10 Things About Catastrophic Injury Law You Didn’t Know

As the name implies, catastrophic injuries are devastating. Under U.S. Code Title 42, Health and Welfare, a catastrophic injury is defined as:

“an injury, the direct and proximate consequences of which permanently prevent an individual from performing any gainful work.”

Examples of catastrophic injuries include brain damage, spinal cord injuries, severe injuries or amputations to arms or legs, loss of an organ, or severe burns. They usually occur suddenly, without warning, such as an automobile accident, house fire, building collapse, industrial accident, medical mistakes, defective medical device or drugs, fall from height, or some other calamity.

This type of personal injury is the most serious, often leaving the victim with permanent disabilities, long-term effects, and an uncertain future. One thing that is certain, however, is a lifetime of special needs that may include 24/7 care, rehabilitation, surgeries, medication, lost income, and medical bills.

Fortunately, catastrophic injury law provides victims with some recourse. Here are ten things about catastrophic injury law you didn’t know.

1. No matter how severe or serious the injury, the recovery may be limited — One of the most common limits we encounter is a lack of or low limit of insurance coverage on the part of the responsible party. For example, if a driver runs a stop sign, causes a crash, and seriously injures another party, if the at-fault driver doesn’t have auto insurance and no one else can be held responsible, there may be no recovery despite the fact that a catastrophic injury resulted. In some cases, laws cap or limit non-economic damages — typically pain and suffering damages, resulting in a limited recovery.
2. You CAN afford a personal injury attorney — Many people don’t get representation right away, if at all, because they mistakenly believe they can’t afford legal fees or a lengthy lawsuit. Most personal injury attorneys work on a contingency basis, which means they get paid a percentage of the final settlement or award. With such an arrangement, victims of modest means can afford to hire the very best trial lawyers to pursue legal action, no matter how complex or lengthy.
3. While insurance coverage may be available, catastrophic injury cases are not “do-it-yourself” cases. This is no time to attempt to navigate an insurance claim on your own. Not only is doing so stressful for loved ones who would rather be at the victim’s side, there’s simply too much at stake for a layperson to attempt to learn and handle. Pursuing and securing the maximum compensation is crucial in securing the victim’s future. Early mistakes in the claims process (such as giving statements to an insurance company, failing to secure vital evidence, or making strategic mistakes), can damage or destroy a case. The law is very complex. Let the specialists within personal injury trial law navigate that for you.
4. The victim doesn’t receive the entire personal injury settlement. Once a catastrophic personal injury case has been settled, the settlement is also used to pay hospitals and medical providers. Depending on the circumstances, the health insurance company might have a contractual or legal right to be reimbursed out of the settlement. As noted earlier, the personal injury attorney’s fees and other legal expenses will also be paid out of the settlement. What’s left goes to the victim and typically covers pain and suffering, lost wages, and other non-economic damages.
5. It’s important to look beyond the victim’s immediate needs. It’s not just about the immediate after-effects on an accident such as hospital bills and wheelchairs. A catastrophic injury is for life, so it’s important to estimate the loss over the victim’s lifetime. For example, if a 40-year-old accountant earning $120,000 per year suffers a catastrophic injury, the loss of earning capacity might be about $3,000,000 over 25 years. Likewise, we’ll want to consider the additional surgeries and medical interventions that will likely be required over the victim’s lifetime. The experts in the case have to factor in the inflation rate for each type of cost involved (health care has risen faster than most other costs). In many catastrophic cases, experienced trial lawyers will employ life care planners and economists to develop care plans and testify about the economic losses over the victim’s lifetime.
6. Florida has a two-year statute of limitations for personal injuries. While two years may seem like a long time to sort things out, it’s important to get an attorney early on to investigate and negotiate your case and, if necessary, file a lawsuit within the allotted time period. If you don’t file a lawsuit within the statute of limitations, you’ll never be able to make a claim. Plus, the earlier you get skilled attorneys involved, the better chance of preserving evidence, finding witnesses and getting statements, and creating a strategy for success in your case.
7. Some personal injury firms aren’t firms at all, but rather referral services. In many cases, television and internet advertisements are from referral sources rather than actual law firms. The referral service pays all of the advertising costs, prompting people like you to call or request a callback. Meanwhile, local lawyers have signed up with the referral service to receive leads. Once you call in, your contact information will be given to one of these lawyers. This is a common model you should be aware of. You want to find a lawyer who actually handles and tries cases, not someone who will hand your case off to someone else. It’s important to know the track record, experience and skill set of the lawyer you choose to represent you.
8. Victims who were partially at fault can still file claims. Florida is a comparative fault state, which means a victim who was partially at fault can recover damages despite his or her own negligence. Determining damages is complicated by the victim’s own responsibility. The recovery will be reduced by the injured party’s degree of fault. Thus, if the victim were 50 percent at fault, his or her recovery would be reduced 50 percent. But a new law passed in 2023 says that victims who are over 50% at fault cannot recover anything.
9. When seeking counsel, trial experience is essential. The vast majority of personal injury cases are settled out of court, which means many personal injury attorneys have limited trial experience. Some may even prefer to quickly settle with an insurance company then move on to the next case. Insurance companies have little incentive to make a reasonable settlement offer when they believe the lawyer isn’t willing to take the case to trial. When seeking counsel, look for lawyers who have successfully tried a personal injury case to verdict. You want someone who knows a good settlement when they see one and who will fight to ensure you get one if settling out of court is not possible. The best settlements are obtained by the best lawyers who the insurance companies know can and will successfully try the case, and who have the financial means to take the case all the way to trial.
10. Look for a board-certified personal injury attorney. Just like some medical doctors are board certified and others are not, the same is true of attorneys. But fewer lawyers actually have board certification. The Florida Bar Board of Legal Certification certifies attorneys according to the highest standards of experience, ethics, education, examination and excellence. Board certification validates an attorney’s competence and expertise in their designated area of specialization. In order to become board certified, trial lawyers must have substantial experience in the field and sit for a grueling written examination.

Here at Leighton Law, our managing partner of Leighton Law, John Leighton, has been a board-certified trial lawyer since 1996 and has obtained some of the largest verdicts and settlements in Florida.

He has been hired by lawyers throughout the country to try their cases and is regularly sought out to teach trial lawyers throughout the United States.

We are a team of experienced trial lawyers committed to helping you recover financially as the result of a catastrophic injury in Orlando, Florida.