1) the provider has filed a lien seeking payment; or (2) the client specifically requests that the unpaid bills be paid from his or her settlement.
- Hospital Liens and Physician Liens: Hospital liens and physician liens are statements for unpaid bills that are filed by medical treatment providers filed under the Illinois Health Care Services Lien Act, to recover the cost of treatment from the legal case. When a lien is filed for unpaid bills, the hospital or treatment provider becomes a “lienholder”. Liens for unpaid medical bills that are filed in the case attach to the settlement proceeds until resolved; however, under the Act, the total amount of the liens shall not exceed 40% of the plaintiff’s (gross) recovery.
- Insurance Liens (Subrogation Liens): If the injured person’s health insurance carrier (for example, Blue Cross Blue Shield) or auto insurance carrier (for example, State Farm) has paid medical expenses, the insurer may have a right of reimbursement referred to as a subrogation lien, allowing the insurer file a lien and seek reimbursement of the amounts paid from the injured person’s settlement or judgment. Subrogation liens can be negotiated and reduced in many cases based on the amount of the plaintiff’s comparative fault or the un-collectability of the full value of the claim due to a defendant’s limited liability insurance.
Any settlement amount obtained must account for unpaid medical bills and liens. In many cases, through successful negotiation, lienholders such as medical providers and insurers will agree to accept a reduction of their lien. An experienced injury lawyer knows how to negotiate and comply with legal requirements to ensure that the client’s liens have been fully resolved.
With over 85 years of combined injury litigation experience, our Naperville personal injury lawyers know that there are some common pitfalls you should try to avoid if you intend to file an injury claim:
- First, do not delay in seeking medical treatment in an emergency room if you believe you have suffered an injury from an accident. A hospital emergency room is best suited to diagnose, treat and document an injury. Also, do not delay in seeking follow-up care, if needed. Gaps in treatment because you were “hoping to get better” are understandable but will need further explanation later. Avoid any delay longer than one or two weeks. It is best to make and keep appointments with doctors and therapy clinics, etc., and follow-ups, on a timely basis. If you expect to receive a serious offer of settlement, you must first take your medical care seriously.
- Second, never speak with the insurance company or give a recorded statement for any reason, even if they want to offer you money in settlement. You should consult an attorney before making any statement, answering questions or engaging in a discussion about a settlement. It is likely too soon to know the nature and extent of your claimed injury – so do not volunteer any information about your injury or treatment without legal counsel. Speaking with the insurance company could severely diminish the amount you will receive or serve as evidence to be used against you later.
- Third, avoid the common misconception that you should not use your own health insurance. Some clients initially tell us, “I feel that I should not have to use my own insurance for my treatment, because I did not cause the accident”. Contrary to this belief, using your own insurance will help you maximize your settlement, by reducing the amount of unpaid bills (the “liens”, or unpaid medical bills) that must be reimbursed by you as a deduction from your portion of any settlement recovery. Your health insurance, if used, will generally result in the lowest amount of unpaid bills and will similarly lower the amount of any lien balance you will be required to pay out of the proceeds of your settlement.
A personal injury lawyer will investigate your claim, gather and preserve evidence, help you deal with medical bills, negotiate with the insurance company, review policies, prepare and send a settlement demand letter, prepare and file legal pleadings, conduct written and oral discovery, represent the client at trial and help negotiate and resolve unpaid medical bills and insurance subrogation liens.
Because personal injury lawyers generally work on a contingency fee basis (which means they will only charge a fee after they have obtained a settlement or verdict) and will be responsible to advance costs and finance the litigation themselves, they share your interest in achieving success. Personal injury lawyers, therefore, must not only carefully screen potential cases to evaluate the merits, but must also work with you to achieve a mutually successful outcome.
It's important to review the specific circumstances of your case and consult with a personal injury lawyer to determine the best course of action. A knowledgeable attorney can provide guidance based on the unique circumstances and applicable law in your case. Hiring a lawyer for your personal injury case may be well-advised. Here are just a few important things a personal injury lawyer can do:
- Get Compensation for Severe Injuries: If you've sustained severe injuries that require extensive medical treatment, surgery, physical therapy or rehabilitation, or have long-term consequences (permanency), a lawyer is needed to help you seek appropriate compensation, which may be significant.
- Litigate Disputed Liability: If there is a dispute regarding who is at fault in causing the accident, or if the other party denies legal responsibility for the accident, a lawyer will be needed to investigate, file suit, gather evidence and litigate you case.
