Common Misconceptions about New York Personal Injury Cases, Part I: “I Almost Died in That Accident, So I Must Be Entitled To a Lot of Money, Right?”

flowerongrave.jpgThere are many common misperceptions about New York personal injury lawsuits. I will be discussing these in my blog posts over the next few days. One of the most common mistaken ideas is that if you “are almost killed” by someone’s negligence, you must have a case. This is usually wrong. Usually, when a client says to me “I almost died in that accident”, my response is, “then you ALMOST had a case”! Let me explain by way of examples.

Let’s say you were the victim of a medical mistake during surgery. Your rushed surgeon inadvertently and unknowingly cut an artery and, as a result, you bled internally for quite a while before anyone at that hospital realized it. As you were on death’s door, they figured it out, opened you up, and stymied the bleeding. End result: You spent and extra week in the hospital, but otherwise suffered no additional harm.

You call up a Central New York medical malpractice lawyer (hopefully this one!) and tell him you want to bring a New York medical malpractice lawsuit. You are angry that the doctor was so careless that he almost killed you. Besides, he never even apologized! Do you have a case? No, at least not one worth bringing. In New York (and in every other State as far as I know), “almost dying” because of medical malpractice or other negligence is not worth a dime in court, or in settlement. You are only allowed compensation for what you ACTUALLY SUFFERED, not for what you “almost” suffered. Since you were completely unaware you were “dying” at the time, you did not suffer even from the fear of death, much less from death itself.

Now let’s take another example. Let’s say you are on a motorcycle and a tractor trailer tries to pass another car as it comes straight at you. The last thing you remember before waking up in the hospital is the terror, the pure animal fear, of death. Now, is that worth something in court?

Yes. Fear is a type of emotional suffering that is, in fact, compensable in New York (and in all other states as far as I know) if accompanied by physical harm. But it is worth a lot less than you might think. Most juries won’t give much for fear. They prefer to compensate injuries they can actually SEE (and they will probably have plenty to see in a tractor-trailer-motorcycle crash case like this one).

There is at least one type of case where juries are sometimes very generous in compensating fear of death. That is where you actually die, but had no or little other suffering before death other than fear. In car crash cases, New York personal injury lawyers call this a “pre-impact terror” case. In the motorcycle example above, if you had never woken up, a jury might give your surviving family a lot of money for your “pre-impact terror”. Why? Because you experienced no other pain or suffering, and they sure want to give your family something for what you went through.

So remember, if you “almost died”, and are not otherwise injured, you probably have no case. But you have something much more valuable. Your life! So count your blessings.

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