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  • Writer's pictureNicole Linko


Four things must exist in order to have a meritorious case. (1) There must be legal fault on the part of a party or parties. (2) That legal fault must cause an injury or death. (3) The injury or death must result in damages. (4) The party or parties who are legally at fault must have the ability to pay for some or all of the damages. All four elements must exist. If anyone of the four elements are missing, a case will not have merit. By merit, it is meant the recovery of money damages to compensate for the damages arising out of an injury that was caused by the legal fault of another.

LEGAL FAULT: Legal fault can be negligence or defective product. Negligence is failure to exercise ordinary care, which is the failure to act in the same fashion as a person of ordinary prudence would exercise in the same or similar circumstances. Legal fault is defined differently for a lay person, then it is for a professional such as a physician, nurse, hospital, or attorney. In product liability, legal fault is determined by whether the product was defective in its design, manufacture, or marketing, and the focus is on the condition of the product and not the conduct of the party that designed, manufactured, or marketed the product.

CAUSATION OF AN INJURY: Legal fault must cause injury to the body and/or property. The injury can be an entirely new injury, or a worsening of a pre-existing condition.

INJURY OR DEATH RESULTS IN DAMAGES: Damages are economic and non-economic. Economic damages are medical expenses that are necessary to treat the injury (past and future), and loss of earning capacity (past and future). Non-economic damages are for physical pain and mental anguish (past and future), physical impairment (past and future), disfigurement (past and future), and loss of consortium (past and future). In cases against healthcare providers there is a cap on non-economic damages of $250,000.00, and on wrongful death damages there is a consumer price index related cap that is presently approximately $1,350,000.00. There are no caps in damage claims against parties who are not healthcare providers.

ABILITY OF THE PARTY AT FAULT TO PAY: Most claims are paid by insurance companies who insure the party that is legally at fault. Insurance policies have limits on how much insurance money is available. In many automobile cases, the limits of insurance money may be as low as $20,000.00. If the party that is legally at fault has only $20,000.00 in insurance coverage and the claimant’s damages are $1,000,000.00, then the maximum amount the claimant is likely to recover is $20,000.00. Most individuals who are legally at fault do not have sufficient assets to pay damages beyond what their insurance will cover. Many healthcare providers carry $200,000.00 in insurance. On the other hand, some individuals and many businesses carry very large amounts of insurance.

CONTRIBUTORY FAULT: If the claimant is also at legal fault, the percent of legal fault on the part of the claimant that causes the injury and damages would reduce the amount of the recovery by the percentage that the claimant is at fault, provided, however, that if the claimant’s fault exceeds 50%, the claimant would not be able to recover anything.

SUBROGATION: Subrogation is a legal right of the claimant’s health insurance company who has paid for the claimant’s medical expenses and/or loss of earning capacity, to recoup such payments out of any recovery the claimant makes against the party or parties who were legally at fault. Subrogation arises in many ways, through worker’s compensation insurance, ERISA health insurance plans, contractual agreements between the claimant and the claimant’s health insurer, Medicaid, Medicare, and other ways as well. An example of how subrogation works is if the claimant enters into a settlement with the party whose legal fault caused the claimant’s damages, and the claimant’s insurer had paid $20,000.00 of the claimant’s medical expenses that were necessitated by the injury caused by the party that was legally at fault, then the claimant’s insurer would be entitled to be paid back $20,000.00 out of the $100,000.00 settlement. In most instances, the claimant’s attorney can negotiate a reduction of the subrogation amount. In some instances, the amount cannot be negotiated down. There can be instances where having to pay a subrogation claim can make pursuing the claimant’s claim against the party whose fault causes an injury economically not feasible.

STATUTE OF LIMITATIONS: A general rule of thumb is that a claim must be brought within 2 years from the date of the wrongful conduct on the part of the party who is legally at fault. There are exceptions that pertain to fraudulent cover-up of wrongful conduct, and whether the claimant could discover that wrongful conduct had caused an injury within 2 years. What is meant by bringing a claim is that a lawsuit must be filed in a proper court and diligence must be used to serve the citation/lawsuit on the party at fault. Just filing the lawsuit within 2 years is not enough. The claimant must use diligence to get the lawsuit papers served (delivered to) the party at fault.