- Confront Insurance Issues: Dealing with insurance companies and issues of case value or liability coverage can be complicated. If the insurance company for the at-fault person is offering a settlement you should not proceed without counsel to advise you. If your claim has been denied, you will need a personal injury lawyer who can file, litigate and negotiate the case on your behalf.
- Recover Lost Wages or Future Damages: If you've suffered lost wages due or if there is a potential for future damages from ongoing medical expenses, a lawyer can help calculate and pursue compensation. The types of evidence needed may be more complicated than merely producing a pay stub or medical bills; you may need testimony from a physician, an economist or even a vocational specialist to show the amount of your lost income. An experienced lawyer will know how best to proceed.
- Wrongful Death Cases: In cases involving the wrongful death of a loved one due to someone else's negligence, a lawyer is needed to seek justice and compensation for the surviving family members. Wrongful death cases involve special types of evidence, such as testimony from retained consultants and engineers, to prove allegations of negligence. Moreover, the court will not allow you to proceed with your case individually. You will need counsel to open the estate, appoint you as a special administrator and represent you on behalf of the estate.
- Negotiate a Fair Settlement: An experienced lawyer will know how to successfully negotiate a fair settlement with the insurance company, ensuring you receive the highest possible compensation.
- Resolve Unpaid Medical Bills or Liens: A lawyer can help negotiate your unpaid medical bills, or any insurance liens filed against your case. This may save you significant amounts of money when it is time to receive a distribution of your settlement.
- Navigate Complex Legal Issues: Personal injury law can be complex, and the legal process itself can be challenging. You should always consult with an injury attorney for guidance regarding legal procedures to ensure that you have met all deadlines and fulfilled all necessary requirements.
Statute of Limitations
In Illinois, there is a two-year statute of limitations, which limits the time allowed for filing a personal injury claim. In most personal injury cases (such as car accident, dog bite, nursing home injury or premises liability claim), the time allowed to file a lawsuit is two years from the date of the accident, or the date when you discovered (or should have discovered) that you suffered an injury due to someone’s negligence. If you do not file a lawsuit within the required time, your claim will be barred.
Keep in mind that there are exceptions to the two-year rule, which can either shorten or extend the time allowed for you to file a complaint.
Things could shorten the time allowed (less than two years) include:
- the nature of the claim or accident (such as one year for dram shop liability); or
- the type of defendant involved (such as a local or municipal governmental entity).
Things that could extend the time allowed (more than two years), include:
- If the injury is a workers’ compensation claim (three years).
- If the plaintiff was under 18 years of age (the 2-year time period does not begin to run until his or her 18th birthday).
- If the plaintiff was disabled, the time period would be extended during the period of the person’s disability; and
- If the defendant left the state of Illinois, the running of the applicable time period would be stopped and would resume upon his or her return.
Statute of Repose
There are also statutes of repose, which serve as absolute deadlines. A statute of repose will strictly end the time you have to discover you were injured due to negligence, such as in medical malpractice (4 years after the date of treatment for adults, and 8 years after treatment for minors until age 22), product liability (10 years after the product was manufactured) or negligent construction (10 years after the building or improvement was completed).
Knowing precisely how the applicable statute of limitations or statute of repose will affect the time you are allowed to file your case requires careful analysis. To understand your rights and ensure that your claim is timely filed, it is advisable to consult with a personal injury attorney as soon as possible.
In general, some personal injury cases can be resolved within a few months through settlement negotiations, while others, especially those that must be litigated or go to trial, can take years. The duration of time needed for an injury case to conclude and receive compensation can vary widely depending on the complexity of the case, the severity of the injuries, the legal processes involved, and the willingness of the parties involved to negotiate settlement or go to trial.
No two cases are exactly alike, and unique challenges may still arise during what may initially appear to be a simple case. It's essential to consult with a knowledgeable personal injury attorney who can provide guidance on the most likely timeline for your case.
John J. Malm & Associates is a Naperville personal injury firm that exclusively represents individuals and families who have suffered an injury or loss due to an accident. You may be entitled to a substantial settlement if you have been injured. Call 630-527-4177 to reach our Naperville office, or 630-524-2323 in St. Charles, and receive a free consultation with John or one of our knowledgeable attorneys. There is no obligation to speak with us. If you decide to retain us, there will be no fee charged unless and until we collect for you.