By Thomas Henson Jr.

It’s inevitable: If you ride enough miles, you will eventually witness or be a victim of a collision with a car or truck. Each year in the United States, about 50,000 cyclists end up in hospital emergency rooms after a motor vehicle crash. In my law firm, we have handled many cases of serious cyclist injuries, so I’ve gained a lot of first-hand experience answering the most common question: “What now?” What is the legal process? How can you improve your chances of getting full compensation for your injuries?

Inside all the complex legal wrangling for compensation are two basic concepts—negligence and damages. Negligence, in the simplest terms, means that the driver of the motor vehicle was at fault in the accident. In lawyer-speak, the driver must have breached some kind of duty in the operation of the vehicle, resulting in injury to someone else. It’s not enough that the car hit you; the driver had to have done something wrong. For example, if a driver runs a stop sign and hits you on your bike, that is an obvious breach—all drivers know that they are required to stop at a stop sign. If, however, you suddenly turn your bike in front of the car, there is no negligence on the part of the driver.

Once you prove negligence, then your personal injury claim boils down to damages, or the costs of the accident. There are three basic forms of damage: medical expenses, lost wages, and the hard-to-define (but very real) “pain and suffering.”

The first two items, medical expenses and lost wages, are direct economic damages. The negligent driver, or most commonly his insurance company, is responsible for reimbursing you for all your medical bills. Everything. That includes the cost for the ambulance, emergency room, x-rays and other treatment, doctor visits, and physical therapy. All those expenses must be paid by the driver who caused the accident or his insurance company. Keep track of any out-of-pocket costs, including mileage to doctor’s appointments, too. You should be reimbursed for all of it.

If your injury causes you to miss time from work, or otherwise lose income due to your inability to work, then the negligent driver must pay those losses, as well. It gets more complex when one considers gross wages versus net wages, or if you are paid on salary instead of hourly, or if you have to use sick days during your recovery. Worse, it’s possible that you might lose a chance to be promoted or to earn extra sales commissions due to extended time away from work. You’ll need to document all lost earnings with pay stubs, statements from your employer, and copies of past tax returns. Then, an attorney can perform a detailed analysis of all such losses to insure that nothing is missed, and that the person responsible, or their insurance, covers all those losses.

“Pain and suffering” is the toughest item of damages to evaluate and prove. How tough? Check out this actual North Carolina jury instruction:

“Damages for personal injury also include fair compensation for actual past physical pain and mental suffering experienced by the plaintiff as a proximate result of the negligence of the defendant. There is no fixed formula for placing a value on the physical pain and mental suffering. You will determine what is fair compensation by applying logic and common sense to the evidence.” [emphasis added]

“Logic” and “common sense” are not mathematical. When I negotiate with an insurance company, I gather and present evidence about exactly how the accident has affected my client. Different injuries affect different people very differently. Take, for example, the loss of a pinkie finger. For someone with a desk job, that injury is certainly worth something, but it may not be life-changing. However, for Billy Joel, piano player extraordinaire, the loss of that finger is devastating to his work and would be worth much, much more. Or, consider a chronic muscle injury to the lower back of a single mom with a two-year-old son. Because that injury prevents her from picking up her child and doing other activities required to care for her child, the value of her “pain and suffering” may be strikingly different from the same injury suffered by a person who doesn’t have young kids. But, what if that childless person is a construction worker who needs a strong, healthy back in order to earn a living and care for his elderly parent? There are endless scenarios for each type of injury.

However, insurance companies will not automatically take your word for the amount of your losses. The burden is on you to prove it to them. That’s why it is critically important to document the specific impacts your injury has had on your life. I encourage my clients to keep a daily diary to help prove how the accident has changed your life. The more hard evidence you can produce, the better off you will be.

In short, your biggest job after an accident—aside from getting well—is to document, document, document. Document your medical bills, your lost earnings, and the life impact of your injury.

Then, when you’re ready, get back on your bike.

Ride safe, and I will see you on the road!

# # #

Thomas Henson Jr. is an avid cyclist, and finds much happiness in bike rides with his family and friends.  He leads the complex injury litigation department of HensonFuerst Attorneys. He can be contacted at ThomasHenson@lawmed.com.