CAVEAT/WARNING: The above statements are very general and not intended to be a detailed coverage of all the issues. To cover all the issues would take many thousands of pages, and such has been done in many legal treatises. The above overview is meant to give clients a thumbnail sketch of a meritorious claim.


The attorney will want to know the pertinent who, what, when, where, how facts, that will give the attorney information to determine if there is a potential claim. Often, the attorney can tell immediately that a necessary element is missing and that the attorney will not be successful. If the attorney believes that a potential claim exists, the attorney will want to obtain and examine any and all reports made by governmental officials that document the incident, medical records that document the injury, photographs, witness statements, medical bills, documentation pertaining to the claimant’s work history, salary history, and loss of time from work, the identity of all witnesses, all insurance policies, and what entity has or is paying the medical expenses. Sometimes it is immediately determinable that the case is meritorious, and sometimes it takes the gathering of many records, obtaining witness statements, research of applicable law, and more before the attorney can determine if the case has merit.

If the attorney and the claimant agree to pursue a claim, the claimant will sign a contract with the attorney, retaining the attorney. Such a contract usually is a contingent fee agreement where the attorney agrees to handle the case for a percentage of the recovery. The percentage retained by the attorney is usually dependent on the amount of time and money the attorney will have to expend in order to achieve a recovery of money damages for the claimant. The claimant will also be required to sign authorizations that permit the attorney to obtain medical records and other records that pertain to the claim.

In cases against healthcare providers, the attorney must obtain all medical records, imaging film, and statements, and then submit all of that to an expert in the field of healthcare involved in the claim. In order for a healthcare claim to succeed, a very technical report from a properly qualified expert has to describe with particularity that the healthcare provider at fault has breached the standard of care, what the standard of care is, what particular conduct on the part of the healthcare provider amounted to a breach of the standard of care, and further state in detail how such conduct caused the complained of injury.

If it is determined that a meritorious case exists and the attorney is able to provide evidence that substantiates each required element, the attorney will attempt to reach a settlement with the insurance carrier for the party at fault. An amount that achieves a settlement is an amount that the claimant will not want to risk by taking the case to a jury.

If a settlement cannot be achieved without filing a lawsuit, then the next option is to file a lawsuit against the party or parties at fault. Once a lawsuit is filed, the lawsuit or petition is filed at the court, the defendant(s) are served, and then the defendant(s) file an answer. Next is what attorneys call paper discovery commences. The parties serve on each other requests for the production of documents and interrogatories, which are aimed at obtaining evidence to prove a claim or defeat a claim. Next comes depositions, which is when a party or a witness is put under oath and questioned by all the attorneys in a case. Depositions are taken for several reasons: evaluate the parties demeanor, pin the party or witnesses story down, and to determine what the party or witness does not know.

Opportunities for settlement exist all along the way. Before the case goes to trial, there is often a mediation which is opportunity to settle a case. The mediator is an experience neutral who analyzes the case, the positions of the party, the evidence, and works to help the parties see the strengths and weaknesses in each other’ position. Whether a case settles at mediation or after, is a decision of the parties, and not the mediator. Mediation is a tool for the claimant to know the top dollar the insurance company will offer and for the insurance company to find out the lowest amount the claimant will take. Settlement occurs when the claimant decides he/she will be better off by taking a sure deal than risking it with a jury, knowing that a jury could give more, less, or zero.

If the case does not settle, then a jury trial is the next step. Juries are always a gamble. Every lawyer who has tried a lot of jury cases knows that good cases can be lost and bad cases can be won. The law prohibits juries from knowing anything about settlement negotiations. The rules of evidence that are enforced by judges often keep juries from hearing evidence that parties think is important. Every case that goes to a jury is different, and there is no way to predict outcomes, though many try. If the case has all four of the elements of a meritorious case, and overwhelming evidence supports the claimant on the first three elements, the claimant usually wins. However, most of those cases will have settled. Unfortunately, the cases that go to jury trials are usually cases where there is a really hard issue on one of the first three elements. In a jury trial, the jury has to find in the claimant’s favor by finding legal fault on the part of the other party, that the legal fault caused the complained of injury, and the amount of damages.

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